Legislature(1999 - 2000)

03/09/1999 09:02 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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SENATE BILL NO. 33                                                                                                              
"An Act relating to the Task Force on Privatization;                                                                            
and providing for an effective date."                                                                                           
                                                                                                                                
                                                                                                                                
This bill was heard in committee once before.                                                                                   
                                                                                                                                
Senator Al Adams returned to the separation of powers                                                                           
debate from the previous meeting.  He thanked the sponsor,                                                                      
Senator Jerry Ward, for sharing the legal opinion written                                                                       
by the Legal Services Division.  He said the Legislature's                                                                      
opinion differed from the Department of Law. The two                                                                            
amendments he was offering would address those issues.  One                                                                     
amendment addressed the selection of members and would                                                                          
assign selection to the Legislature rather than the                                                                             
Governor as stated in the bill.  The second amendment would                                                                     
remove the Governor from the selection process and grant                                                                        
per diem to the public members of the commission.                                                                               
                                                                                                                                
Senator Al Adams moved for adoption of Amendment #1, which                                                                      
would remove members appointed by the Governor and the                                                                          
local boundary commission position. Senator Sean Parnell                                                                        
objected.                                                                                                                       
                                                                                                                                
Senator Gary Wilken requested the question be divided to                                                                        
separate the boundary commission appointment and the                                                                            
appointments by Governor's office. Co-Chair John Torgerson                                                                      
granted the request. Amendment #1A would change page 2 line                                                                     
16 deleting "11" and inserting "8" and delete lines 17 and                                                                      
18 delete two members selected by the governor. Amendment                                                                       
position of the local boundary commission member. Amendment                                                                     
public members of the commission.                                                                                               
                                                                                                                                
Co-Chair John Torgerson repeated the Department of Law's                                                                        
concerns with the separation of powers issue. The                                                                               
Legislative Legal Services Division gave the opinion that                                                                       
because the commission was advisory it was not subject to                                                                       
separation of powers rules. Co-Chair John Torgerson said he                                                                     
had no opinion on the amendment but had felt it was                                                                             
important that the Administration be involved in the                                                                            
selection of the commission members. Amendment #1A was                                                                          
adopted without objection.                                                                                                      
                                                                                                                                
Senator Gary Wilken commented on Amendment #1B, saying he                                                                       
felt that representation from the local boundary commission                                                                     
was important.  Senator Al Adams pointed out that the                                                                           
Governor would also appoint the local boundary commission                                                                       
position and because the other Governor appointed positions                                                                     
had been removed, this should be removed also. He suggested                                                                     
the local boundary commission could be consulted in an                                                                          
advisory capacity. Amendment #1B failed by a vote of 2-4-3.                                                                     
Senator Loren Leman and Senator Al Adams cast yea votes.                                                                        
Senator Pete Kelly, Senator Lyda Green and Senator Randy                                                                        
Phillips were absent.                                                                                                           
                                                                                                                                
Co-Chair John Torgerson asked Senator Al Adams if Amendment                                                                     
Senator Al Adams affirmed and suggested technical                                                                               
corrections could be made if necessary. Amendment #1C was                                                                       
adopted without objection.                                                                                                      
                                                                                                                                
Co-Chair John Torgerson noted the conceptual change to page                                                                     
2 line 16 reflecting that the commission would consist of                                                                       
nine members.                                                                                                                   
                                                                                                                                
Senator Al Adams spoke to Amendment #2 and moved for                                                                            
adoption. He explained that with the removal of the                                                                             
Governor's appointments to the commission, this amendment                                                                       
would provide for the appointment of two members of the                                                                         
public selected from a list of nominees submitted by labor                                                                      
organizations that represent state employees. Senator Dave                                                                      
Donley objected. Senator Al Adams believed it was important                                                                     
for union members were associated with this effort. The                                                                         
motion failed by a vote of 2-4-3. Senator Gary Wilken and                                                                       
Senator Al Adams cast yea votes.  Senator Pete Kelly,                                                                           
Senator Lyda Green and Senator Randy Phillips were absent.                                                                      
                                                                                                                                
Senator Dave Donley moved to rescind action taken on                                                                            
Amendment #1A. Senator Al Adams objected. Senator Dave                                                                          
Donley spoke to motion saying he felt the Governor and                                                                          
subsequently, labor unions, should be involved in this                                                                          
process and were essential for the effort to be successful.                                                                     
He didn't think there was a constitutional problem with                                                                         
separation of powers. Senator Al Adams restated the legal                                                                       
debate regarding separation of powers. He felt this would                                                                       
set bad precedent. Agency personnel would participate in                                                                        
the process and offer their resources, he argued. The                                                                           
motion to rescind action on Amendment #1A passed by a vote                                                                      
of 5-2-2. Senator Al Adams and Senator Gary Wilken cast the                                                                     
nay votes. Senator Pete Kelly and Senator Randy Phillips                                                                        
were absent.                                                                                                                    
                                                                                                                                
Senator Dave Donley commented that this was a good way to                                                                       
get statewide representation of both labor organization and                                                                     
the Governor on the commission.  They were necessary for                                                                        
the success of the commission. He noted that because this                                                                       
would be an advisory commission, it was exempt from the                                                                         
separation of powers restrictions. He asked the sponsor if                                                                      
this would be similar to the membership system in the bill                                                                      
from the prior year. Mark Hodgins affirmed. Senator Dave                                                                        
Donley noted that version passed both the Senate and the                                                                        
House of Representatives and was then vetoed. Mark Hodgins                                                                      
made the correction that SB 68 was from several years ago                                                                       
and vetoed by governor. The privatization bill brought                                                                          
forward last year did not pass from the House of                                                                                
Representatives.  Senator Dave Donley asked if the prior                                                                        
bills had a similar membership system. Mark Hodgins said                                                                        
they did. One of the three reasons given by the Governor                                                                        
for vetoing SB 68 was the separation of powers issue.                                                                           
Under this context, separation of powers was not a problem                                                                      
according to Legal Services' Tam Cook's legal opinion.                                                                          
                                                                                                                                
Senator Al Adams requested a representative of the                                                                              
Department of Law to speak on the separation of powers                                                                          
matter. MARJORIE VANDOR, Assistant Attorney General,                                                                            
Governmental Affairs Section, Civil Division, Department of                                                                     
Law, said the department had looked at Tam Cook's analysis                                                                      
and didn't debate her method of analyzing the Uniform                                                                           
Rules.  However, the different branches of government had                                                                       
different views on the separation of powers when it came to                                                                     
advisory committees.  Whether a committee was advisory                                                                          
would not change the underlying analysis according to the                                                                       
Department of Law. The Administration did not oppose this                                                                       
task force or its goals Marjorie Vandor stressed.  The                                                                          
problem was that it was a bill and had the force of law and                                                                     
mandated the Governor to appoint, and who to appoint, which                                                                     
raised separation of powers concerns. The Governor might                                                                        
chose to comply and appoint members to the commission, she                                                                      
said.  However, historically this would be considered a                                                                         
separation of powers problem and would be an infringement                                                                       
on his normal, and strong, appointment powers. It was                                                                           
important for the historical record for future Governors                                                                        
that it not be consider a waiver of appointment on future                                                                       
task forces, she stated.                                                                                                        
                                                                                                                                
Senator Sean Parnell wanted to know if, when the bill that                                                                      
established the long range financial planning commission                                                                        
passed, was there a requirement of who the governor would                                                                       
appoint.  Marjorie Vandor was not familiar with that bill,                                                                      
but offered to check.                                                                                                           
                                                                                                                                
Co-Chair John Torgerson clarified that the Department of                                                                        
Law's main difference of opinion with the Legal Services                                                                        
Division was that if the commission was under Uniform Rules                                                                     
there would not be the separation of powers issue. But                                                                          
because it would be in statute the issue was a problem.                                                                         
Marjorie Vandor responded that it was a constitutional                                                                          
issue. She felt that Tam Cook's opinion seemed to be more                                                                       
geared toward the Uniform Rules but did not address the                                                                         
constitutional issue, which the department believed was the                                                                     
major underlying problem.  "Any time you mix committees,                                                                        
its going to be raised", she surmised.                                                                                          
                                                                                                                                
Co-Chair John Torgerson didn't understand the                                                                                   
Administration's objection.  Was it because the Legislature                                                                     
would direct the Governor to appoint a union representative                                                                     
or was it because the Legislature was directing him to                                                                          
appoint anybody, he asked. Marjorie Vandor said it was a                                                                        
combination of both. She suggested that the reason the                                                                          
commission was being created in the form of a bill was that                                                                     
the Legislature was afraid the Governor would not appoint a                                                                     
member. "We're not saying that the Governor may not want to                                                                     
do it, that he doesn't believe this committee has a good                                                                        
purpose," she said.  She was concerned with the historical                                                                      
precedence.                                                                                                                     
                                                                                                                                
Co-Chair John Torgerson surmised that the Governor would                                                                        
look awful silly vetoing this under those grounds.                                                                              
                                                                                                                                
Senator Gary Wilken said his support of Amendment #1A was                                                                       
more practical than legal.  He wanted to see this effort to                                                                     
go through and to have a commission on privatization.  Past                                                                     
problems had been with the Governor's Office so it seemed                                                                       
to him that removing the Governor from the equation would                                                                       
remove the roadblock. This was focusing efforts on the                                                                          
wrong thing, he stressed. If the Governor appointments were                                                                     
removed, the Legislature could be relatively sure the bill                                                                      
would become law and the process could begin.                                                                                   
                                                                                                                                
Senator Dave Donley commented that one thing he liked about                                                                     
the language was that the Governor, sitting statewide,                                                                          
picked someone from organized labor to sit on the task                                                                          
force.  He thought that was an important element in the                                                                         
process.  If the Governor was removed, he suggested                                                                             
allowing the labor organization to appoint their own                                                                            
representative the same as with the Alaska State Chamber of                                                                     
Commerce member. That would solve part of his concern.  He                                                                      
felt there needed to be some participation from the                                                                             
Executive Branch.                                                                                                               
                                                                                                                                
Senator Gary Wilken agreed with Senator Dave Donley and                                                                         
thought there should be a representative from organized                                                                         
labor on the task force.  However that was a different                                                                          
issue than involvement from the governor's office.  Senator                                                                     
Dave Donley said the reason he brought it up was because                                                                        
the amendment would remove the provision to provide for the                                                                     
labor representation.  Senator Gary Wilken pointed out                                                                          
another amendment before the committee that would add two                                                                       
members of organized labor and said that could be taken up                                                                      
with the Governor's Office.                                                                                                     
                                                                                                                                
Co-Chair John Torgerson liked the original language of the                                                                      
bill but agreed with Senator Dave Donley's concerns.  His                                                                       
intent was that the Governor be a part of the task force.                                                                       
He didn't think the governor would veto this bill simply on                                                                     
the premise that he was to appoint a labor union                                                                                
representative.                                                                                                                 
                                                                                                                                
Co-Chair John Torgerson noted he just received a copy of                                                                        
the creation long range planning commission in which the                                                                        
Governor did not veto and stipulated "two members of the                                                                        
Executive Branch appointed by the Governor." Co-Chair John                                                                      
Torgerson pointed out the inconsistency.  He hoped the                                                                          
Administration would work with the Legislature in forming                                                                       
this task force.                                                                                                                
                                                                                                                                
Senator Loren Leman believed the long range planning                                                                            
commission was formed under a different Governor and                                                                            
suggested that the committee might not want to rely on that                                                                     
application.                                                                                                                    
                                                                                                                                
Senator Lyda Green asked if the bill passed without                                                                             
Amendment #1A and if the Governor refused to appoint                                                                            
members, if the Legislature could appoint members.  Co-                                                                         
Chair John Torgerson answered that failure to appoint                                                                           
wouldn't defunct the committee.                                                                                                 
                                                                                                                                
Amendment #1A failed by a vote of 3-5-1. Senator Al Adams,                                                                      
Senator Gary Wilken and Senator Loren Leman cast yea votes.                                                                     
Senator Randy Phillips was absent.                                                                                              
                                                                                                                                
Senator Loren Leman moved for adoption of Amendment #3.                                                                         
Senator Al Adams objected for question. Senator Loren Leman                                                                     
explained the amendment, which was in two parts.  The first                                                                     
change would insert language to empower the commission to                                                                       
make government work smarter.  The second change would                                                                          
empower the commission to appoint an advisory council to                                                                        
give a broader base of opinions and information.                                                                                
                                                                                                                                
Senator Loren Leman moved to amend Amendment #3 to delete                                                                       
the language, "composed of representatives from the private                                                                     
sector of the state economy" (page 1 lines 17 and 18 of the                                                                     
amendment.) He fully expected all members of this advisory                                                                      
committee would be representatives of the private sector                                                                        
but didn't want to limit the commission's ability to                                                                            
appoint others. His intention was that members of the                                                                           
advisory council would donate their time and cover expenses                                                                     
incurred in their duties on this council and provide                                                                            
specialized expertise. The motion to amend Amendment #3                                                                         
passed without objection.                                                                                                       
                                                                                                                                
Senator Loren Leman explained that this would be an                                                                             
advisory council to the commission and would serve at the                                                                       
commission's request in functions such as subcommittee                                                                          
membership.  Senator Gary Wilken asked why the commission                                                                       
itself wouldn't do those things.  Senator Loren Leman                                                                           
answered saying nine members would not be enough in his                                                                         
opinion.  He wanted the commission to have a broader reach                                                                      
and to hear further from the communities and pull together                                                                      
those with expertise.  Those people would not be                                                                                
compensated.  Senator Gary Wilken asked if the commission                                                                       
itself, if they saw a need, could form its own council.                                                                         
Senator Loren Leman said that was what this amendment would                                                                     
accomplish. Senator Gary Wilken hated to see the bill fail                                                                      
from its own weight so he would vote against the amendment.                                                                     
                                                                                                                                
Co-Chair John Torgerson asked Senator Gary Wilken if he had                                                                     
a problem with the provisions in the rest of the amendment.                                                                     
Senator Gary Wilken did not.                                                                                                    
                                                                                                                                
Senator Pete Kelly noted Senator Loren Leman's suggestion                                                                       
that the commission could appoint an advisory council.                                                                          
However, the language stated "shall".  Therefore, it would                                                                      
be a necessary part of the commission. Senator Loren Leman                                                                      
responded that was correct, but it did not dictate how the                                                                      
council would operate and left those decisions up to the                                                                        
commission.  He fully expected the commission would want to                                                                     
seek others to help with their work.                                                                                            
                                                                                                                                
Amendment #3 as amended, failed by a vote of 4-4-1. Senator                                                                     
Dave Donley, Senator Loren Leman, Senator Sean Parnell and                                                                      
Senator John Torgerson cast yea votes.  Senator Randy                                                                           
Phillips was absent.                                                                                                            
                                                                                                                                
Co-Chair John Torgerson said he was having another                                                                              
amendment drafted that would return the word                                                                                    
"privatization" at the request of the sponsor.  Senator                                                                         
Gary Wilken asked that another amendment be drafted to                                                                          
include the consolidation and efficiency language from                                                                          
Amendment #3.                                                                                                                   
                                                                                                                                
Senator Al Adams requested another day to look at both                                                                          
amendments in writing.                                                                                                          
                                                                                                                                
Co-Chair John Torgerson ordered the bill held in committee.                                                                     

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