Legislature(1993 - 1994)
03/28/1994 01:37 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JUD - 3/28/94 SENATOR TAYLOR brought CSHB 254(JUD) am(ct rule fld) (OPEN MEETING G ACT) before the committee as the final order of business. SENATOR LITTLE said at the last meeting on the bill, some of the members had concern with community councils. As a result, a new committee substitute was drafted and on page 5, lines 18 through 23, an exception for community councils has been included. Number 125 SENATOR TAYLOR said his only concern is that at what point in time is a determination made that the group has gathered for the purpose of adopting a recommendation. His concern is the notification requirements and when does this trigger. SENATOR LITTLE responded that all community councils are currently advertising there meetings. She said this language was added so that members of the community council could get together for a block party without violating the Open Meetings Act, and all of the other times when they would be making decisions for the community council, they would need to meet under the Open Meetings Act. She added that these councils only make recommendations, and when dealing with a body that only recommends, there is little impact to the main body who accepts that recommendation. She didn't see that any great harm could be developed from a suit against an advisory group. SENATOR TAYLOR responded that it would be against the assembly for having taking the recommendation and acting upon it. Number 190 TAM COOK, Director, Division of Legal Services, Legislative Affairs Agency, observed that she was sure that the action of an assembly would be voided, assuming that the assembly action was properly noticed, etc. She thought it would be quite a stretch for the court to be willing to go that far. She also observed that when dealing with a large group of people who are participating in a council meeting, it will incumbent upon whoever is chairing that meeting to remind the member with the idea about a recommendation that they want to bring forward of the requirement of the Open Meetings Act, and that if the council has not complied with it, they'll need to schedule another meeting before they take action on that recommendation. Ms. Cook said that, essentially, this approach gives some leeway to public councils in that there is a number of members test or any other definition of what constitutes a gathering. The test is are they attempting to take action. Number 231 SENATOR DONLEY said there was discussion at the last meeting on advisory groups and breaking out the requirements for them, but not necessarily holding them to the same standards of not talking to each other, and he asked it that was covered in the committee substitute. SENATOR LITTLE responded that they would be covered under the new definition of a meeting. MS. COOK agreed that the advisory groups would be covered, and they would be held to same level of the test of what is a meeting, except for the narrow exception in the committee substitute that applies to community council situations. The test for a community council is that it is must be a group with an indefinite membership. She suggested if the committee so desired, it could take the same approach with all advisory groups, not just community councils. Number 283 SENATOR TAYLOR spoke to his concerns on applying the Open Meetings Act to the subcommittee level when all that is really wanted is that public meetings, where there is going to be some action taken, be held in public. He cautioned that with the way the legislation was going, it may be doing more damage than good. SENATOR LITTLE commented that she believes that the existing law has already broken down, and she strongly feels that there needs to be something put in place to take its place. Number 350 SENATOR HALFORD asked how the members would feel about an amendment to exempt the Open Meetings Act from the general severability of Alaska Statutes. He said that means it either works or it doesn't, and it can't be picked apart by court action. If a court is going to decide that the Open Meetings Act is wrong in any way, it is all or nothing. He is concerned that the Legislature is tinkering in response to the court's tinkering, yet the Legislature has no idea of what the court's interpretation of the final product is going to be. SENATOR TAYLOR stated he didn't think he would have a great deal of objection to that approach, but he was not certain it could done. SENATOR DONLEY thought the community council was alright, but he does not want to go that far with advisory committees. His problem is with getting to the point where non officials are not allowed to talk about something among themselves in their community. Number 400 SENATOR HALFORD said he thought the two categories are: what kind of notice do you provide; and what kind of restrictions on communication do you have. The notice provisions on meetings should apply to virtually everybody and any thing that has got to do with government. The restrictions on communication should not apply to people that don't stand for election, don't get any compensation, and don't have significant power. In response to Senator Halford, TAM COOK suggested keeping the two tiers for the definition of "meeting" as contained in the committee substitute, but apply the first tier only to groups that are not advisory in nature; keep the second test for citizen groups whereby they have to notice their meeting only if they take action; and set up a third tier for advisory groups that is somewhat in the middle that requires them to notice a meeting at any time that they take action, but also pick up the notion of a prearranged meeting as being separate from a casual encounter, so that the notice requirement for all their meetings applies to prearranged meetings and gatherings at which action is taken. She said if the committee wants to make these kind of fine distinctions, she was sure she could draft it. Number 465 After further discussion, SENATOR LITTLE moved a conceptual amendment to create a three-tierd system as proposed by Tam Cook. SENATOR TAYLOR objected for discussion purposes, stating he would rather have less tiers than more tiers. He suggested taking out the recommendation language (beginning on line 9, after the second "or") altogether. SENATOR HALFORD agreed that it was simpler to take out the advisory questions, and if that can't be done, then go to a tier concept. TAME COOK said if the desire is to remove from application of the Open Meetings Act all advisory groups, including subcommittees, she thought it would be necessary in the definition to affirmatively say so. But she cautioned that by leaving the language "with authority to establish policies or make decisions" and being silent about how that is to be applied to an advisory group, then the court will decide that as to an advisory group, their decision is the advice they are going to make and they may inadvertently scoop these groups back into the statute. The result is that it confines the application of the open meetings statute only to groups that have the ability to make some sort of binding decision in government. It removes from application of the open meetings statute a great many groups that are undoubtedly now included, she stated. Number 540 SENATOR TAYLOR called for a roll call vote on Senator Little's conceptual amendment. Senators Little and Donley voted "Yea" and Senators Taylor, Halford and Jacko voted "Nay." The conceptual amendment failed. Number 550 SENATOR TAYLOR moved that on page 5, beginning on line 9, after the word "entity" delete the language "or to make recommendations directly to a mayor or manager of a municipality, a superintendent of a school district, or another governmental body authorized to take action on the matter that is the subject of the recommendations;". On line 12 following "governmental body" rewrite the rest of the sentence so that it specifically deletes subcommittees or those who would make recommendations. He further moved to delete the language on page 5, beginning on line 18 after the word "collectively" down through line 23 ending with the word "entity." SENATOR LITTLE objected. The roll was taken with the following result: Senators Taylor, Halford, Jacko voted "Yea" and Senators Donley and Little voted "Nay." The Chairman stated the amendment was adopted. Number 575 SENATOR TAYLOR noted a former legislator had forwarded recommendations to the committee concerning the application of the law to the Legislature. In his recommendations he suggests that the word "formal" before the word "gathering" under the definition of "meeting," the concept being that there needs to be some triggering mechanism where it moves from the discussion phase to the decisional phase. However, Senator Taylor thought some other word was needed. TAPE 94-26, SIDE A Number 012 SENATOR LITTLE stated she would prefer that language such as a formal gathering not be added, because she doesn't think it accomplishes anything. She said she didn't understand the concern that someone is trying to address by adding it. Number 030 SENATOR DONLEY asked how this would work with caucuses. SENATOR LITTLE responded that the Ethics Committee has been charged with applying the Open Meetings Act to the Legislature, so it would be up to that committee as to how this law is applied to the legislative branch. SENATOR TAYLOR said by turning this whole process lose with a group of people that have never been the majority with a group of people who have never served in the Legislature or understand how it works, he didn't think it would end up with anything that would be workable. Further, he thinks most of the assemblies and councils are having a very difficult time trying to comply right now with the Act, and providing that three members can at least talk with one another gives them a little bit of relief. But when dealing with 60 members of the Legislature, these numbers don't work anymore. SENATOR LITTLE responded that is why it makes sense to work hard with the Ethics Committee in coming up with something that will serve everyone well. Number 060 SENATOR TAYLOR stated he didn't feel it was appropriate to move the bill from committee until such time as the committee has given some rather strong direction to the Ethics Committee on how it believes it should apply. Number 070 JOHN MCKAY, testifying from Anchorage, reminded the committee that the statute that gives the Ethics Committee the opportunity to set some standards for the Legislature specifically creates a couple of things that look at the special nature of the Legislature. It provides that whatever guidelines that they come up with have to allow closed caucuses and private informal meetings or conversations between legislators when a political strategy is discussed. Mr. McKay said that all of the people who have been involved in this process, from the municipal league people, the school board people, the press organizations, to the League of Voters have all said that the legislation in front of the committee works to balance the interests of the municipal officials, public officials and the public. Number 120 SENATOR TAYLOR thanked Mr. McKay for his comments. He stated the bill was not ready to be moved out of committee and he hoped it would be in the near future.
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