Legislature(2001 - 2002)
06/26/2002 09:24 AM 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
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee
meeting to order at 9:24 a.m.
SB 3001-REGULATORY COM. OF ALASKA: SUNSET & MISC
HB 3001-REGULATORY COM. OF ALASKA: SUNSET & MISC
[THE FOLLOWING IS A VERBATUM TRANSCRIPT]
CHAIRMAN TAYLOR: ...Donley and Chair Taylor. And the secretary
has copies of the bill back there for distribution. The matter
before us is House Bill number 3001 Judiciary. There is a
committee substitute. Chair to entertain a motion to adopt the
committee substitute for purposes of discussion. Senator
Cowdery.
SENATOR JOHN COWDERY: I make a motion that we adopt the committee
substitute, Committee Substitute for House Bill 3001 Judiciary
for discussion purposes.
CHAIRMAN TAYLOR: Is there objection? There being no objection,
it is so adopted. Let me walk you through first the provisions.
First off, we have a, we have created a Telecommunications
Commission of Alaska, that's a three-member panel that will,
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effective January 1 take over the regulation of
telecommunications in Alaska. That will leave the Regulatory
Commission, as they have been facing a 20 percent/80 percent
balance on telecommunications work versus electrical work, this
will leave them with the remainder of the 20 percent, which will
be all of water and sewer, refuse to the extent they regulate it,
and the electrical matters, most of which have been some of their
biggest cases and some of the cases that have been languishing
for the longest period of time.
SENATOR DAVE DONLEY: Mr. Chairman?
CHAIRMAN TAYLOR: Yes?
SENATOR DONLEY: Would the, where would cable television fall?
CHAIRMAN TAYLOR: Unfortunately, we have not yet drafted anything
on cable television.
SENATOR DONLEY: But...
CHAIRMAN TAYLOR: We didn't have time last night. We can, if
anyone is interested, have an amendment prepared for that effect.
SENATOR DONLEY: Well, if the committee's going to propose to
create a separate thing, it needs to be one or the other. And I
would suggest that it's closer to telecommunications than garbage
and...
CHAIRMAN TAYLOR: Oh, no, tele...
SENATOR DONLEY: Sewer and water.
CHAIRMAN TAYLOR: Cable would be included within.
SENATOR DONLEY: The telecommunications...
CHAIRMAN TAYLOR: The Telecommunications Commission.
SENATOR DONLEY: Okay, good.
CHAIRMAN TAYLOR: But we haven't prepared any specific amendment
changing in any way the cable television industry.
SENATOR DONLEY: No, I'm just wondering who has jurisdiction on
it.
CHAIRMAN TAYLOR: Is that correct, Barbara?
MS. BARBARA CRAVER: I think so. I mean telecommunications is
pretty broadly defined [indisc.] I think it involves cable.
CHAIRMAN TAYLOR: Okay. I'd just note for the record that's
Barbara Craver, who's with, who's a drafter.
SENATOR COWDERY: And the date of the...
CHAIRMAN TAYLOR: The transition would occur January 1, 2003. The
next major provision you come to is the Regulatory Commission
itself and that it shall annually, that's on Section 8, page 3,
it shall annually elect for the following fiscal year, and that
election shall occur within the membership, raising one of their
members to the title of chair. The chair would serve one-year
terms and could serve up to three successive terms. After a
year, then they would have to step down as chair, and after a
year of not serving as the chair, the commissioner would be
eligible for election as chair again. This was to provide an
alternative for the question of, 'should the chair be rotated?'
as three of the Commissioners have suggested just prior to our
hearings. The next provision goes into extensive discussion of
ex parte communication, impartial decision making. These are
standards that are applicable in other sections of the law to
hearing officers and judges in Alaska. And that's basically what
these people are when they sit in the quasi-judicial aspect of
their jobs.
SENATOR JOHNNY ELLIS: Mr. Chairman, that's section 9 through...
CHAIRMAN TAYLOR: 11. I think that's right, John, I may have
spoken too quickly. Yes.
SENATOR ELLIS: Could you just cite the sections as you go through
the issues?
CHAIRMAN TAYLOR: Yeah, I'm sorry, I should have. That next
section 12 basically defines who has control over
telecommunications and who has control over the other public
utilities. Section 13, timelines for issuance of final orders,
is basically the same provision as was provided for in the House.
There is one difference and that is the provision providing for a
good cause delay has been eliminated. So, in essence, unless
the, let me see if I can find it, unless the parties themselves
have consented, both parties, I'm assuming only two, but unless
all parties have consented to the extension, the extension is
granted as of that date. This puts some teeth into that
provision. And actually with the division of work contemplated
by creating the new commission to take care of
telecommunications, there is, there should be more than adequate
both staffing and time because they would then be handling 20
percent of the workload. 80 percent, according to the testimony,
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would move off to the new commissioners as of the 1 of January.
This next provision was, I believe, part of the House bill and
I'm not certain what it actually does, but it's the contents and
service of orders. It talks about every formal order of the
commission should be based on facts of record, then it says,
however, the commission may issue orders approving any settlement
supported by all the parties of record in a proceeding, including
a compromise. I'm assuming that's some clean up language that
was needed within the House Bill by the Commission for the types
of orders they found themselves necessary to issue. Do you have
further comment on that, Barbara?
MS. CRAVER: That's section 14. That's been in there since the
second session...
CHAIRMAN TAYLOR: You need to come over and sit down there. Yeah.
MS. CRAVER: This is Barbara Craver, I'm with Leg Legal. Let's
see, Section 14 of version L has been with the bill, it was
requested I think during the second session and maybe even during
the original session because there was no authority for the
Commission to approve settlement, settlements between the parties
as an order.
CHAIRMAN TAYLOR: And that was in the House Bill?
MS. CRAVER: Yes.
CHAIRMAN TAYLOR: The next one, section 15 is again, 15, 16, 17
and 18, let's see...
SENATOR GENE THERRIAULT: They all just conform.
CHAIRMAN TAYLOR: Those are just conforming and putting the word
'telecommunication' in there, creating the new commission for
that purpose. And so is 19 also. The Telecommunications
Commission is created in Section 20, the definition of the duties
of the three commissioners. And, by the way, the standards for
qualification are the same as the standards for qualifications
for APUC, excuse me, RCA right now. And the standards for
removal by cause, which is the Governor that only can do that,
for cause. They're confirmed by the Legislature. They serve for
five-year terms. They are a range 26 up to a range, with the
chair at a range 27. All this is same as the RCA is right now.
SENATOR THERRIAULT: So that's identical, you've just...
CHAIRMAN TAYLOR: Yeah.
SENATOR THERRIAULT: Sort of pulled those sections of statutes,
changed the...
CHAIRMAN TAYLOR: Changed the name, that's all, Gene, yeah. They
have an office, a seal, a legal counsel. They're allowed to
employ, of course, personnel to assist them. And then there's
the restriction on the members that they cannot hold stock in a
utility that they would regulate and other qualifications. I
thought that one had a section number, but I guess it doesn't.
MS. CRAVER: It's...
CHAIRMAN TAYLOR: Section 42 includes both the restrictions on
members and the powers and duties of the commission chair. And
those are also the same, aren't they Barbara?
MS. CRAVER: Yes.
CHAIRMAN TAYLOR: As what the RCA is today? Okay.
MS. CRAVER: This is identical to the Regulatory Commission.
CHAIRMAN TAYLOR: And these decision making procedures and
impartial decision-making, is that the same, too?
MS. CRAVER: Oh, no, that's a new section.
CHAIRMAN TAYLOR: That's what I thought.
MS. CRAVER: 42.08.090, which is on page 13, is a new section that
also appears in, appears as an amendment to the Regulatory
Commission in the first part of this bill. Yes.
CHAIRMAN TAYLOR: And that provides for the higher standard of, we
were talking about only commissioners, too.
MS. CRAVER: This is an ex parte, ex parte model that's based on
the judicial model.
CHAIRMAN TAYLOR: When...
MS. CRAVER: To prohibit ex parte communications.
CHAIRMAN TAYLOR: When the members, refreshing your recollection,
you actually prepared a memorandum to the Committee on that
subject.
MS. CRAVER: Uh-hmm.
CHAIRMAN TAYLOR: Before we even started with these hearings and
you provided three different options and this is the higher of
the three options. Is that right?
MS. CRAVER: I think the judicial standard is taken from the
canons and it's the most elaborate as to what an ex parte contact
is and in what situations an ex parte contact might be allowed,
mostly for procedural matters and communications with staff.
CHAIRMAN TAYLOR: And we also have a public advocacy section
within this Commission, just as we do within the RCA. And then
when you get to, Section 21 is probably, though it's one of the
smallest, it's probably one of the meatiest around here because
what it does, it provides for the extension of this Commission
for one full year plus it's wind-down year, which actually gives
it a two-year extension. 22 is just a nominal change again to
include, yes, go ahead Senator Cowdery, the Telecommunications
Act.
SENATOR COWDERY: I don't know if we've got it in here, but there
was some question on the word 'wind-down,' I mean, in the, what's
the...
CHAIRMAN TAYLOR: Terminate?
SENATOR COWDERY: Termination, is that...
CHAIRMAN TAYLOR: I haven't attempted to take that definitional
thing on.
SENATOR COWDERY: Because you know that gives some confusion when
it says that it's terminated but then it gives a one year.
CHAIRMAN TAYLOR: We actually had a section drawn up, Senator
Cowdery. In fact we've got a couple of different alternatives
there. I chose to go with the simpler one because it's basically
what the House did. And if these other provisions are adopted, I
certainly feel that we can extend and move on from here. We're
going to have a panel that's coming up here too towards the end.
SENATOR COWDERY: Okay.
CHAIRMAN TAYLOR: But I didn't get into that definitional stuff,
although I do have a section drawn up if the Committee is
interested that would provide for definition of what activities
take place within a sunset year so that there's no question about
worrying about interpreting an attorney general's opinion or
having someone just speculate what they might or might not be
able to do. It would specifically tell them.
SENATOR DONLEY: I agree with Senator Cowdery. I think the word
'terminate' as it appears now is really misleading. I don't even
think it's good English. I mean, 'terminate' means the end. And
that's not what happens.
CHAIRMAN TAYLOR: Right.
SENATOR DONLEY: I think...
SENATOR THERRIAULT: But when you mean to shut something down, you
terminate it and it goes into its wind-down year. Now it might
not fit perfectly with this function because we have to have a
regulatory commission of some kind.
SENATOR DONLEY: Right.
SENATOR THERRIAULT: You have to have that oversight. But if the
language applies to other sections of the statute, which at any
time the Legislature could say, 'You're not needed any more,
we're going to give, you're therefore terminated, wrap up your
business.' I mean, it does fit. So...
SENATOR COWDERY: Well...
SENATOR DONLEY: I...
SENATOR COWDERY: Well, it seems to me, you know, having been in
the business world, when I terminated an employee, that was
terminated.
CHAIRMAN TAYLOR: Didn't have a wind-down year?
SENATOR COWDERY: No, I paid them until the end of the week, and
that was it, you know, or the job was completed or whatever, it
was terminated. And I think there's confusion. I think we
should clarify that.
CHAIRMAN TAYLOR: I just wanted to highlight for you as I went
through it quickly the sections and this is the section, number
22, excuse me, number 21, where we would probably want to put in
that definition if we wished to make that definitional change.
And I, as I said, I do have a paragraph already drafted that Barb
has available that talks about what happens during a wind-down
year. I didn't try to take on the issue of what the word
'terminate' meant or whether or not it should remain there. We
removed it in the paragraph and just said you would have a full
year of authority and be authorized to continue to work. But...
SENATOR DONLEY: I think it's a pretty simple matter. If people
are concerned that it may be appropriate in other areas, which I
don't, I'm leaning towards thinking it's not in anywhere because
it's just not, when you terminate something, it's supposed to
end. But to do a 'notwithstanding' provision for at least this
type of regulatory function, which seems to be an essential
function, we could, you know, have a special terminology that
applies when it's the RCA or whatever commission is regulating
these functions and then deal with the broad picture in some
other piece of legislation.
CHAIRMAN TAYLOR: Okay, I just wanted you to note that so that
when we go back through it and we want, anybody has an amendment
prepared, submit one even procedural, or I mean even conceptual.
That's why Barbara's here to assist us. Section 23, again, just
changes the title from 'Regulatory' to 'Telecommunications.' So
does section 24, 25, 26, 27. Section 28 brings in a little
different concept, but it's a concept that I think is very
germane to this subject and needs to be addressed. In essence,
that's Senate Bill 280 that failed passage in the regular session
and it does provide much needed assistance to water and sewer
projects through grants. And, by the way, we do need to have an
amendment on section 28 because the word 'company' was inserted
and we need to have the words 'public utility' put in the place
of 'company' each place that it appears within section 28 and 29.
SENTOR THERRIAULT: I've got a couple of questions.
CHAIRMAN TAYLOR: Yes.
SENATOR THERRIAULT: Barbara, when, I'm sure this has been a long
process. When were you instructed to include this language in
the bill? Yesterday or the day before?
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MS. CRAVER: The 29.
SENATOR THERRIAULT: When did you start drafting this section into
the bill?
CHAIRMAN TAYLOR: I think I gave her instructions Mr. Therriault,
Senator Therriault, yesterday on everything at about, what time,
Barb, 9:00 in the morning?
MS. CRAVER: Yeah.
CHAIRMAN TAYLOR: 9:30, something like that.
SENATOR THERRIAULT: We had a lengthy discussion yesterday, Mr.
Chairman, about the contents of the bill. Since this was my bill
during the session, why didn't you tell me that you were
incorporating it in the bill?
CHAIRMAN TAYLOR: I wanted to add that and some other, because at
one point the Committee had actually discussed deregulating all
water and sewer utilities. And, in fact, first draft last night,
Barbara had worked a long time trying to figure out how to do
that. And when we came back with that at about 3:00 a.m. or so,
we also had this within it because as we were going to deregulate
I wanted to make certain that those provisions that had been
lost, because I had supported you also on that concept, were
still available for those communities. And that's the main
reason I did it. We actually had about seven or eight other
alternatives too that I haven't gone through because I just kind
of decided they're too complex and there really wasn't a
consensus within the committee.
SENATOR THERRIAULT: Well I guess the dereg...
CHAIRMAN TAYLOR: I didn't mean to offend you in the process.
SENATOR THERRIAULT: More complete deregulation, too, is a
substantive matter and...
CHAIRMAN TAYLOR: That's why I didn't do it.
SENATOR THERRIAULT: That never came up in conversation yesterday
either.
CHAIRMAN TAYLOR: No, but that had come up. Senator Cowdery had
raised it. It had been raised by a couple of different people
testifying. So I wanted to have as many alternatives available
as we could. And basically those things have been drafted. It's
just I thought it was too big a bite to be taking and expect this
committee to deregulate all water and sewer in the state. Your
auditors had suggested to us that we make a policy call on that
one way or the other and that's why I felt it was certainly
germane and something we should take up. But I did not include
it in this draft. It is available if you want to take that up.
Another issue that was raised was the deregulation of cooperative
electric associations. And Chugach had specifically asked for
that so I had provisions drafted for that also. Part of the
complexity there was that many witnesses had stated that if in
fact something like that were contemplated, that we really needed
to maintain a level of regulation on Chugach's wholesale
transactions with other utilities but that maybe maintaining a
strict regulatory approach over a cooperative really didn't have
much, much impact. So we also drafted a provision on that. But
since I didn't feel we had a great deal of consensus yet on that,
that wasn't an issue that I was going to, going to push. We did
have it drafted, though, last night, and I'm prepared to provide
the Committee with that work and move forward with it if people
want. As I said, I tried to take every option that was provided
in testimony and consolidate it and then put it into some form.
And then I tried as best I could to come up with something that
would work. The last section, let me, first on that repealer,
can you explain that one Barb?
MS. CRAVER: Yes.
CHAIRMAN TAYLOR: Because there was, it's a little glitch in
there.
MS. CRAVER: Well, 42.04.100 created a telecommunications or
communication carriers section within the Regulatory Commission.
And since that seems to be very applicable to telecommunications,
we've taken it out of 04 and put it into 08. So now that exact
same section about communication carriers section is found in
45.08 under the auspices of the Telecommunications Commission.
SENATOR THERRIAULT: Could you go over that again?
MS. CRAVER: Yes, okay. Okay, 42.04.100.
CHAIRMAN TAYLOR: Which we would repeal.
MS. CRAVER: You can see what it looks like, let's see, if we can
find where it got, got moved to. Let's see. If you'll look on
page 14, on line 10, we have communications carrier section.
This had formerly been 42.04.100, because this was part of the
Regulatory Commission's, under their jurisdiction. So since it's
a communication carrier system that will 'administer policies and
programs with respect to the regulation of rates, services,
accounting, and facilities of communications common carriers
within the state involving the use of wire, cable, radio, and
space satellites,' it seemed more appropriate to put this under
the telecommunications section and just take it completely out of
the Regulatory Commission. So 42.04.100 is being repealed and
it's actually been just moved and renamed, renumbered and put
under the Telecommunications Commission in 42.08.100.
CHAIRMAN TAYLOR: The next section, number 31, provides exactly
the same language that the House had in their timelines.
Remember we, we, I can't remember for sure, I think it was Eric
Yould yesterday was telling us that it wasn't everything that
they wanted. They wanted some tighter definitions on the 400
cases that are somewhat stale. And I believe he suggested he had
some language but didn't provide it to the Committee yesterday.
In the first draft, I had left out that second sentence where it
says, 'For dockets commended before July 1, 2002, the date of
July 1, 2002, shall be used as the date of filing' for timeline
purposes. Basically what that second sentence does is it brings
all of those old stale cases up and gives them a new starting
line, which is the same starting line as any new case that's
filed. So everybody kind of starts off together in that concept.
I'm not sure what ARECA had for additional language that they
wanted but the first draft we'd left that out and that was in the
hopes that we would come up with some language. And believe me,
I cannot, I don't have the sophistication to do that. If anyone
else has a recommendation, I'd be happy to entertain it. And
since I couldn't, I couldn't seem to figure out how you would age
those cases and define which one would have priority over the
other in any kind of meaningful fashion just based on time of
filing, what I did there, was I just put the second sentence of
the House's provision back in so the House's provision is exactly
as we received it right now. But I just wanted to remind the
Committee of what the debate was on that, or I should say, the
testimony was on that should anybody want to work with somebody
to come up with an amendment on that. And the last one is the
task force that is to inquire into the Regulatory Commission.
And rather than go along with the allocation of individual
membership within that based upon which organization or
profession you belong to, we just deleted those and took it back
to the generic, where the members of the task force would be
appointed, three people by the President of the Senate, three
people by the Speaker of the House, one by the Governor - that
they would work for the next six months, that they would render
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their report to the next legislature on January 30, 2003, which
should coordinate with the study that's going on that
Administrative Director Duncan has now let. And the next
legislature should have both of those available. Hopefully this
task force would not interfere with RCA to the extent that we had
testimony yesterday, because 80 percent of RCA's work would now
be done by the other commission beginning January 1.
SENATOR DONLEY: Is it really 80 percent?
CHAIRMAN TAYLOR: That's what the testimony was, is, by the
electric people, is that 80 percent of the activity of the
Commission is taken up with telecommunications. It used to be,
remember, they said it used to be the other way around, that
electrical used to take more time in the Commission. And with, I
guess it's the advent of technology or deregulation or something,
I guess deregulation they said from the FCC.
SENATOR DONELY: Can I...
CHAIRMAN TAYLOR: Yeah.
SENATOR DONLEY: ...ask a question? Do the, the reforms such as
the election of the chair, the ex parte communication provisions;
do those apply to both the new entity that's being created and
the existing entity?
MS. CRAVER: Let's see, I know for sure that the ex parte things
do. I don't believe that we carried the election of the chair
into telecommunications.
CHAIRMAN TAYLOR: Telecommunications only has three members. I'm
not sure how they...
MS. CRAVER: There is a chair in the telecommunications section.
It's on page 12, line 17, which the exact, you know, it's a
mirror of what the RCA, powers of the, powers and duties of the
commission chair is.
SENATOR THERRIAULT: But how is that chair selected?
MS. CRAVER: Let's see.
SENATOR THERRIAULT: Currently RCA of course is appointed. They
offer...
MS. CRAVER: Yeah, let's see. Let's see, how was it done under
42.04.010? I can't answer that question, but I can look and see
if I can find the answer here.
CHAIRMAN TAYLOR: Senator Cowdery?
SENATOR COWDERY: Yeah, while she's looking for that, you know we
discussed a different review process, you know, by, into the
actions and the Commission. Is that included any - you know, we
talked about monthly, we talked about quarterly, yearly, that
type of thing. Is that, any of that in here? Do you remember?
CHAIRMAN TAYLOR: I didn't see anything.
SENATOR DONLEY: Oh, you don't mean review, you mean like an open
bar, I mean, discussion...
SENATOR COWDERY: Yeah, you know...
SENATOR DONLEY: That was in the House bill, that once a month
discussion thing?
SENATOR COWDERY: Yes.
CHAIRMAN TAYLOR: Yeah, the Commission was concerned, and others
were concerned that that was going to be kind of burdensome with
the workload that they had to meet every month with the panel so
I didn't put that in.
SENATOR COWDERY: Okay.
CHAIRMAN TAYLOR: I just assumed that if there's going to be a
task force that is going to look into their affairs, which both
the House and we have here. I'm certain they're going to have to
meet with and talk to them on occasion but to set up mandated
times at which they have to get together seemed to me awfully
arbitrary.
SENATOR DONLEY: Mr. Chairman, this is what I'm interested in
doing at this point is having a letter of intent that deals with
some of the more complex issues that specifically asks or defines
as the intent of the Legislature that this task force make a
specific recommendation back whether or not the use of this
'baseball' or 'last best interest' arbitration for setting the
UNE rates for tariffs is an appropriate way to set those, those
issues. And also that the, this task force would also make a
specific regulation regarding the request of this Committee for
the deregulation of co-ops and muni-owned utilities.
CHAIRMAN TAYLOR: And how that might occur?
SENATOR DONLEY: Yeah, and how that might occur. So that we have
this task force of hopefully a lot of expertise coming back and
making specific recommendations on those two very complex issues,
I think. So that the next legislature will have a better sense
from hopefully a group of, a panel of experts, on which way to go
on those issues because I, we, we heard a lot of testimony on
both those things. I think both those things need to be, have a
much more extensive public debate and amount of research and work
done on them than we're going to ever have in this forum. But I
would like to have some recommendations come back [indisc.] on
those issues.
CHAIRMAN TAYLOR: And that was both on water and sewer and
electric co-ops?
SENATOR DONLEY: Yeah.
CHAIRMAN TAYLOR: Okay. Okay, I'd sure appreciate that because
trying to wade your way through these statutes and trying to
figure out how to do that...
SENATOR DONLEY: So you could put it specifically in this, the
charge to the task force or we could do it by letter of intent
saying, 'task force, this is what we want you to come back and
give us some advice on.' Either way.
CHAIRMAN TAYLOR: Yeah, well, Barbara and myself and staff will be
happy to work with you on either one
SENATOR DONLEY: Maybe I... I guess it'd be better if it was
right in here.
CHAIRMAN TAYLOR: If it's right in there, I think...
SENATOR DONLEY: Yeah.
CHAIRMAN TAYLOR: ...it's clearer. Do you understand that, Barb?
MS. CRAVER: Actually, I wasn't listening. I was looking for the
other stuff. But I'm sure you can fill me in. Or you want to
reiterate it?
SENATOR DONLEY: We would like it clear that one other thing that
we're asking...
CHAIRMAN TAYLOR: Senator Donley, why don't you make that as a
motion to amend?
SENATOR DONLEY: I would move that the drafters come up with some
language that make it clear in the charge to the task force in
Section 32 that we want a specific, the Legislature would like a
specific recommendation on the, on the use of this 'baseball' or
last best interest, 'last best offer' arbitration for setting the
UNE rate or at least the variables, I guess, in that rate and
tariff issues and, and I guess I don't mean, you know, I, more
than just say whether they like that or not but make a specific
recommendation on how they think that should be handled.
CHAIRMAN TAYLOR: What type of arbitration.
SENATOR DONLEY: Yeah, if you're going to use arbitration, what
type of arbitration.
MS. CRAVER: Okay.
SENATOR DONLEY: And second, that also we'd like a specific
recommendation regarding the issue of deregulation of
cooperatives and city owned utilities.
MS. CRAVER: Okay, of electric cooperatives, you mean?
SENATOR DONLEY: And water and sewer.
MS. CRAVER: Okay, well, there's electric and telephone
cooperatives under 10.25.
CHAIRMAN TAYLOR: Oh yeah. I think you...
MS. CRAVER: You just mean electrical cooperatives?
SENATOR DONLEY: I mean both.
MS. CRAVER: You want both. Okay, electric and telephone.
CHAIRMAN TAYLOR: The concept of the co-op...
MS. CRAVER: Co-ops is 10.25.
CHAIRMAN TAYLOR: Or you could deregulate as far as rates and
other things?
MS. CRAVER: Uh-hmm.
CHAIRMAN TAYLOR: But you would probably not be able to deregulate
as far, or wouldn't want to deregulate as far as certification.
In fact that's one of the problems we ran into on the
deregulation drafting - [what] we were trying to do on that is
that if you deregulate them, you change them, they're no longer
defined as a public utility because they're not regulated. And
if they're not a public utility, they don't have the rights of
right-of-way or condemnation, which is for the ability to put a
pole in the right-of-way. And all of a sudden these companies,
these co-ops and other things would be left with no way of
putting in a new line, say, in a city street without having to go
purchase it. I don't think…
SENATOR DONLEY: I don't think this would intend that to happen.
MS. CRAVER: Let's see.
SENATOR DONLEY: The intent is just to get a specific
recommendation from this task force.
MS. CRAVER: Okay, you wanted deregulation of these co-ops, and
then what were the other ones, municipally owned utilities?
SENATOR DONLEY: Yea.
MS. CRAVER: Okay.
SENATOR DONLEY: Because I think those are the two big issues that
we just, you know, don't necessarily have time to develop the
expertise and the actual time to handle them.
MS. CRAVER: Got it.
CHAIRMAN TAYLOR: Let me tell you, I sure thought it was a lot
simpler than it is. When you get in and start trying to change
those statutes, each one of them has a ramification or an impact
on another one and you start chasing one statute after another
through the books. Okay, with that, we're scheduled to -
Barbara, go ahead.
MS. CRAVER: If I could respond to Senator Therriault's question.
CHAIRMAN TAYLOR: Yes, please.
MS. CRAVER: Under 42.04.010 and the Regulatory Commission under
010(b) is where this, the provisions regarding the Governor
designates a chair of the Commission either by selecting the
member nominated by the Commission or another member. We dropped
that section out. I don't know why. So it does not appear in,
that in the new chapter 08 that there is any comparable provision
that specifies how the chair of the telecommunications
commission...
CHAIRMAN TAYLOR: We'll need to have that.
MS. CRAVER: So we can stick that back in.
SENATOR THERRIAULT: So, we have a commission with a chair and no
mechanism telling us how we get the chair at this point?
MS. CRAVER: Right. So, if you wanted to, you could take
42.04.010(b) and put it into Chapter 8, 42.08.010 and conform it.
SENATOR THERRIAULT: And what's left of the RCA here, what's the
change in their selection of chair? Is it a rotating basis?
MS. CRAVER: Right, they themselves elect a chair from within
their membership every year. They can elect the same person for
three consecutive years. Then that person, if they wanted, has
to take a year off before they can be elected again.
CHAIRMAN TAYLOR: You ought to make that as a conceptual
amendment.
SENATOR DONLEY: Yeah, I move that as a conceptual amendment.
CHAIRMAN TAYLOR: Number two, and that's to take care of the chair
situation where we've left out how the Governor or who was going
to designate it for the new Telecommunications Commission. Is
there objection? There being no objection, that conceptual
amendment passes.
SENATOR DONLEY: And I have a third conceptual amendment.
CHAIRMAN TAYLOR: Go right ahead, Senator Donley.
SENATOR DONLEY: And I would move that, not withstanding how other
boards and commissions are treated under the sunset law, that
these two commissions, if they, the terminology that would be
used when then went into their sunset year would not be that they
were terminated until the end of their sunset year and that, that
we specifically give the name to the last year as the…
CHAIRMAN TAYLOR: How about review year?
SENATOR DONLEY: Well, everybody calls it the wind-down year. I
mean, maybe there's a better terminology, but I would like, I
would like the termination to occur when they're gone. You know,
that being the definition of 'termination,' when they cease to
actually exist rather than they terminate and then they're around
for a whole 'nother year fully doing business.
MS. CRAVER: That could...
SENATOR COWDERY: ...and that they carry on business…
SENATOR DONLEY: Yeah.
SENATOR COWDERY: Until they're, you know...
SENATOR DONLEY: Yeah. Because I think that's really important
with these regulatory commissions, that they have full authority
to continue their business and we ought to say that right in
statute because they perform some [indisc.] functions.
10:00 a.m.
CHAIRMAN TAYLOR: We actually drafted a - Senator Donley, we
actually drafted a provision specifically on that subject
providing for that portion of the definition, that they would be
fully authorized and would be required to do all functions during
that period of time. So that would remove any [indisc.] Attorney
General's opinion or whether something else was out there.
SENATOR DONLEY: I would move that that be part of my conceptual
amendment also.
CHAIRMAN TAYLOR: Okay.
SENATOR DONLEY: And, Mr. Chairman, before we get interrupted
here. I would suggest that since this is a big chunk of
legislation here and it's, a lot of people are just, I don't know
when this got shoved under my door last night.
CHAIRMAN TAYLOR: It was after 5:00 a.m.
SENATOR DONLEY: Okay, because I was asleep. But when it, that we
take a break and let people...
CHAIRMAN TAYLOR: Oh, I was intending to.
SENATOR DONLEY: Good. To take a look at this...
CHAIRMAN TAYLOR: We're going to caucus at 10:00...
SENATOR DONLEY: ...so people could give reasonable, have a
reasonable opportunity to prepare any testimony they have on this
one.
CHAIRMAN TAYLOR: Oh yeah, and there's bound to be other
amendments.
SENATOR DONLEY: And in the meantime, have drafting go off and do
these changes that the Committee's recommended so we can have...
CHAIRMAN TAYLOR: We haven't voted yet on the third one.
SENATOR DONLEY: Yeah.
CHAIRMAN TAYLOR: Does the committee have questions concerning
Senator Donley's third conceptual amendment? Senator Ellis?
SENATOR JOHNNY ELLIS: So the terminology for this existing RCA
and the new telecommunications group would be different from
every other group in statute.
SENATOR DONLEY: Yeah, if that's what it takes. I just, I really
think that 'terminate' is not appropriate when everybody agrees
the last time they went through this, they continued to fully
function. I mean, they weren't terminated, they kept going. And
it just scares people needlessly I think to say well they're
terminated.
SENATOR ELLIS: Mr. Chairman, I understand exactly what is to
occur. I think the terminology has been used by both sides in
this debate to achieve certain ends. I understand exactly what
'termination' means and what the situation is. And anybody else
who's trying to keep an objective view understands it as well. I
don't think it's necessary and I think - I won't go any further.
I don't think it's necessary to have different terminology for
this than we do in every other statute. If you want to change it
for every other board and commission, go right ahead. The stakes
are definitely higher in this situation for both sides, but...
CHAIRMAN TAYLOR: I'm going to strongly recommend getting rid of
sunset altogether on this Commission or just setting a finite
date, there is no wind-down, there is no nothing, that's the date
at which they end if they've not been extended.
SENATOR COWDERY: I think that...
CHAIRMAN TAYLOR: So there's been a lot of debate on it. I
personally did not feel there was enough consensus within here to
make that definition. That's why I said I tried to draft one
last night, kind of left it out because I just felt that it was
another bite that might be a step too far. But I'm more than
happy to entertain it and I think we ought to have something
drafted so that it appears in front of us and I can support that,
Senator Donley, and believe we should discuss it. Senator
Therriault, you, I think, were trying to...
SENATOR THERRIAULT: Well, the whole idea of revisiting sunsets or
looking at that and seeing if there's a different way, looking at
what the federal government does instead with regards to
reauthorization. I think that's a better way to go. I think I
agree with Senator Ellis. The existing terminology doesn't
bother me at all. I understand it. I think it's pretty simple.
SENATOR ELLIS: It's consistent throughout statute. If we're
going to change it for this, we should change it for everything
or...
CHAIRMAN TAYLOR: Have...
SENATOR ELLIS: It would bother me to have special language for
this situation.
CHAIRMAN TAYLOR: Have one commission be using one language for
sunset or termination and another...
SENATOR ELLIS: Yeah, exactly. Change it for everything or not.
CHAIRMAN TAYLOR: Senator Donley.
SENATOR DONLEY: I don't disagree with that. The trouble is that
all we have before us right now is these specific areas of
jurisdiction. I think that would be...
SENATOR COWDERY: A thing that should be addressed.
SENATOR DONLEY: Something totally separate that would be
addressed separately, you know, on how you'd do the whole sunset
provision. And I would support it there, too.
CHAIRMAN TAYLOR: Let me ask...
SENATOR DONLEY: Because I just don't think this language is
accurate.
CHAIRMAN TAYLOR: Let me just ask one question.
SENATOR DONLEY: I mean somebody can say, this board terminates,
th
you know, on the 30 of June. And the average citizen would
th
think, oh, it's gone on the 30 of June, and it's not. It's
still there, fully functioning for another year. That's just not
right. I mean you ought to be able to read the statutes and as
much as possible understand it from the simple English point of
view.
SENATOR THERRIAULT: But you can. You just say, 'It shall
terminate,' section (b), upon termination, they have one year to
wrap up.
SENATOR DONLEY: That's not. That's simply not what English
means, the English word 'terminate' means. You're terminated,
but you're still going to be there. I mean it's inconsistent.
SENATOR THERRIAULT: Well, that's Senator Cowdery's example
earlier. I'm laying you off, but you have two weeks to clean out
your desk and...
SENATOR DONLEY: That's right. You're terminated as of the date
you're gone.
SENATOR COWDERY: No, I think that, that this, I don't know if
we've ever had any challenges, but we have lawyers setting here.
But in the event a decision is made that somebody don't like in
that wind-down year, has there ever been a challenge or could
there be a challenge?
SENATOR DONLEY: I don't know, as long as the statute specifically
said...
SENATOR COWDERY: You know, they say that it was terminated and
this and that. So I think it's an area that needs to be cleaned
up.
CHAIRMAN TAYLOR: At least we could have the drafter come back to
us with some language that we can then debate and have something
in front of us. It's my understanding...
SENATOR THERRIAULT: Mr. Chairman, right now we have a motion.
CHAIRMAN TAYLOR: Just a motion at this point.
SENATOR THERRIAULT: We have to deal with that motion.
CHAIRMAN TAYLOR: That's what I'm trying to do. I've got a
question though for the drafter. And that is: aren't each one of
these sunsets on these commissions individually stated in
statute? I know there's kind of a catchall sunset that I think
takes in the barbers and hairdressers and a whole series of
commissions. And I think there's, isn't there specific language
on individual commissions?
MS. CRAVER: Well, there are two separate subset sections. And
generally the occupational boards, I think they're in 08, I'm not
sure, they have their own section. And 44.66.010 is a
termination of State boards and commissions. And it uses the
same language and lists the boards to which that applies. The
language actually is, 'Boards and commissions listed in this
subsection expire on the date set out after each,' and then you
have the list and the dates they expire. Then (b) is the one
that says, 'Upon termination,' i.e. termination being similar to
being expired, 'the commission listed in (a) shall continue in
existence until June 30 of the next succeeding year for the
purpose of concluding it's affairs.' And...
SENATOR DONLEY: Mr. Chairman, remember the testimony of people
saying, 'I have to go back to Wall Street and explain why
termination doesn't mean termination?' Remember that testimony?
So if it's so bloody clear, why is it that people have this big
problem being scared that Wall Street is freaking out because the
Commission was terminated?
CHAIRMAN TAYLOR: I just wanted that definition [indisc.].
MS. CRAVER: Senator, I just need to be clear that the amendment
that you want applies to both the Regulatory Commission and the
Telecommunications.
SENATOR DONLEY: Yes.
MS. CRAVER: Okay, all right.
CHAIRMAN TAYLOR: That's what your intent was, isn't it, Senator
Donley?
SENATOR DONLEY: Yeah.
CHAIRMAN TAYLOR: And do you feel you have enough information to
draft something that is consistent with Senator Donley's intent?
MS. CRAVER: Yes, I think the idea would be to draft an amendment
that would make it clear that the Legislature wants the
Telecommunications Commission and the Regulatory Commission in
its year after termination to exercise its full powers and duties
under the statute. Yes.
CHAIRMAN TAYLOR: That motion is before us. Is there objection?
There being no objection, you'll also take care of that, that's
the third amendment. Are there, I'm sure there are other matters
that people wish to discuss but it was the intent of the Chair
that we take a break at this point. We have to go to caucus
anyhow on other matters and that we would then return after to
take up individual amendments and testimony on the committee
substitute of those who wish to testify. I don't intend to take
a great deal of testimony but...
SENATOR COWDERY: Five minutes?
CHAIRMAN TAYLOR: I do want to give people an opportunity to react
because these are serious matters that may impact people and I
want them to have an opportunity to [indisc.].
SENATOR ELLIS: And your goal is to move the bill by when? Do you
have a general idea?
CHAIRMAN TAYLOR: My goal is to move this bill, yes.
SENATOR ELLIS: By?
SENATOR COWDERY: After testimony.
SENATOR ELLIS: As soon as possible?
CHAIRMAN TAYLOR: I want to give people an opportunity to react to
it because it's better to do it in here than have it all show up
on the floor. Okay, we will stand in recess, subject to a call
of the Chair. [10:10 a.m.]
TAPE 02-51, SIDE A
1:20 p.m.
CHAIRMAN TAYLOR: ...present, all five members, Senators Ellis,
Cowdery, Therriault, Donley, Chair Taylor. Barbara would you come
forward please and explain the changes that you have made to the
new CS? First, before that, Senator Donley, motion to adopt that
CS for purposes of discussion?
SENATOR DONLEY: I move to adopt the O Version.
CHAIRMAN TAYLOR: Is there objection? There being no objection,
for purposes of discussion, it is adopted by the Committee, the O
Version. Barbara, would you begin with your explanation of the
changes you have made in the last couple of hours?
MS. CRAVER: All right. I'm Barbara Craver, I'm with Legislative
Legal Affairs. Let's see, there was a small change in the title
on line 5, which reflects that we're calling these water
utilities 'regulated public utilities.' The next change, I
believe, is on page 3 in Section 9 and we just added a phrase
regarding what an ex parte communication is. It's 'an ex parte
communication on a substantive matter that is pending or likely
to come before the panel.' Just a little bit more discussion.
That same phrase is used in subsection (e), also, that's on line
24 of page 3. And then a more - a change was made on line 27 of
page 3 which says that 'a communication occurring more than two
years before the filing of' a matter does not qualify a person.
It had formerly said it looked back five years to see if there
were any conflicting sort of ex parte communications, now it's
two. I guess I'd like to add that all of these changes are
mirrored later on for the Telecommunications Commission also and
I'll get to that.
SENATOR THERRIAULT: Mr. Chairman, just a...
CHAIRMAN TAYLOR: Yes, Senator Therriault, go right ahead.
1:24 p.m.
SENATOR THERRIAULT: 'Or likely to come before the panel with a
party to the proceeding.' I'm just wondering in practical terms,
how that would work? And I understand the desire to say well you
can't go talk to them two days before you put your thing in, you
don't get your spin in there. But I'm not sure with this
wording, 'or likely to come before them...'
MS. CRAVER: Well…
SENATOR THERRIAULT: ...is pretty broad. It seems like it would
just about incorporate discussion of anything to do with
telecommunications.
MS. CRAVER: Well, I think...
SENATOR THERRIAULT: Or whatever is to be regulated.
MS. CRAVER: Through the chair, I think that the idea is that
substantive matters are very specific. And I didn't, I didn't
come up with this language, but I don't have a problem with it.
You know, if you are a person who sets tariff rates, don't get
into the nitty gritty of tariff rates because it's likely to come
before you. If you just want to talk about some general matter,
I don't think that it would disqualify you. Is that your
intention Senator Taylor?
SENATOR THERRIAULT: Okay.
MS. CRAVER: And you know, in the event that you err and you know,
you'll be disqualified, it's no horrible, you just won't be on
that panel.
SENATOR THERRIAULT: Okay, but then the two-year look-back from
the point that you made an error...
MS. CRAVER: Yes.
SENATOR THERRIAULT: ...and you're disqualified from the - would
you be disqualified?
MS. CRAVER: No, I think that they're saying, if you have had
something that might be considered an ex parte communication
within the previous two years. You spoke very specifically about
a tariff rate for a certain type of service with someone two
years ago would disqualify you from being on a similar case,
certainly with that party or where that issue was involved.
SENATOR THERRIAULT: And so much of this, the discussions taking
place in the context of the big telecommunications battles that
we've had. But I know from hearing from smaller utilities, and
that's why I kept asking questions about the diversion process,
they want something that is less than the judicial process. They
want the ability to talk to the Commissioner and say, 'What's the
- where's the problem? Oh, that's, well, we'll get that
information together.' And I'm just concerned that this would
just cut off that desire from the smaller players to have
something that's much streamlined and less costly.
CHAIRMAN TAYLOR: There's nothing in here...
MS. CRAVER: Senator Taylor would have to speak to that.
CHAIRMAN TAYLOR: Well, there's nothing in here that would prevent
them from, RCA, from going forward with and creating their own
diversionary system. Not a thing. And with different standards
of procedural due process, a more informal process, there's
nothing that prevents them from doing that and they have rule
making authority. They could do that. In fact, I think they
said they tried to get it started and then kind of ran into some
problems and felt they'd have to make some rules on that. In
fact, I think that was part of the discussion that was in
February over at the ATA meeting in Sitka, was how do we get to a
less formal process than that? I don't believe though that it
takes statutory, additional statutory authorization. I think the
RCA already has that inherent within it. And I'm mentioning just
the RCA because it's my intent, if there's consensus on this, to
withdraw those amendments that provide for the new commission.
SENATOR THERRIAULT: Okay, so the way that this is worded, if they
have a diversion process of some kind, should this be worded so
that it's specific to only those items that are in that quasi-
judicial category?
MS. CRAVER: Well, if you would look at the next section, Section
10, 42.04.090 goes really into detail about what an ex parte
communication is considered and this is adapted from the judicial
canon of ethics. And certain matters, which are factually an ex
parte contact, would not necessarily be considered a violation,
i.e. each member they can stipulate to it they can agree ahead of
time what type of communications are not going to be considered
ex parte contacts. So I think there's ways that the Commission
could, if it was clear that no one had an objection to a
commissioner speaking to someone who was or was going to be a
party in the future on an issue and it was all out in the open,
you would be able to avoid violating the law. And the idea here
is to, you know, over-regulate and really, really protect even
the appearance of impartiality. So it is intended to put up some
barriers to communication between, you know, between
commissioners and parties. It does not apply to staff, however.
So, you know, parties could still speak to staff, I believe.
SENATOR THERRIAULT: And is there the language in here that is
very specific, that it says even something that...
MS. CRAVER: The appearance?
SENATOR THERRIAULT: The appearance. Even if the third party
thinks that there might have been, then the, I guess that was in
a different section, wasn't it?
MS. CRAVER: That's at the, on the bottom of page 3, line 28
through 31, 'Circumstances that might reasonably suggest to a
third party that an ex parte contact had occurred, even if none
was made, shall be considered an ex parte contact.'
SENATOR THERRIAULT: That's seems problematic to me.
MS. CRAVER: It's...
SENATOR THERRIAULT: Anyway, I'll just flag that. Thank you.
MS. CRAVER: Let's see...
CHAIRMAN TAYLOR: Any other changes?
MS. CRAVER: Let's see. On page 4 in Section 10 on line 6 we have
the repeat of the phrase on, about ex parte communications, that
they're 'concerning a matter that is pending or likely to come
before the panel.' Let's see, oh, and I'd just like to point out
for Senator Therriault's benefit, down here on page 4 at section
(d), it says 'If the parties agree to this procedure beforehand,'
a hearing panel may engage in ex parte communications. So there
are procedures to get around the general ban on ex parte.
CHAIRMAN TAYLOR: I'm glad you mentioned that. In reading it, I'd
gone through that. I think if anything, that throws the door
wide open for the Commission itself to come up with a
diversionary process that says if you parties wish to go into
this diversionary process and you stipulate to these rules, you
can have very informal discussions with the Commissioners. And
hopefully they will use that. I think it's a good tool for them.
I'd like to encourage them to do that.
MS. CRAVER: Okay, let's see. Section 11 does not have any
changes, nor does Section 12 from this morning, nor does Section
13. 14 I think had a very minor change, the end of a phrase was
dropped off of the second sentence in Section, which is on line
13 of page 7. I can't remember the language, but basically
continues to allow the judge to adopt a compromise settlement
agreement as an order. 15, 16, 17, 18, 19. Okay, and then in
20, we have the establishment of the Telecommunications
Commission, and the changes here, if any, were intended just to
mirror the changes that were done to the RCA. So I think for
example we found that we had forgotten to put in how the chair
was appointed. And so, on page 10, line 14 in (b) is where we
added the section, the comparable section that's found with RCA
saying that the Governor appoints the chair of the Commission.
We also in section (c) of that same section, which is on line 19
of page 10 states that, 'Members of the commission are appointed
for staggered terms of five years.' The temporary law deals with
how those initial appoints are made to establish a staggering.
Let's see. Let's see, on page 14, Section 42.08.090...
UNIDENTIFIABLE SENATOR: What page?
MS. CRAVER: Page 14, and excuse me, I should also say page 13.
Those two sections on decision-making procedures and impartial
decision-making reflect the changes that were done to the RCA
sections. So these should pretty much mirror the changes. They
have that language about pending or likely to, you know, occur.
Let's see, the next change is, let's see, on page 16, Section 28,
the language was changed from 'water or sewer companies' to the
specific a public utility allowed under section (i), which is
actually the language taken from the original Senate bill, SB
280. And the reason that we had changed it was because at one
point it was contemplated that water and sewer were not going to
be public utilities. But they are public utilities and so we
just changed this back to the original language. So that
original language is found in 28, 29. And then 30 was a section
that was in 280 so we had to add that in to define the type of
eligible public water utility. There are a couple of changes
further up on line 8 and line 11 of page 17 that just specified
exactly how big these utilities were supposed to be to get which
percentage of certain eligible costs.
SENATOR DONLEY: Barbara?
MS. CRAVER: Yes.
SENATOR DONLEY: Section 31, what is that repealing?
MS. CRAVER: That's the one that established in the Regulatory
Commission - a communications carriers section. So if you're
going to have a separate Telecommunications Commission, you don't
need that in the RCA. If you do, if you're not going to have a
separate telecommunications section, you're going to want to put
that back into the RCA.
CHAIRMAN TAYLOR: Delete it?
MS. CRAVER: Yeah. Let's see 32 is there...
SENATOR DONLEY: And that applied, that applies to phasing in the
new timelines. That is not necessary specific to creating a new
Telecommunications Commission.
MS. CRAVER: No. You mean Section 31?
SENATOR DONLEY: 32.
MS. CRAVER: Oh, 32. Right.
CHAIRMAN TAYLOR: 32's identical to the House.
SENATOR DONLEY: Okay.
MS. CRAVER: Yes. Let's see, Section 33 on page 18, lines 10
through 15, include the specific recommendations that you wanted
to see for the task force, 'The task force shall make specific
recommendations in its report advising the legislature [(1)]
regarding the type of arbitration best suited to rate and tariff
issues; [(2)] the extent of deregulation of the electric and
telephone cooperatives organized under [AS] 10.25 and the extent
of deregulation of municipally owned utilities.' Those were the
changes made there.
SENATOR THERRIAULT: I'm sorry, what lines are you on now?
MS. CRAVER: Let's see, page 18, in line 10...
SENATOR THERRIAULT: Okay.
MS. CRAVER: ...through 14. Just to very specifically require the
task force to make some recommendations to the Legislature. And
let's see, 34 I think is new, I think so. That's the one that,
yes, it is, it specifies that both the Regulatory Commission and
the Telecommunications Commission in the year after termination
have, continue to have their full powers and duties under the
title and they shall continue to exercise their powers and
perform their duties during the year following their termination.
Let's see, and then Section 35 at the very bottom of page 18
continuing through the top of 19 is a temporary law to deal with
appointing the initial members of the Telecommunications
Commission so that they start the staggered terms. One person
will be appointed for one year, one person for three years, one
person for five years, and thereafter they'd go on the five-year
staggered rotation. And then Section 36 is the same. The
numbers might have changed, but the intent was to make the
sections that applied to the Telecommunications Commission take
st
effect January 1 of 2003. Otherwise, 37 is the immediate
effective date.
CHAIRMAN TAYLOR: Senator Therriault.
SENATOR THERRIAULT: Back on page 18, the direction of what this
task force is supposed to be looking at. The sentence starting
on line 10 there, 'The task force shall make specific
recommendations in its report advising the legislature
regarding,' number, '(1) the type of arbitration.' Okay, so
that's very specific. They want - we want information back on
which type of arbitration [that] should be used. Number two, the
extent of deregulation. I don't know...
MS. CRAVER: Okay.
SENATOR THERRIAULT: ...the extent. They're supposed to what,
just tell us what extent of deregulation we have in the State
right now? Or should it say...
MS. CRAVER: Yes.
SENATOR THERRIAULT: ...the impact of deregulation?
SENATOR DONLEY: What about the appropriate level of deregulation?
That's what we want them to recommend.
CHAIRMAN TAYLOR: You're looking for recommendations.
SENATOR THERRIAULT: Okay, well, extent just doesn't...
MS. CRAVER: Or recommend...
SENATOR THERRIAULT: ...work for me.
MS. CRAVER: I agree.
SENATOR DONLEY: Yeah, I understand what you're saying. I thought
the same thing when I read it the first time, Gene.
CHAIRMAN TAYLOR: Good point.
MS. CRAVER: We could certainly change it to the recommended...
CHAIRMAN TAYLOR: Well, what language would you suggest?
SENATOR THERRIAULT: I guess I wasn't quite sure. I wanted to go
back to Dave's comments yesterday. What exactly are we looking
for and then we figure out the wording we're looking for.
SENATOR DONLEY: Well, we heard people wanting...
CHAIRMAN TAYLOR: Appropriate level, is that what you want?
SENATOR DONLEY: Co-ops wanting to be deregulated, right? So I'm
looking for a recommendation from the task force for the
appropriate level of regulation or level of deregulation of
electrical and telephone and municipally owned utilities, I mean,
cooperatives, cooperatives and government owned utilities, just a
recommendation. So I mean, it can, it's just the appropriate
level of regulation.
CHAIRMAN TAYLOR: Of regulation or deregulation?
SENATOR DONLEY: Yeah.
SENATOR THERRIAULT: Well, regulation is neutral. Deregulation
presumes that you want to start down that path and what matter of
degree is appropriate, so regulation would be the neutral one.
SENATOR DONLEY: That's why I said regulation.
CHAIRMAN TAYLOR: Okay, so that would, in the, Senator Donley, in
the form of a motion, you are moving to amend line 13, page 18,
deleting the word 'extent' and inserting the words 'appropriate
level of' and deleting the D-E off of regulation so it would make
the word read 'regulation' instead of 'deregulation.'
SENATOR DONLEY: Right.
CHAIRMAN TAYLOR: Is there objection to that amendment? There
being no objection, Amendment Number One passes.
MS. CRAVER: I'd like to draw your attention, the same language is
used on line 14 regarding regulation of municipally owned
utilities.
SENATOR DONLEY: Yeah, okay. Same motion.
CHAIRMAN TAYLOR: Same motion. Is there objection? There being
no objection, we put in the words 'appropriate level' on line 14,
too.
SENATOR DONLEY: Mr. Chairman, are we, well, I had one quick
question. I appreciate the work that you did here in Section 34.
I think it continues to point out the misnomer of the word
'termination.' Did you get a chance, you just ran out of time
probably, to come up with something...
MS. CRAVER: Well...
SENATOR DONLEY: ...along the lines of what I was looking for? I
mean this is helpful. This goes in the right direction and it's
a good step. I support it.
MS. CRAVER: It's - I would suggest that when you think about
changing the language, it's used also in the boards and
commissions section, it's used here and it might in fact have
been used other places in their deregulation and sunsetting
things that happened when it was sort of the rage to do this.
And to the extent that we change those words that have specific
meanings...
SENATOR DONLEY: What about? You know we were looking at the
statute earlier today. It, the first section of the statute
didn't use the word 'termination,' it used the word 'expired.'
MS. CRAVER: 'Expired?'
SENATOR THERRIAULT: 'Expired.'
MS. CRAVER: Yes, 'expired.'
SENATOR DONLEY: I'd rather say in the year after a commission
expires than say in the year after it, you know...
MS. CRAVER: I'd say that had the same legal effect because...
SENATOR DONLEY: Yeah.
MS. CRAVER: …expire is the term used in section (a).
SENATOR DONLEY: Because it's the term used in the first section
applying to what happens in a sunset, right?
CHAIRMAN TAYLOR: I think a rose by any other name smells as
sweet.
SENATOR DONLEY: Well, maybe, but then again, the Daily News
wouldn't be calling liberals progressives, so...
CHAIRMAN TAYLOR: I'm not going there.
SENATOR THERRIAULT: Mr. Chairman, it seems like whatever you do
here though, you've got, you've got in the first section of the
statute (a) section, it's 'expire.' The (b) section is 'upon
termination.' Maybe that should say 'upon expiration.' And then
the (c) section, the 'commission scheduled for termination'
should be the 'commission scheduled for expiration.' So, I mean
if you're going to clean it up and make it consistent.
SENATOR DONLEY: Yeah, even that looks inconsistent. Because
it's scheduled for termination, it seems like the termination
doesn't happen until after the year, right? I mean, even the
fundamental statute seems to be inconsistent, mixing up
terminology. But clearly it says, uses expire in the first
section, right?
SENATOR THERRIAULT: Yes.
SENATOR DONLEY: Well, Mr. Chairman, I just move that the word
'termination' be replaced with the word 'expire' so it's
consistent with at least the...
SENATOR ELLIS: It comports more with my term of 'death-spiral.'
CHAIRMAN TAYLOR: The word is 'expiration' that you're looking
for?
SENATOR DONLEY: Either expire or expiration, whatever the drafter
thinks is more appropriate. That's my motion.
MS. CRAVER: I think we'll use expiration.
CHAIRMAN TAYLOR: That's a motion to amend to insert on line 23,
page 18 the word 'expiration' and...
SENATOR DONLEY: 25.
CHAIRMAN TAYLOR: ...and on line 26. And line 25, excuse me, line
25 and line 26 and line 28.
SENATOR DONLEY: Yeah.
CHAIRMAN TAYLOR: Inserting the word 'expiration' in each of those
places in place of 'termination.' Is there objection to that
motion? There being no objection, Amendment Number Two passes.
SENATOR DONLEY: Mr. Chairman?
CHAIRMAN TAYLOR: Yes, Senator Donley.
SENATOR DONLEY: I'm concerned with Sections 28, 29 and 30 for
several reasons. One, this issue was addressed in the Senate
this year already. Two, while I'm really looking at the other
things that the CS is proposing, and they seem very consistent
with the call, but I don't know if this is necessarily consistent
with the call. It seems like this is not really an RCA issue,
it's a grant, a fiscal issue. So I would move to delete Sections
28, 29 and 30 from the Committee Substitute.
SENATOR THERRIAULT: Sure, you offer an inducement and then you
snatch it back. That's fine, that's fine.
CHAIRMAN TAYLOR: The Lord giveth and he taketh away.
SENATOR ELLIS: Who's the Lord, Mr. Chairman?
CHAIRMAN TAYLOR: I have no idea. Everybody understand the
substance of the motion, to delete 28, 29 and 30 Sections? Is
there objection? There being no objection, Amendment Number
Three passes.
SENATOR DONLEY: Mr. Chairman?
SENATOR COWDERY: 28, 29 and 30?
CHAIRMAN TAYLOR: Yep.
SENATOR DONLEY: And you understand the intent there, Barbara? If
there's any...
MS. CRAVER: Yes.
SENATOR DONLEY: There's going to need to...
MS. CRAVER: Title change, yes.
SENATOR DONLEY: Mr. Chairman?
CHAIRMAN TAYLOR: Do you want to know how to do that one?
SENATOR DONLEY: Do you already have it charted out?
CHAIRMAN TAYLOR: Yep.
SENATOR DONLEY: Okay, well...
SENATOR THERRIAULT: Let's do it conceptually.
SENATOR DONLEY: I would do it conceptually first, yeah. But Mr.
Chairman, I, I think that in these hearings, I am persuaded that
it may be a good idea to separate, you know to have a separate
Telecommunications Commission. I mean, thinking all the way back
to the years I served as Labor and Commerce chair where we
created a special committee on telecommunications in the House.
I mean, these issues have been very, very challenging and very
labor-intensive. But I just am not totally convinced this is
the, the special session is the time to attempt this big step and
I am, you know, I would look forward to, I really appreciate the
task force being included in the CS, and to look forward to some
sort of recommendation back from the task force, whether this
would be, you know, I would support any specific thing to make
the task force specifically give a recommendation too about this.
But I don't think that, I think that this is just a little bit
too big a step to take right at this time. And I would move a
conceptual amendment, if you have the specific sections, I would
appreciate that, to, and there's going to have to be a conforming
amendment, I think in Section 34, too.
CHAIRMAN TAYLOR: Right.
SENATOR DONLEY: To take out the sections that create a new
Telecommunications Commission.
CHAIRMAN TAYLOR: Okay, the substance of the motion then would be
to delete Sections 1, 2, 3, 4, 5, 6, 7, 11, 12, 15, 16, 17, 18,
20, which is a lethal one. 31 also is necessary to be taken out
because that was the repealer of that whole section within it.
And then a conforming amendment would be to delete the words 'and
Telecommunications Commission' on Section 34.
SENATOR THERRIAULT: Mr. Chairman, you didn't say section 22.
CHAIRMAN TAYLOR: Did I? Let me find it.
SENATOR DONLEY: That's why we...
CHAIRMAN TAYLOR: What page is that one on?
SENATOR DOLEY: That's why we like...
MS. CRAVER: 15.
SENATOR DONLEY: ...conceptual amendments.
SENATOR THERRIAULT: 22, 23, 24, you didn't say any of those.
CHAIRMAN TAYLOR: Oh, I'm sorry. Yep, 22, 23, 24.
SENATOR DONLEY: Well, Mr. Chairman, I appreciate...
CHAIRMAN TAYLOR: 25.
SENATOR DONLEY: ...you pointing this out but I really would like
the amendment to be conceptual so the drafter has the flexibility
to do what needs to be done.
CHAIRMAN TAYLOR: No, I have no problem with that. And I withdraw
my comments. I'm just trying to walk us through here to show us
graphically each one that would be removed.
SENATOR DONLEY: Okay.
CHAIRMAN TAYLOR: And 27 also, 26 and 27. But you have an
understanding, Ms. Craver...
MS. CRAVER: Yes.
CHAIRMAN TAYLOR: ...of what the motion and the substance of it,
are - or is, I should say?
MS. CRAVER: Yes, and then we take out 35 also, initial
appointments, obviously, and 36 because there would be nothing to
take effect.
SENATOR DONLEY: But we don't want to lose all of 34, just the...
CHAIRMAN TAYLOR: The phrase 'Telecommunications Commission,'
which appears both in the title and then in the substance of that
paragraph.
MS. CRAVER: I think I've got it.
CHAIRMAN TAYLOR: You should be able to just go through your
computer and hit delete on each of those.
SENATOR THERRIAULT: No, it's never...
SENATOR DONLEY: But keep it around.
SENATOR THERRIAULT: ...it's never that easy.
SENATOR DONLEY: Don't lose that work.
MS. CRAVER: Oh, it's forever enshrined in our database.
SENATOR DONLEY: Maybe that's something someone wants to do next
year. And, okay, so that motion's before the committee?
CHAIRMAN TAYLOR: Yeah. I'm going to take a brief recess because
I need to go to the bathroom.
[THE COMMITTEE TOOK A BRIEF RECESS.]
1:57 p.m.
SENATOR DONLEY: Okay, we'll call the meeting back to order.
There is a motion before us at this time to delete, I believe
that's where we were at, conceptual motion to delete the sections
of the committee substitute that created a separate commission.
Is there any objection to the motion? Hearing no objection, the
motion carries. And that brings the CS back before us.
SENATOR THERRIAULT: Doesn't that just make you want to cry, Barb?
SENATOR DONLEY: We really thank you for your work, Barb, by the
way. Don't lose that computer file. I would like to, I would
propose an amendment to line, after line 13 on page 18, to add to
the list of specific inquiries that the task force would make -
Mr. Chairman, I'm in the process of making a motion to add on
line, on page 18 after line 13 a new item (3) is requesting the
task force to make a specific recommendation as to whether or not
a separate commission to regulate telephone, telecommunication
matters should be created.
CHAIRMAN TAYLOR: And that's to page 18, line 13, you said?
SENATOR DONLEY: Right after 13, in between 13...
CHAIRMAN TAYLOR: It'd be the third item.
SENATOR DONLEY: Yeah, I guess that's after 14. Yeah, it'd be a
new item number 3.
CHAIRMAN TAYLOR: Okay.
SENATOR DONLEY: Just to ask that the commission, the task force
make a specific recommendation on that.
CHAIRMAN TAYLOR: Is there objection to the amendment? You made
that in the form of an amendment?
SENATOR DONLEY: Yes, I did.
CHAIRMAN TAYLOR: Is there objection to that amendment? You have
a, you understand what he wants to do?
MS. CRAVER: Yes, I have it.
CHAIRMAN TAYLOR: There being no objection, that amendment also
passes. I assume that the other amendment you went ahead and
passed in my absence.
SENATOR DONLEY: Yes, Mr. Chairman.
CHAIRMAN TAYLOR: I appreciate you taking that up. I had a phone
call I had to take before I came back. And I wanted this thing
expedited. So, let's go.
SENATOR DONLEY: Okay. Mr. Chairman.
CHAIRMAN TAYLOR: Yes.
SENATOR DONLEY: I guess we need to go through, unless there's
other proposed amendments?
CHAIRMAN TAYLOR: I think Senator Therriault had some questions on
a couple other items. Didn't you, Senator?
SENATOR THERRIAULT: Primarily questions for somebody from the
Commission. So, I don't know if we have it...
CHAIRMAN TAYLOR: There's a Chair. Senator Therriault has a
question for you.
CHAIRWOMAN NAN THOMPSON: Okay.
CHAIRMAN TAYLOR: You're under oath, Senator Therriault, go right
ahead.
SENATOR THERRIAULT: With regards to the Commission electing, the
language here about the Commission electing its chair...
CHAIRWOMAN THOMPSON: Which page are you on?
SENATOR THERRIAULT: It's on page 3, Section 8.
SENATOR COWDERY: Page 3, where?
CHAIRMAN TAYLOR: Section 8.
SENATOR THERRIAULT: Section 8. I'm just wondering if you'd make
comment on the workability of that. And the position that you
fill on the federal board or federal commission, is it, does it
stem from your position as Chairman?
CHAIRWOMAN THOMPSON: No.
SENATOR THERRIAULT: ...or you as an individual?
CHAIRWOMAN THOMPSON: Me as an individual. So that wouldn't be
impacted.
SENATOR THERRIAULT: Okay, no impact there. I was just wondering
if you could make a comment on the change from the Governor
either selecting the board's designee or appointing and going to
this mechanism, if you have comments on that.
CHAIRWOMAN THOMPSON: I don't think the change to election, from
election to Governor's appointment would make as significant a
difference as the change to a one-year term. As a practical
matter now, I was elected by the members when we started and then
the Governor chose the same person that the membership elected.
I think more problematic in my mind is shifting it to a one-year
term because it will make the chairmanship be more political.
And a lot of what you have to do when you're managing an agency's
workflow or responsible for an agency's workflow is sometimes be
unpopular and suggest to people that they need to do things
faster or reprioritize things. And if you're put in the position
of, if it's someone who's concerned about being reelected, then
you're not going to want to make those unpopular decisions. It's
going to be harder. It's also, in terms of, the agency itself
may take different directions or have different emphasis under
different chairmanships and you're going to keep people, you're
going to make the staff potentially dizzy by, you know, a shift
every year or so. You'll spend a lot more time within the agency
worrying about process and who the chairman is. And last, you'll
have an effect that we now see amongst staff amplified. And that
is, they know, some of those have been, well like Jeanne
McPherron that testified, worked at the agency for 30 years. We
all have terms. And so, some staff may feel the need to not be
responsive to a particular commissioner because they figure,
'gee, I'm going to outlast them. They're going to be gone.' And
I can see the same thing happening even more with a shorter term
for chair. Folks are going to be like, 'Well, you know, I can
just misbehave here for six months and there'll be another chair
so it won't matter.' It basically is going to politicize the
position within the agency a lot more. And if the overall goal
is making us more efficient and better able to operate, I think
it's inconsistent with that goal to have a shorter term for
chair.
SENATOR THERRIAULT: Okay. And, let's see, could you talk a
little bit about what we've got here for ex parte?
CHAIRWOMAN THOMPSON: There's a couple of things I noted when I
was reading through it. Most significantly, it's going to be
very difficult to implement. If, as the drafter, Ms. Craver,
noted, it's not applicable to staff, it can be easily
circumvented by the companies. They'll just talk to staff and
have staff talk to us because it's not an ex parte contact under
this change to have staff talk to us. And I think if, under the
recusal provisions, or the disqualification provisions, if even
the appearance of impropriety is how it's written in the judicial
ethics code, and I think it's here likely to - I don't remember
the exact language in here, and I'm not looking at a specific
section, but even if somebody thinks that...
SENATOR THERRIAULT: 'Reasonably suggest to a third party that an
ex parte contact.' 'Reasonably suggest to a third party.'
CHAIRWOMAN THOMPSON: Right. That's pretty broad. Does that mean
that if Commissioner X passes Utility Representative Y in the
frozen food aisle at Fred Meyer and somebody else sees them that,
'gee, they could have been having an ex parte contact, I'm going
to suggest that, that it happened?' Does that mean that
commissioner is disqualified from working on a panel? How
broadly are you going to construe that? In a community the size
of Alaska, that's going to be difficult because we all live in
the community and have kids that play soccer and kids that are in
Boy Scouts and these utility representatives are members of the
same community. I think it's problematic. There's also, I noted
an inconsistency in a later provision, there was the allowance
for or the acknowledgement that you may want to have some kind of
contact to allow for scheduling issues. So that seems to apply
then, in that particular case, there's trust in the Commissioner
that that's all that they're going to talk about. And I don't
know why, if you trust them to just talk about scheduling there,
you don't trust them when they pass each other in the aisle in
Fred Meyer. I don't know how you draw the distinction. How can
you, it seems like you either say, you don't talk to anybody at
all about anything or you do it. Or you do it the way it is now.
You have the rules that we have amongst ourselves that are not
written down that say, you know, it's okay to talk about process.
This seems to try and embody those rules, the same things that we
were talking about, but in a way that's going to be really
difficult to implement and it seems a little inconsistent
internally between the two sections. I guess I just don't
understand how this is going to work.
SENATOR THERRIAULT: Okay, and let me just flip here.
CHAIRMAN TAYLOR: Senator Cowdery, if you'd...
SENATOR THERRIAULT: Yeah, go ahead while I'm flipping.
2:08 p.m.
SENATOR COWDERY: Well, you know, you said earlier, or someone, in
earlier testimony that whenever something happens, [indisc.] you
just say that like a judge would say, 'We cannot discuss
anything.' But to say my kid is playing in your team I don't
think has anything to do it, if in the soccer mom thing or this
and that. I think I had a situation [indisc.] Fred Meyer, a
court case pending and I ran into the judge at Fred Meyer. We
said 'hello' and everything and it was pending. And I'm sure if
I'd have said, 'Hey, about this case,' he would...
CHAIRWOMAN THOMPSON: The judge would have said no.
SENATOR COWDERY: ...you know, that's his duty to do that.
CHAIRWOMAN THOMPSON: No, I agree with you absolutely. But what
if, under this language that's in the last sentence of (e) on the
bottom of page 3, somebody else sees you saying hello, and that
reasonably suggests to a third party that they were having an ex
parte contact because somebody else that just sees you talking
isn't going to know what you were talking about.
SENATOR DONLEY: That's the standard the judges live under now all
the time.
CHAIRMAN TYALOR: Every day.
SENATOR DONLEY: And it's, you know, I mean, obviously two people
on the aisle, you know, in a grocery store, you know unless you
hear them discussing the case, it's probably not reasonable to
suppose that they scheduled a meeting there with shopping carts.
CHAIRWOMAN THOMPSON: No, I agree, but who's going to decide?
SENATOR DONLEY: Now, if you see them in a bar together, you know,
back in a dark room, I mean, I could reasonably have a suspicion
that something's not kosher.
CHAIRWOMAN THOMPSON: Who decides whether it's a reasonable
suggestion or not?
CHAIRMAN TAYLOR: The judge does.
CHAIRWOMAN THOMPSON: So...
CHAIRMAN TAYLOR: Because that's where it ends up.
CHAIRWOMAN THOMPSON: Okay, so how does this get implemented?
CHAIRMAN TAYLOR: The very same people that have to live by that
standard every day.
CHAIRWOMAN THOMPSON: But how does it get implemented? Does that
suggestion go directly to court so you have to file a lawsuit if
you want to say a commissioner is having improper contact? Or do
you file something with the Commission saying I saw, you know,
this is what I'm suggesting? I just don't understand how this
works, you know, as a practical matter.
CHAIRMAN TAYLOR: You have the right to create those regulations
and are authorized to do so.
SENATOR DONLEY: Yeah.
CHAIRMAN TAYLOR: And I would think that you would provide for
some type of notice provision where a plaintiff before you could
notice the Commission that they had concerns about that. And
then the Commission itself, absent that member, would take that
issue up and determine it. Their determination would then be
subject to court review in the Superior Court, just like any
other decision they make, yes.
CHAIRWOMAN THOMPSON: So what happens, go ahead.
SENATOR THERRIAULT: Mr. Chairman, but maybe there's an
explanation, But it says that a third party, even if none was
made, even if no ex parte was made...
CHAIRMAN TAYLOR: Let me give you an example. Second day of the
hearings held in Anchorage, the Commissioner invited up to her
office Ron Duncan and Dana Tindall, closed the door and was in
there for an hour and a half. Now, would that give you the
suspicion that maybe she was talking with them about something?
It might me. Especially when I asked the question about who'd
you talk to and what had been going on the next day and we didn't
discuss any of that, did we? I think that would cause me as a
third person to be concerned. Would that be reasonable? I don't
know. That would be determined by some third-party objective, I
would hope, involved in that matter.
SENATOR THERRIAULT: So, through the regulatory process you would
imagine that they'd put together something where somebody could
express their concern. The Commissioner would have an
opportunity to explain, 'Yes, I spent the weekend with them. I'm
the den leader of the Cub Scouts and they were one of the
volunteer parents. Their kid's in Cub Scouts. We didn't talk
about the issue.' And so they've explained that even, that no ex
parte communication has taken place, they've explained that. And
they'd be able then to dismiss that concern.
SENATOR DONLEY: Well, the other members, hopefully they would,
the other members of the panel would vote on whether or not they
though it was reasonable concern or not. If they felt it was
reasonable concern, they should recuse that commissioner from
that decision-making. And if it wasn't reasonable, then they
would so find and their finding in not being reasonable would be
subject to appeal, I suppose.
CHAIRMAN TAYLOR: We do this every day in the court system. I
really don't...
SENATOR COWDERY: We do it on the floor.
SENATOR THERRIAULT: But okay...
CHAIRMAN TAYLOR: We do it on the floor as far as our own fellow
members are concerned. If, in fact, although I have not seen it,
but if in fact one of our members were sufficiently close to an
issue that it was going to have significant financial impact on
them and they made a good explanation of that to us, I think most
of us would vote to excuse them. I think that's an untenable
position to put them in.
SENATOR THERRIAULT: But the members stand up quite often and say
'I have a conflict,' and we object and that's it, there's no
explanation, there's no vote. But that's, I don't think that's
subject to appeal to the courts. And the courts then would look
at the statute and say even if you've explained that there was
none there, if it's appeallable only to the courts then the
courts are going to look at this law.
SENATOR DONLEY: Well, that's different though because you're
dealing with a quasi-judicial fact-finder here versus the
legislative process. It's just two separate types of
governmental functions.
SENATOR THERRIAULT: Well, this comes from the court system.
SENATOR DONLEY: Right.
SENATOR THERRIAULT: And if somebody makes an allegation in the
court system, the judge can say, 'I disagree.'
SENATOR DONLEY: Well, the first thing you do is you go and you
ask the judge, you say, 'Your Honor, I move that you excuse
yourself from this case because I saw you at the grocery store
with so-and-so.' And the judge goes, 'Well, you know what, we
were both shopping there, we walked down the same aisle, we
didn't say a word about this. You know, and I don't think that's
a reasonable motion, to excuse me just because I ran into them at
the grocery store.'
SENATOR THERRIAULT: Where does it go from there? That's what I
don't know.
SENATOR DONLEY: Well, then you can appeal.
CHAIRMAN TAYLOR: Right. And what you appeal to is you go to an
independent judge.
SENATOR DONLEY: Yep.
CHAIRMAN TAYLOR: And that judge holds that issue to a reasonable
man's standard. And literally, if the perception is such that a
reasonable person would conclude that there was a perception of
conflict, that's all it takes. And they do recuse themselves and
excuse...
SENATOR DONLEY: Barbara seems to be anxious to say something.
CHAIRMAN TAYLOR: Yeah, Barbara?
MS. CRAVER: I just want to point out that 080, which is Section 9
on page 3, is not taken from the code of judicial, the cannon,
the one that is on page 4, Section 10, that one. Not that
they're necessarily inconsistent but just to the extent that
you're assuming that the language in, it's 090 is the one that is
taken from the judicial ethics.
CHAIRMAN TAYLOR: Right.
MS. CRAVER: Okay, I just wanted to make sure you hadn't
misunderstood that.
SENATOR THERRIAULT: Okay, so the...
CHAIRMAN TAYLOR: That provides significant additional definition
if you want to look, page 4, paragraph (c).
SENATOR THERRIAULT: So, we don't know if the judicial standards
actually have this wording that says, even if no ex parte took
place?
MS. CRAVER: I'm sorry, did you ask a...
[CONVERSATION ABOUT CHAIRS]
SENATOR DONLEY: Gene, what specific sentence are you, where are
you at exactly?
SENATOR THERRIAULT: Page 3, line 29.
SENATOR DONLEY: 29, okay.
SENATOR THERRIAULT: The end of the sentence.
SENATOR DONLEY: 'Circumstances might reasonably suggest to a
third party.' That language there?
SENATOR THERRIAULT: No, that's okay, but then...
SENATOR DONLEY: Even if none...
SENATOR THERRIAULT: …even if you explain no communication took
place, I kind of read that that then you're out. Even if you
have an absolutely, we just passed in the frozen food aisle.
SENATOR DONLEY: No, because that's not reasonable, Gene. I mean,
what's reasonable is more like the scenario I gave. If you find
them, you know, one-on-one in a conversation, you know. I mean,
that's, that's, I mean, and it's still going to be some
impartial, you know, well, hopefully, I mean, the other
commissioners are going to be able to make that decision, you
know. I mean...
SENATOR THERRIAULT: I need to think about it a little bit more.
But food for thought there.
CHAIRMAN TAYLOR: The question is literally one of a reasonable
man interpretation of what the events may be perceived to reflect
in a reasonable person's mind. And that is a higher standard,
but it's a standard to which we're actually holding hearing
officers to right now.
MS. CRAVER: Senator Taylor, we had in our office discussed it
basically as a paraphrasing of the appearance of impropriety.
You don't need to prove that impropriety occurred but the
appearance is so compelling that it impairs the reputation of the
people involved and it appears as if they could have indulged in
ex parte or improper conduct. And you need to avoid even the
appearance of it.
CHAIRMAN TAYLOR: I don't know of any other way to do it.
SENATOR THERRIAULT: And I'm not saying that I have the answer
either. Nan, I'm not sure if I cut you off then.
CHAIRWOMAN THOMPSON: Well, there are two other things that I
noticed which are more in the nature of questions, which is, and
actually one of them was highlighted by what you just described
as, you know, it comes to the Commission, there's some kind of
process and then it goes on to court if you don't agree. What
happens to the timeline if there's some kind of recusal issue
pending? And what happens if you have so many complaints about
it that you don't have a panel anymore? I mean, under the, and I
understand that you're considering amending it to get rid of this
Telecommunications Commission as a separate body so that'd give
you a few more. But how are you going to empanel a decision-
making group if you've got, you know, a couple, with a group this
small, if a couple of them are eliminated because there's some
allegation that they might have had ex parte contact even if none
was made? And if you're, you can't move forward and be actively
making a decision on a case if you're in the process of deciding
whether one of your panel is eligible to participate or not. So,
and at the same time the bill has very strict timelines. What
you're going to do is freeze, you're going to put a window of
time in there when they're not going to be able to act.
SENATOR DONLEY: How do you think your timelines are more
restrictive than the constitutional timelines for a speedy trial?
I mean you've got the same problem there. I mean, you know, if
you have five members on a panel, you're currently appointing
three to make decisions. That gives you two free bites, right,
before you run into a problem. And...
TAPE 02-51, SIDE B
SENATOR DONLEY: ...reasonably adopt some regulations on how to
deal with a problem if all three, you know, if there was three
people that, you know, ran into this. The odds of that are going
to be pretty de minimis to start with. But I think it'd be
reasonable to adopt some regulations, if this happens, then this.
You could bring in a, you might, you know, suggest something even
next year, you know, bring in some sort of temporary...
CHAIRMAN TAYLOR: Hearing officer or temporary...
SENATOR DONLEY: Yeah, have the hearing officer serve as your
third person or something. But this wouldn't be that hard to
craft between now and the next legislative session.
CHAIRWOMAN THOMPSON: How is that on ex parte?
CHAIRMAN TAYLOR: Well, the other choice, you know, is to go
forward and make a decision with a panel that is impugned. What
a dandy thing that is for the public and for the people sitting
before you.
SENATOR THERRIAULT: Could, unless you've got any other comments
on that, I want to move to the timelines section.
CHAIRWOMAN THOMPSON: Okay.
SENATOR THERRIAULT: And I have to find it myself here.
CHAIRMAN TAYLOR: It's page 6.
CHAIRWOMAN THOMPSON: It's on page 6.
CHAIRMAN TAYLOR: Section 13.
SENATOR THERRIAULT: Just to hear your comments. Now we've got,
the due cause has been, has been pulled out. And I understand
the potential for abuse, you know, and things just moving ahead
and using due cause to extend things indefinitely. But I want to
understand how this might work.
CHAIRWOMAN THOMPSON: I think the potential problem I see with
eliminating good cause is what you have here is something that
allows either all the parties, allows all the parties to agree to
make an extension so it puts one party, any of the parties, in
the position of holding the others hostage and just saying, 'No.'
And there are reasons, the example of a big case where additional
information gets filed shortly before the hearing goes and the
parties need a chance to analyze it in order to present the case.
That one party that waited until the last minute to file
something is just going to say, 'No,' when everybody asks for an
extension. So everybody else is put in the position of saying
'Well, we either have to let this go into effect by default or go
to trial with the ability not to develop a complete record.' And
the Commission's put in a position, because the parties haven't
been able to develop a complete record, of making a decision on
less than a complete record. I think that there are
circumstances that are good cause and that if you completely
eliminate that and have as the only option all parties agreeing,
you're empowering one recalici - creating the opportunity for
gamesmanship that would not benefit a good decision-making
process. I think that the version which required us to report
good cause and then the Legislative Budget and Audit Committee or
the Legislature can scold us and say 'Gee, that's not good cause,
you shouldn't have done that,' was better. There was adequate
incentive, with that additional burden of reporting, if cause, if
a case is ever extended for good cause. I thought that was more
workable in a practical sense.
2:12 p.m.
SENATOR THERRIAULT: Okay, but there was some concern that that
[indisc.] report to the Legislature, you know, from two years to
two years, maybe the Chairman pays attention maybe he doesn't on
LBA. If you had information that was filed, you're getting close
to the decision date, what length of time would you need under a
due cause mechanism, do you think, to incorporate that and make
sure you have a good record and the ability? Because I, one of
my concerns is if it's a tremendous rate increase request, and
you get right up there and maybe the person making the request
files that last-minute information, nobody else, you know,
they're saying, 'Wait a minute, we haven't had time to digest
this.' You get to the deadline, that rate increase just, boom,
goes into effect, which is impacting the ratepayers, consumers.
CHAIRMAN TAYLOR: They've got, they've got every opportunity to
turn it down, too. Nothing precluding you from making a decision
that says, 'No, you're not entitled to that...'
SENATOR THERRIAULT: But they would turn it down. Do we want them
to make a policy call, 'We're just saying no because we don't
know?' Or should we give them the ability...
CHAIRMAN TAYLOR: We've had a lot of testimony of them saying,
'Yes' without knowing so.
SENATOR THERRIAULT: Or should we give them the ability to make
sure the record's complete and then make a good decision?
CHAIRWOMAN THOMPSON: It's tough to say without the circumstances
of a particular case how much time you'd need. I think what you
want as a policy matter is for us to be able to make good
decisions, for us to be able to have an adequate record in front
of us before we make decisions. And I can't tell you that that's
an additional month or it may be a week, it may be six moths. I
don't know. It depends on the case and what the circumstances
are. Which is why I thought, you may not want to call it 'good
cause,' but some way to allow an extension when it [indisc.]
merit seems like a better way to deal with that issue.
SENATOR THERRIAULT: Mr. Chairman, it's just the abrupt...
CHAIRMAN TAYLOR: I've been concerned about it, also.
SENATOR THERRIAULT: ...seems problematic.
CHAIRMAN TAYLOR: I move to amend page 6, line, between 27, 28,
insert the same provision that the House had, with the following
exception: That good cause may only be extended once and only for
a period of 90 days.
SENATOR DONLEY: I like that.
SENATOR THERRIAULT: And still have the reporting to...
SENATOR DONLEY: LBA or whoever.
SENATOR THERRIAULT: You said...
CHAIRMAN TAYLOR: I had left out the reporting here, but if
anybody wants the reporting, I don't...
SENATOR THERRIAULT: I wasn't sure when you said the House
language with 90 days. I wasn't sure.
SENATOR DONLEY: Right. I like the reporting.
CHAIRMAN TAYLOR: But I don't think we had the reporting in here,
did we?
SENATOR DONLEY: We didn't need it with this.
CHAIRMAN TAYLOR: We didn't need it with this.
CHAIRWOMAN THOMPSON: There was nothing to report.
MS. CRAVER: ...Section…
CHAIRMAN TAYLOR: ...that you don't need if you're not going to
have a good cause to be reported.
CHAIRMAN TAYLOR: Right.
SENATOR DONLEY: If we go back to 90 days with good cause, I'd
still like to know how many times they're extending for 90 days.
So, yeah, I would like the reporting back in there.
CHAIRMAN TAYLOR: Okay, I'll modify the amendment to suggest
conceptually that you also utilize that same provision that
report would have to be made to the Legislature and I think it's
quarterly if I remember right.
MS. CRAVER: I can duplicate that.
CHAIRMAN TAYLOR: On how many of these good cause 90-day
extensions occurred. Is there objection to that amendment?
There being no objection, that amendment passes.
SENATOR DONLEY: And I would just, I know you guys got a really
hard job. But, you know, if a defendant refuses to waive their
speedy trial rights in the criminal justice system, the courts
shift into hyper-drive and they get the evidence and they get
ready and they go to trial. I mean it's just a matter of...
CHAIRMAN TAYLOR: It's 145 days.
SENATOR DONLEY: Yeah, you need to tighten up, you know, so that
people don't, and if somebody comes in at the last minute, just
like in those kind of, those situations and dumps a bunch of new
evidence that wasn't available to the parties during the
discovery, the judge makes a ruling, says, 'Look,' you know, if
it's something really, you know, like here's an eyewitness that
is very, you know, that's, you know, I mean, maybe the judge
allows it in. But if it's just a bunch of new paperwork, the
judge goes, 'Hey, you didn't, you didn't meet your discovery
guidelines and I'm not letting you put this into evidence.' I
mean, that, you can adopt reasonable criteria like that for your,
for your discovery process and for your evidentiary process. As
long as you use due process principles in conforming to them, you
can make it work.
CHAIRWOMAN THOMPSON: What if, and this is a circumstance that
happened recently, that additional information would result in a
rate decrease? So I, as a policy maker, am forced to say, 'Well,
you filed that too late. I'm not going to consider that in this
trial. You've got to file in a separate trial.' But if I do
that, I know, you know, I'm potentially having consumers charged
too much for a period of time. That's not consistent with my
responsibility.
SENATOR DONLEY: When would it ever end then?
CHAIRWOMAN THOMPSON: Huh?
SENATOR DONLEY: I mean, you give this example, well, will it ever
end? Will you ever make a decision? Maybe somebody will walk in
here next week with some suggestion that maybe we could reduce
some rates again. You know, it'll never end if you don't adopt
some timelines and some criteria. And when that rate, when the
issue comes back around, you're going to know that evidence and
you're going to be able to conform, you know, I mean, and make
that call. I mean - it's just kind of like what we've been going
through for the last two weeks here. When was it ever going to
end? We're just trying to bring this to a resolution.
CHAIRMAN TAYLOR: We've had 30 hours of testimony...
SENATOR DONLEY: Maybe it's not the most perfect bill and maybe
it's not the bill that I wanted, but at some point, somebody's
got to make a decision in government, right?
CHAIRMAN TAYLOR: After 30 hours of testimony, there was one thing
that was consistent in the complaints that were raised. It was
that you didn't have a handle on discovery and you didn't have a
handle on how long it was going to take in the process. And
every single one of these people talked about would you please
implement some regulations; give us a level playing field so we
have some timelines. The only reason these timelines are here
from the House is because of that same angst being reported to
them over there. So, please, try to find some way to incorporate
some regulations that we don't have to impose on you. Because
we'll do it wrong. I would hope that you would do it right
because you know what you need to do.
SENATOR THERRIAULT: Mr. Chairman, do we have, we have a pending
motion now, I think.
SENATOR DONLEY: The motion was from the chair to...
CHAIRMAN TAYLOR: That motion was approved.
SENATOR THERRIAULT: Okay.
CHAIRMAN TAYLOR: And that was to add the reporting requirement
and a 90-day extension under good cause from the Commission.
SENATOR THERRIAULT: Okay, and...
CHAIRMAN TAYLOR: Anything further?
CHAIRWOMAN THOMPSON: Any other further comments on the bill in
any other specific section, or just generally?
SENATOR THERRIAULT: On the bill.
CHAIRWOMAN THOMPSON: The only other part that I think is quite
problematic, there's a lot of little details that are
problematic, but I focused, in the time I had to review it, on
the big-picture items, and this is, again, assuming that the
telecom commission is out, has to do with the provisions on the
commission that's created, the task force as it's called in this
bill. The task force...
SENATOR COWDERY: What page is that?
CHAIRWOMAN THOMPSON: It's on page 18, Senator Cowdery. It's
Section 33. I don't, with all due respect, I don't - I thought
that industry representatives who knew more about our work would
be better qualified to provide useful suggestions. I also think
that section (c) allowing them access to confidential information
is quite problematic. We have a lot of confidential information
that relates to utility finances, competitively sensitive
information, trade secrets. And this suggests that the members
of this commission have access to all that. It doesn't clearly
tell me whether that task force is subject to the legislative
ethics act, the executive branch ethics act. And I imagine that
the utilities who file confidential information with us need some
reasonable assurance that that confidentiality is going to be
protected. That raised, that was a red flag in my mind.
SENATOR DONLEY: Barbara, do you think we could tie it to one of
the specific provisions, probably it would be more appropriate -
be in the administrative ethics act as far as confidentiality?
What would be the penalties for violating confidentiality, you
know?
MS. CRAVER: My goodness.
SENATOR DONLEY: I'm not asking what the penalties would be. But
maybe we link it to whatever it is for, you know, the Department
of Revenue handles confidential, you know, oil and gas
information all the time. You know, there must be some sort of
existing penalty in law for violation of that.
MS. CRAVER: I think the consequences for violating Legislative
Ethics Acts, which I know more about, are they basically get to
public censure. They're not significant civil or criminal
penalties.
SENATOR DONLEY: Well, that's, I'm not even suggesting that this
is the same as the legislative act...
CHAIRMAN TAYLOR: I can tell you that...
SENATOR DONLEY: [Indisc.].
CHAIRMAN TAYLOR: ...violating the, if you've signed a
confidentiality agreement with the executive branch and you're
going to go in and start looking at oil...
SENATOR DONLEY: Could be the executive branch...
CHAIRMAN TAYLOR: ...it's forever. You can never reveal any of
it. And if you ever do reveal any of it, you can be subjected to
civil suit by any party that assumes they've been damaged by it.
Which means any oil, if you're in there looking for oil revenues,
any oil company has the right to sue you forever. It's pretty
heinous. Most people have a real hard time signing that one.
SENATOR DONLEY: They didn't get me to sign that one during the
Exxon oil spill because I just wouldn't do it, I mean, yeah.
SENATOR THERRIAULT: Mr. Chairman, first of all, was this language
included in the House suggestion on their...
CHAIRMAN TAYLOR: Yep.
SENATOR THERRIAULT: ...commission? Did they have this (c)
section? And is there, we've spelled out three different things
here that we want them to look at. Do we believe that it's
necessary that they have access to all that corporate
profitability information to do what this commission, what we
would like this commission to do?
SENATOR DONLEY: [Indisc. Sentence.] I mean, I think that they
ought to have the discretion to act as they think they need. I
mean, this doesn't say that they have to go get this stuff. It
just says that they have access. I think, you know, people
should be allowed, they should have access if they feel they need
it, you know, as long as they make sure they keep it
confidential.
SENATOR THERRIAULT: So if you have somebody who's appointed,
somebody who's appointed to this body who is associated with one
of the companies, and if we want company expertise, they'd be
able to go and get information on their competitor, look at
information, confidential, corporate information. Why...
SENATOR DONLEY: They would have the obligation under penalty of
whatever the executive branch act is, if we incorporate that, not
to use that and not to reveal it to their company. Second, you
know...
CHAIRMAN TAYLOR: I think...
SENATOR DONLEY: ...a reasonable person wouldn't do that, first of
all, you know, wouldn't abuse it that way.
CHAIRMAN TAYLOR: I don't know how they'd even accept the
appointment.
SENATOR DONLEY: I mean one of the safeguards you could use is
that...
SENATOR COWDERY: What about the same standards as the...
SENATOR DONLEY: ...the task force, you know, if they're going to
be asking for confidential information, is the task force as a
whole would have to, you know, agree to go ask for that. That
would be one safeguard. So you wouldn't have one individual as
in your scenario.
SENATOR THERRIAULT: That'd give me a little bit more comfort.
CHAIRMAN TAYLOR: What safeguards do we have right now with the
Commissioners themselves who have access to all of this? What's
their penalty?
SENATOR DONLEY: Of course, there's a difference. They're not
specifically working for any for-profit agency as in Gene's
scenario, which I think is legitimate.
CHAIRMAN TAYLOR: I think is a good scenario and I appreciate
that. What do we have for Commissioner right now? Why not give
them the same standard of penalty?
MS. CRAVER: Commissioners are public officers under the executive
branch ethics act. Whatever they, well, the conflict would be
using it for private gain. It wouldn't necessarily be, you know,
selling secrets to a competitor, you know, to an interested
party, which is like criminal.
SENATOR DONLEY: Let me propose this.
MS. CRAVER: Beyond ethics.
SENATOR DONLEY: Let me try this. Barbara, I'm going to move a
conceptual amendment that to access confidential information, it
has to be a vote of the majority of the task force. First of
all, that prevents the scenario where one individual in the task
force goes and grabs information. I mean if they want to get
confidential information, they as a group have got to agree that
this is something they really want to see. So that's my first
proposal.
MS. CRAVER: The task force requests confidential information from
the Commission and the Commission has to decide by a majority to
release that?
SENATOR DONLEY: Not the Commission, no.
MS. CRAVER: The task force?
SENATOR DONLEY: The task force by majority vote has to decide if
they want it.
SENATOR THERRIAULT: Are you going to then also tie that to the
executive ethics standards somehow, too?
SENATOR DONLEY: Yeah, I think they ought to be subject to
whatever the executive act ethics standards are regarding access
to confidential information. I would include that in my
conceptual motion.
CHAIRMAN TAYLOR: Everybody understand the motion? Discussion on
it? Is this the same standard or language that the House had
concerning their task force?
CHAIRWOMAN THOMPSON: No, Senator Taylor, the task force was not
in the House version.
UNIDENTIFIABLE SENATOR: Yeah, it was.
MS. CRAVER: Yeah, there's...
CHAIRWOMAN THOMPSON: It was an advisory committee.
MS. CRAVER: Well, it's the same.
CHAIRMAN TAYLOR: Okay, advisory committee.
SENATOR DONLEY: With all that long list and all.
CHAIRWOMAN THOMPSON: Yeah there are, Senator...
CHAIRMAN TAYLOR: Every token profession that we can find, I
guess...
CHAIRWOMAN THOMPSON: The other ...
CHAIRMAN TAYLOR: ...wanted to be on it, so...
CHAIRWOMAN THOMPSON: The other big difference between the House
version and this version is this task force is entitled, under
section (a), 'to inquire into all aspects of the operation of the
Regulatory Commission.' And under the House version, it was, the
committee was supposed to investigate and propose reforms limited
to the Committee's regulatory process. The authority of the task
force is much broader. It arguably allows them to inquire into
substantive results. And the policy concern there is what you're
creating is a shadow commission. You're going to have someone, a
group, which, if they want to, is empowered to second-guess the
Commission on all of its decisions with authority that broad.
CHAIRMAN TAYLOR: After second-guessing they render a report and
they give that to the Legislature.
SENATOR THERRIAULT: Well, was there a conscious decision to make
their charge something more than looking at the process, making
suggestions on the process of the Commission?
CHAIRMAN TAYLOR: It's to make it as broad as possible for them to
look at things like deregulation, which wouldn't be part of the
regs, which your group's limited to, the House group. I don't
know how they, they look at the questions like, 'What's the
better form of arbitration?'
SENATOR THERRIAULT: Well, that's process. That's process.
SENATOR DONLEY: I understand the distinction. I appreciate,
yeah, I, but don't have a big problem with it. I mean I don't
know why that's bad. I mean if they choose to look at things,
other things to help them reach a conclusion as to the process
things, I'm okay with that. They don't have any authority to
make any substantive changes. They come back and make a
recommendation.
CHAIRMAN TAYLOR: That's the same information our auditors are
entitled to, isn't it?
SENATOR THERRIAULT: I don't know, our auditors did the audit,
would they have access to the corporate profitability
information?
CHAIRWOMAN THOMPSON: The confidential information? They didn't
ask. I don't know whether they had the legal authority to have
access to that information or not. But I don't think when the,
the legislative auditors were looking at our process and to see
whether we were adequately performing what we were required to do
under the statute. The confidential information of any utility's
finances wouldn't have been relative, relevant, sorry.
SENATOR DONLEY: Is this still my conceptual pending?
CHAIRMAN TAYLOR: Yes, it's still on the floor. We're discussing
it.
SENATOR THERRIAULT: Could you just repeat that?
SENATOR DONLEY: Yeah, it was to limit, to say that if the task
force wanted access to any confidential information, it would
have to be by a majority vote of the task force and that they
would be subject to the executive ethics act as far as
maintaining confidentiality of information they obtained.
CHAIRMAN TAYLOR: I share some of Senator Therriault's concerns
about, especially on the appointment, if we end up with either
the Speaker or the President appointing someone that is from a
competing company. I think that really, even with a majority
vote, even with the sanctions provided, I think it places that
person in an awful difficult position. And if you talk about a
perception of conflict, I think that's pretty clear perception.
And they could be as pure as driven snow in the way that they
handle themselves. So I, I like having the penalty phase in
there and it taking the majority of the committee to do that.
But I'm thinking that you might want to have, I don't know how
better to structure that and yet how to allow that task force to
still do a meaningful job, is the question, too. That, I'm kind
of divided on that issue, but it...
SENATOR THERRIAULT: And do you have a...
CHAIRMAN TAYLOR: I'd appreciate any other discussion myself.
SENATOR THERRIAULT: Go ahead.
CHAIRWOMAN THOMPSON: No, that was the last big...
SENATOR DONLEY: Senator Therriault, just, my motion's still
pending.
SENATOR THERRIAULT: Yes, I'm sorry, I thought she had a last
comment on that motion.
SENATOR DONLEY: Oh, okay, I'll just, okay, I'm sorry.
SENATOR THERRIAULT: Okay, then.
SENATOR DONLEY: I thought we were going on to something else.
CHAIRMAN TAYLOR: Question. Is there objection? There being no
objection, the amendment passes. And you understand it, Barbara?
MS. CRAVER: I think I do.
CHAIRMAN TAYLOR: Okay. My concern is I have, I have agreed that
we would make every effort to put this bill onto the floor at
4:00. And I'm very concerned about how much time is going to be
available to Barb and the drafters to get an actual typed
document in front of the members in that time.
SENATOR THERRIAULT: Okay, Mr. Chairman, one last thing. I think
I'd like to make a conceptual motion on Section 8 of the bill,
which deals with the election of the chair. I like the election
of the chair process, but I do share a little bit of the concern
expressed by the Chairman here from the Commission that, and we
run into that all the time, you've got people in agencies that
have been there a long time and you might have a new division
director or a new commissioner even and they'll just wait them
out and they know they can do that. And if you've got this
potential of, you know, the chair changing every year, I think
you'll see that, you'll see some of that. So I would just like
to conceptually move that the chair be elected and just leave it
at that.
SENATOR DONLEY: Oh, I see, just remove the one-year...
SENATOR THERRIAULT: Yeah.
SENATOR DONLEY: ...term? So leave it up to...
SENATOR THERRIAULT: And Barbara, if we don't speak to the length
of the term, would it just be until the membership of the
Commission chose to change?
MS. CRAVER: You could revert back to the current, which says the
term is four years. If you don't, and if you don't...
SENATOR DONLEY: That's not what we had in mind.
MS. CRAVER: Okay. I'm not...
SENATOR COWDERY: What happens if, Mr. Chairman, if somebody is
elected and two years from now they decided to have another
election, even though, you know, and they...
SENATOR THERRIAULT: Well, Barbara, under the current statute, how
would that be handled? It says here the term is four years.
What if the majority of the Commissioners said, 'You know, we
think we need a change?'
MS. CRAVER: Well, it looks to me like, if the term is four years,
the Governor designates that chair, the chair stays unless the
Governor...
SENATOR DONLEY: Barbara, we're not...
MS. CRAVER: I guess, goes to the drastic step of removing the
commissioner.
SENATOR DONLEY: We're not even talking about going there, where
the status quo is. We're talking about a variable, or variation
in an election process for the chair. Okay, so lets not
[indisc.] go back to what the status quo is. What we're
interested in, and you know it kind of cuts both ways. I mean,
if you let them just elect any time they want, well then you're
falling into Nan's argument, one unpopular decision, they may
just replace the chair. But if you make it so that it's, so it
might cut actually against what the testimony was about that. So
I'm trying, right now I'm just going through the pros and cons of
it, you know, and I was, you know, there's other...
CHAIRMAN TAYLOR: Go ahead.
MS. CRAVER: It seems to me that the significant difference in (b)
in the current draft is that it takes the appointment power away
from the Governor. So you're still, it doesn't sound like you're
debating whether or not that's good.
SENATOR DONLEY: No.
MS. CRAVER: Okay. So then you just want to make the term of the
chair, who's elected by the Commission, longer. Whether or not
you decide...
SENATOR DONLEY: Well, maybe.
MS. CRAVER: Whether or not to do so.
SENATOR THERRIAULT: I guess, then, rather than leave it...
CHAIRMAN TAYLOR: I like having the opportunity for the board
itself to control its internal affairs. And I think that's very
important to boards to be able to do that. And if they want to
continue to reelect the same chair, they ought to be able to do
so. I just put in a term limit of three and they would have to
go off and another person come on, at least for one year, and
then they could serve again if they're reappointed and
everything's going fine. The idea of going along with a three-
year term or a two-year term, in my opinion, locks them in.
Because these people are staggered terms, they're rotating
through out this period, all five of them are. And they're going
to be coming up for...
SENATOR DONLEY: Why not let the, another middle ground, would be
let the commissioners decide. You could have for up to, they can
choose somebody for up to a certain period of time. If you want
to make it two years, then they could, if they only want to make
it for a year, they could make it for a year. Or they could make
it for two years, you know. I mean, that would be another way
kind of smack right in the middle of where you're trying to go.
SENATOR THERRIAULT: I've got a motion. Let me just amend my
motion that, or amend my motion that would, so it would be that
they elect their chair for a term of three years.
CHAIRMAN TAYLOR: Everybody understand the motion? I object.
SENATOR DONLEY: Yeah, I think that's too long. I think I could
be persuaded that giving them the discretion to go up to two
years, I could probably support. I think three years is a little
long. [Indisc.].
SENATOR THERRIAULT: Yep.
CHAIRMAN TAYLOR: Question? Roll call.
SENATE CLERK: Senator Donley?
SENATOR DONLEY: No.
SENATE CLERK: Senator Cowdery?
SENATOR COWDERY: No.
SENATE CLERK: Senator Therriault?
SENATOR THERRIAULT: Yes.
SENATE CLERK: Senator Ellis?
SENATOR ELLIS: Yes.
SENATE CLERK: Senator Taylor?
CHAIRMAN TAYLOR: No. Motion fails. Other items? Chair to
entertain a motion on the bill.
SENATOR DONLEY: Mr. Chairman, I move the committee substitute as
amended - ready for that motion?
CHAIRMAN TAYLOR: Yes.
SENATOR DONLEY: Okay, I move the committee substitute as amended
from committee with individual recommendations.
CHAIRMAN TAYLOR: Is there objection? There being no objection,
the bill as amended will move from committee, as soon as we've
received the typed version. And I hope your people can get it
back quickly to us this time, Barb. And I appreciate so much
your help all night last night, too. Thank you very much and
thank your staff for that. Anything further? I wanted to take
this time to thank the members of the Committee for over 30 hours
of endurance and disruption of your personal lives and your
schedules that none of us had hoped to go through. I think this
product is a far superior product to that which was delivered to
us. I think it provides for some levels of integrity within the
system that we can be proud of. I think that it will be helpful,
both to the Commission and to those who appear before it because
the timelines now are definitive and have some teeth. I think
that we also have an opportunity for a more cohesive working
relationship within the Commission itself in that the members
will decide who their chair is and when. And I think all of
those are healthy and good aspects that would not have occurred
but for the hard work of this Committee and the great patience
and support that you have provided to me as the Chair. And I
thank each of you for that and appreciate very much your
attendance and your hard work. And I also want to thank again
all those who appeared and who have stood by ready and willing to
offer their support and advice and they have done so in a very
professional fashion and the Chair appreciates that, also.
SENATOR ELLIS: Mr. Chairman, you mentioned the bill being on the
floor of the Senate at 4:00. Does that mean the Senate Finance
Committee waived its referral?
CHAIRMAN TAYLOR: It's my understanding they will, but I can't
guarantee that because I don't control that committee.
SENATOR DONLEY: Yeah, I'm fine with the waiver. I can't speak
for my co-chair or the members of the Committee, for that matter.
And the waiver, of course is subject to the vote of the body,
too.
CHAIRMAN TAYLOR: Here's a document to sign. Of course we don't
have the final in front of us. But you'll...
MS. KELLY HUBER [staff To Senate President Rick Halford]: Once we
get it, I'll make sure the Committee members have a copy.
CHAIRMAN TAYLOR: Each member will receive a copy before this
thing does go on the floor so we can each, and hopefully you'll
each read through it and take the time to verify that those
amendments are correct and correct with your understanding of
what they were. We are adjourned. [2:52 p.m.]
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