Legislature(2009 - 2010)BUTROVICH 205
03/10/2009 01:00 PM Senate TRANSPORTATION
| Audio | Topic |
|---|---|
| Start | |
| SB48 | |
| SB53 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| SB 48 | |||
| * | SB 53 | ||
SB 48-MEETINGS OF ROAD SERVICE AREA BOARDS
1:04:10 PM
CHAIR KOOKESH announced the consideration of SB 48.
ERNEST PRAX, Staff to Senator Therriault, said the original
version of SB 48 spoke to helping road service commissions
quickly respond to issues related to harsh weather conditions
and still comply with the Open Meetings Act. Under that Act a
public hearing notice has to be posted before taking action to
respond to issues such as a heavy snow fall or a washed out
road. Following discussions with the Fairbanks North Star
Borough, a committee substitute (CS) was developed to expand the
open meetings exemption to all municipal boards, committees,
commissions, and other similar bodies meeting that conduct
administrative or managerial business.
1:06:38 PM
The CS also streamlines the definition of "meeting" under AS
44.62.310(h)(2). Under current statute the meeting requirements
for advisory bodies are more stringent than those for policy
making bodies. The bill establishes that the open meetings
requirements for advisory bodies are the same as the
requirements for government agencies that are authorized to
establish public policy. This provides consistency in what
constitutes a meeting, he said.
1:08:44 PM
SENATOR PASKVAN asked if a road service area member would be
required to report back to the other board members if he or she
made an administrative or managerial decision.
MR. PRAX said he doesn't believe any follow-up is required, but
he would defer to Renee Broker.
SENATOR PASKVAN added that he's trying to figure out how the
reporting requirement will work because the individual service
district member may define "solely administrative" or "solely
managerial" differently than the board.
1:10:15 PM
RENEE BROKER, Attorney, Fairbanks North Star Borough, informed
the committee that service area boards typically have only three
service area board members. So as it stands right now, those
commissioners can not talk to one another about road service
area issues because doing so would constitute a meeting. This
exemption is designed to allow the commissioners to talk before
making a decision. One commissioner would be able to pick up the
phone and call the other commissioners and discuss which pot-
hole needs attention first, for example. The whole purpose of
this is to increase communication so everyone is more informed
of a decision. Now some service areas get around the open
meeting requirement in order to act quickly to fix a plugged
culvert or some other situation by delegating all decision-
making authority to just one commissioner. When that is done
there is no communication or input until the next regularly
scheduled meeting. It is only then that the other commissioners
find out what was done and the attached cost.
1:13:25 PM
SENATOR PASKVAN said his question is whether there would be any
reporting to the full board about an administrative decision to
confront the emergency; a policy-setting decision is to fix one
road over another while an emergency-management decision is to
order a load of gravel for a road washout.
MS. BROKER reminded the committee that a service area does not
address a borough-wide function. These small service areas do
not have employees but they are functioning as the equivalent of
a public works department. Public works decisions about which
street to plow first and which pot-hole to fix are typically
made by municipal employees and not in the context of an open
meeting. This transfers that same concept to the borough and
allows small service areas that don't have public works
departments or employees to make day-to-day decisions and
provide prompt efficient service to their constituents. SB 48
allows road service area commissioners to consult with one
another about a decision just like employees in a department
would consult.
1:15:45 PM
SENATOR PASKVAN questioned whether this might result in service
area boards not holding meetings.
MS. BROKER explained that service areas are required to meet
quarterly. In addition to their managerial role, service area
commissioners have eight other duties all of which require
meetings. These are policy making obligations like recommending
a budget to the assembly, recommending a mill rate levy, and
putting together a list of projects for funding.
SENATOR PASKVAN asked what other entities would fall within the
parameters of "boards, committees, commissions, or other similar
bodies."
MS. BROKER said in the Fairbanks North Star Borough the fire
service areas are the only other boards or commissions that
would be affected. This is limited to service area
responsibilities where boards and commissions are fulfilling the
role that would otherwise be performed by employees.
SENATOR PASKVAN asked if she is aware of any other areas of the
state that would need such a broad exemption for anything other
that road service districts.
MS. BROKER said no; she doesn't recall other borough attorneys
throughout the state mentioning a problem occurring other than
with respect to service areas.
1:17:55 PM
SENATOR PASKVAN recapped his two areas of concern, which relate
to reporting back to the full board on whatever managerial
action was taken and whether this might apply to entities other
than road service districts.
SENATOR KOOKESH clarified that the committee is discussing the
CRA committee substitute, also known as version E.
SENATOR MENARD noted that she doesn't have a sponsor statement
in the bill packet.
SENATOR PASKVAN observed that the analysis section of the fiscal
note indicates that this is limited to service area boards so
they can respond quickly to hazardous road conditions. He
doesn't have a problem allowing that but he isn't sure that it
doesn't apply to a lot more than that. Page 2, line 12, mentions
"boards, committees, commissions, or other similar bodies" so
it's unclear whether it's an overly broad application. "Again, I
don't mind them having the ability to fix the road, but I don't
know that we need to go beyond that," he said.
CHAIR KOOKESH asked Ms. Broker if she would like to testify on
the bill.
1:22:48 PM
MS BROKER, Attorney, stated support for SB 48 on behalf of the
Fairbanks North Star Borough (FNSB). The bill fixes two
unintended consequences of the Open Meetings Act without
affecting the important public policy goals and intent of the
Act. The public continues to have the ability to participate in
the legislative process and FNSB believes that this will result
in a stronger more defensible Act. It's already recognized that
public employees who perform administrative and managerial
functions can not effectively perform those duties and still
comply with the Act so they are exempted. SB 48 simply extends
that principle to volunteer boards and commissions in the rare
instances where they are performing the same duties that would
otherwise be performed by paid employees.
The second fix addresses and clarifies that the same numerical
standard that policy making bodies live under will also apply to
advisory bodies. That standard should not be more stringent for
advisory bodies that are simply making recommendations. Under
current law three of the nine borough assembly members can sit
down and discuss an issue, but three members of a nine member
advisory body can't do that. "We don't think that was intended
and we don't think that makes any sense so we strongly support
this bill," she said.
1:25:06 PM
SHAWN KITTLE, Commissioner, Chena Spur Road Service Area,
Fairbanks, reported that this issue was brought forward at the
February 23 meeting and a motion was made to unanimously support
SB 48.
1:25:57 PM
LUKE HOPKINS, Member, Fairbanks North Star Borough Assembly,
stated support for the current version of SB 48. He has been
asked why two road service commissioners or two fire service
commissioners can not meet to discuss an administrative action
on a contract that has been previously issued by the borough
without a public notice of a meeting. This is a problem with
respect to getting contract work done to open a culvert, plow
snow, or cut brush along a road. He is a member of the board of
the Alaska Municipal League, and this issue will be taken up at
the April meeting. He has spoken with other municipalities and
all agree that it is reasonable to make minor changes to this
law without undoing the Open Meetings Act.
The original law missed the mark since two assembly members can
sit down and talk about policy actions, but two members of a
non-policy making service area commission can't. It seems
reasonable to have both under the same standard, he said.
1:29:31 PM
SENATOR PASKVAN asked if he believes the bill appropriately
addresses the distinction between managerial functions and
policy making functions.
MR. HOPKINS said yes; "I think that these administrative duties
are on contracts already established, it's not to go out and
talk about creating a new contract or issuing a contract."
Furthermore, very few boards and commissions administer
contracts so the effect is narrow.
1:30:36 PM
TIM BECK, Fairbanks North Star Borough Assembly, said he is also
the chair of the Fairbanks Assembly Road Service Area Committee
- the entity that brought this legislation forward. He thanked
the sponsor. He related that the issue came up when two
commissioners stopped to look at an active construction project
and talk with the contractor. That action violated the Open
Meetings Act. This bill appears to be what is necessary to allow
commissioners to do their job as expected without breaking the
law, he said.
1:31:54 PM
RONALD ELLINGWORTH, Chair, Twenty-Three Mile Slough Road Service
Area, and member of the Borough District Service Commission,
said current law places commissioners in the position of
choosing to comply with the law, to ignore the law, or to find
ways to circumvent the law. This should not be acceptable and SB
48 addresses these concerns. Because AS 44.62.310 does not
exempt road service areas from the public meeting requirement,
these volunteer commissioners are unable to conduct routine
administrative or managerial duties without proper notification
and a subsequent public meeting. Currently the service area is
responsible for implementing a contract that was established by
the borough public works. This entails calling the contractor
out to do work that has been agreed to at an agreed rate.
However, two road service commissioners can not stop along the
road and discuss that contracted work. They can't send an email
to talk about plowing the road after a snow storm and they can't
discuss whether to call out the contractor to cut brush without
noticing a public meeting. Road service areas are a fact of life
in the Fairbanks region, but the current public meeting law
makes it difficult to impossible to conduct routine business
without breaking the law. Providing an exemption would solve
this problem.
MR. ELLINGWORTH said it's interesting that he can talk to the
borough public works department without violating the public
meeting law, but he can't have a similar discussion with his
fellow commissioners without giving public notice of a meeting,
waiting the appropriate length of time, and then having the
discussion at the public meeting. In response to an earlier
question by Senator Paskvan, he explained that decisions of the
road service area are fairly obvious to its members because the
snow has been plowed or the pot-hole is fixed. During the
quarterly meetings the individual commissioners give reports to
recap the actions they have taken and the costs they incurred.
If this exemption is granted all the road service area
commissioners could participate in the decision making process
before any action is taken, he said.
1:35:33 PM
SENATOR GENE THERRIAULT, Sponsor, SB 48, said he expects the
committee has heard from individuals who have examples of how
problematic this can be. Some of the scenarios are ridiculous
and that's what is being addressed. "Hopefully you'd agree that
we've addressed that without throwing things too wide open," he
said.
CHAIR KOOKESH asked if he's aware of any opposition to the bill.
SENATOR THERRIAULT said no, but there have been concerns
expressed about opening things too wide. However, once it's
understood that this is for the purpose of implementing policy
and not discussing or making policy, people are willing to allow
more latitude.
SENATOR MENARD asked if this will also help fire service areas.
SENATOR THERRIAULT said yes; it will also help other advisory
boards because they would no longer have more restrictive
meeting standards than policy making city councils or borough
assemblies.
SENATOR KOOKESH questioned why there had been no testimony from
Anchorage.
SENATOR THERRIAULT said he believes that the Municipality of
Anchorage (MOA) has road powers and community councils, but he
isn't sure about the structure.
SENATOR KOOKESH closed public testimony.
SENATOR MEYER related that Anchorage has limited road service
areas (Lrsa) and it's never been brought to his attention that
this change would be an issue.
CHAIR KOOKESH asked for a motion.
1:38:46 PM
SENATOR DAVIS moved to report CS for SB 48 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, CSSB 48(CRA) moved from the Senate
Transportation Standing Committee.
| Document Name | Date/Time | Subjects |
|---|