Legislature(2009 - 2010)BUTROVICH 205

02/04/2010 01:00 PM TRANSPORTATION


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01:01:55 PM Start
01:02:00 PM HB114
01:58:59 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 114 USE STATE TRANS FACILITY FOR DISASTER AID TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 114-USE STATE TRANS FACILITY FOR DISASTER AID                                                                    
                                                                                                                                
1:02:00 PM                                                                                                                    
CHAIR  KOOKESH  announced  the consideration  of  HB  114.  [CSHB
114(TRA) AM was before the committee.]                                                                                          
                                                                                                                                
1:03:40 PM                                                                                                                    
SENATOR MENARD and SENATOR DAVIS joined the committee.                                                                          
                                                                                                                                
REPRESENTATIVE RAMRAS,  Alaska State  Legislature, sponsor  of HB
114, described HB  114 as a compassionate aid bill  to allow this                                                               
and  future  governors  to use  state  transportation  assets  to                                                               
deliver aid  to Alaska communities  in times of  eminent disaster                                                               
without having to first declare a disaster.                                                                                     
                                                                                                                                
REPRESENTATIVE  RAMRAS explained  that  he introduced  HB 114  in                                                               
early  2009  after  struggling  to  access  state  transportation                                                               
assets to deliver 40,000 pounds  of emergency food and $25,000 in                                                               
cash  to villages  in Western  Alaska that  were facing  economic                                                               
disaster. This proved to be  very difficult. State transportation                                                               
assets could  not be used  to move the  supplies and much  of the                                                               
money that had been raised had to be used for transportation.                                                                   
                                                                                                                                
HB 114  is forward looking; it  seeks to provide a  path for this                                                               
and future governors  to be able to find a  course of action that                                                               
doesn't  require  a   declaration  of  emergency,  Representative                                                               
Ramras stated.                                                                                                                  
                                                                                                                                
1:07:12 PM                                                                                                                    
SENATOR MEYER  questioned why  the fiscal  notes are  zero rather                                                               
than  indeterminate,  since  the   bill  proposes  to  use  state                                                               
transportation assets.                                                                                                          
                                                                                                                                
REPRESENTATIVE RAMRAS  cited a transcript  of a statement  by Mr.                                                               
McHugh when he  was director of communications  for Department of                                                               
Military and Veterans Affairs (DMVA).                                                                                           
                                                                                                                                
     The language gives the DMVA  emphasis and directions on                                                                    
     how  to   proceed  when  the  department   responds  to                                                                    
     emergencies.  He explained  that the  change would  not                                                                    
     impact  the DMVA's  operating budget.  He offered  that                                                                    
     the disaster relief fund is  funded by the Legislature.                                                                    
     When the  fund reaches a certain  threshold cost, which                                                                    
     he said  is between  $500,000 and $1  million depending                                                                    
     on the  situation, the  DMVA requests  additional funds                                                                    
     to accomplish the mission and rescue Alaskans.                                                                             
                                                                                                                                
1:09:23 PM                                                                                                                    
SENATOR PASKVAN said  he believes that the bill  in well meaning,                                                               
but he questions  why it includes reference  to "gross negligence                                                               
or  reckless or  intentional misconduct."  Including this  clause                                                               
absolves the state of any responsibility if someone is hurt.                                                                    
                                                                                                                                
REPRESENTATIVE RAMRAS  explained that  the provision  was offered                                                               
as  an  amendment  on  the House  floor.  He  didn't  necessarily                                                               
support it, but wanted to move the bill.                                                                                        
                                                                                                                                
SENATOR PASKVAN said he understands  that from a management level                                                               
that  there should  not be  liability  if someone  says they  are                                                               
going  to get  a  charitable product  to a  village.  That is  an                                                               
insulated decision,  but if  someone on  the ground  runs someone                                                               
over with a  motor vehicle that has insurance,  why wouldn't that                                                               
insurance  be  responsible. It's  a  fundamental  question as  to                                                               
which state policy  is more pressing - the  state's motor vehicle                                                               
policy  that  mandates coverage  for  that  type  of act  or  the                                                               
state's policy  to distribute emergency aid.  Understand, I fully                                                               
support that,  but it's the  policy issues  that are at  odds, he                                                               
said.                                                                                                                           
                                                                                                                                
JANE PIERSON, Staff to Representative  Ramras, explained that the                                                               
language is  usually consistent with  AS 26.20.140 -  Immunity of                                                               
government,  employees,   and  authorized  volunteers   or  other                                                               
persons.  The  Representative  who offered  the  Floor  amendment                                                               
thought  there  should  be some  liability  threshold  for  gross                                                               
negligence  and   things  done  outside  the   normal  course  of                                                               
business.                                                                                                                       
                                                                                                                                
1:12:55 PM                                                                                                                    
SENATOR PASKVAN responded he understands  it is outside the scope                                                               
of ordinary and  usual activity, but that's  what governments are                                                               
best positioned to  do. They respond in times  of emergency. That                                                               
decision to  response should be  an immune decision  that carries                                                               
through to  the boots on  the ground.  If the state  responds and                                                               
then somebody runs  someone over with a car, does  the state just                                                               
tell the person who was run over that the state doesn't care?                                                                   
                                                                                                                                
1:14:42 PM                                                                                                                    
REPRESENTATIVE  RAMRAS   reiterated  that   it  was   a  specific                                                               
accommodation  to  Representatives  Gruenberg  and  Kerttula;  he                                                               
believes the amendment is superfluous to the legislation.                                                                       
                                                                                                                                
CHAIR KOOKESH  referenced page 1, line  7, and asked why  it says                                                               
the governor "may" make state transportation.                                                                                   
                                                                                                                                
REPRESENTATIVE RAMRAS  opined that  "may" is indicative  that the                                                               
governor  has an  appropriate  judgment call  to  make; the  word                                                               
"shall"  would  unnecessarily  encumber  the  executive  and  its                                                               
transportation assets.                                                                                                          
                                                                                                                                
He  added  that  last  year   it  was  frustrating  to  hear  the                                                               
governor's  staff say  it was  against the  law to  move food  to                                                               
rural Western Alaska. His response  was that "there happens to be                                                               
a higher  moral code  in the blue  statute book."  Having created                                                               
the  supply chain  he  and  his staff  then  made  a decision  to                                                               
allocate much of  the $25,000 to transportation  that hadn't been                                                               
otherwise donated. He reported  that very generous transportation                                                               
donations had come in from  Carlile, Alaska Airlines, and smaller                                                               
commuter carriers, but often the  per-pound cost to transport the                                                               
food was nearly  as much as the food itself.  He noted that after                                                               
delivering 40,000 pounds of food  to 11 villages, others followed                                                               
that lead  and delivered an  additional 44,000 pounds of  food to                                                               
Western Alaska. This not only  fed hungry people it helped smooth                                                               
the divide between urban and rural Alaska, he said.                                                                             
                                                                                                                                
1:18:55 PM                                                                                                                    
CHAIR  KOOKESH asked  how the  former governor  moved the  44,000                                                               
pounds                                                                                                                          
                                                                                                                                
REPRESENTATIVE RAMRAS  replied he believes that  private aircraft                                                               
was used.  He spoke  of the difficulties  he had  encountered and                                                               
reiterated that he  prefers to look forward; HB  114 puts another                                                               
tool in the governor's toolbox.                                                                                                 
                                                                                                                                
SENATOR  PASKVAN observed  that the  federal government  does not                                                               
have the level of immunity  that's offered in subsection (b) when                                                               
it  declares a  state of  emergency  and responds.  He asked  the                                                               
sponsor if  he would mind  if the  committee amended the  bill to                                                               
its original form, which did not include that immunity.                                                                         
                                                                                                                                
1:21:27 PM                                                                                                                    
REPRESENTATIVE RAMRAS  replied he  would be comfortable  with the                                                               
change, but it would create  a concurrence conflict in the House.                                                               
Thus, it would  be more accommodating to the success  of the bill                                                               
if it were to remain unchanged.                                                                                                 
                                                                                                                                
SENATOR MENARD said she appreciates the clarification.                                                                          
                                                                                                                                
1:24:23 PM                                                                                                                    
MCHUGH   PIERRE,  Deputy   Commissioner,  Alaska   Department  of                                                               
Military  and Veterans  Affairs, said  the administration  is not                                                               
opposed to HB  114, but the specific language  is important. It's                                                               
necessary to include the word  ["may"] to give the administration                                                               
latitude in making the decision to take action or not.                                                                          
                                                                                                                                
HB 114  addresses immunity before  a disaster is  declared. "This                                                               
is addressing when a state department  such as DOT or DMVA or DPS                                                               
gives  a plane  or a  boat or  a car  to somebody.  It's not  the                                                               
state's responsibility then  when that person wrecks  the car. It                                                               
is  the person  and the  person's nonprofit  organization -  it's                                                               
their responsibility," Mr. McHugh  said. It's important to ensure                                                               
that the  nonprofit is properly  insured so that if  someone does                                                               
wreck  the car  and hurt  somebody, that  the nonprofit  can take                                                               
care of the injured person.                                                                                                     
                                                                                                                                
1:26:59 PM                                                                                                                    
MR. MCHUGH  said the sponsor has  a heart for service;  he really                                                               
did  step  up to  respond  to  the  disaster in  Western  Alaska.                                                               
However, "It  was found  that there could  have been  more action                                                               
taken. The  governor does have  power to use state  equipment for                                                               
virtually anything -  pre disaster or post disaster.  It's just a                                                               
matter of how we pay for  it." He clarified that a National Guard                                                               
asset  is a  federal rather  than state  asset. Thus  the use  of                                                               
equipment in  that realm is narrowed.  "We support Representative                                                               
Ramras and … we hope that  this is another tool in the governor's                                                               
tool chest," he said.                                                                                                           
                                                                                                                                
1:28:13 PM                                                                                                                    
CHAIR KOOKESH  asked if the  administration supports the  bill if                                                               
it moves forward with the word "may."                                                                                           
                                                                                                                                
MR.  PIERRE  thanked him  for  the  clarification; "may"  is  the                                                               
appropriate word.                                                                                                               
                                                                                                                                
SENATOR PASKVAN asked why the state  should not be liable in tort                                                               
if it  is delivering  compassionate aid  and someone  is injured.                                                               
"Why shouldn't  we just stick  with Alaska's  general operational                                                               
planning distinction?"                                                                                                          
                                                                                                                                
MIKE NAVE,  Assistant Attorney  General, Civil  Division, Natural                                                               
Resources Section, Alaska  Department of Law, said  that's a good                                                               
question. He suggested the committee  review AS 26.23.020 (c) and                                                               
(g).  It  supports  Mr.  Pierre's  statement  that  the  governor                                                               
already  has  the  authority  to  commit  state  resources  to  a                                                               
disaster response.  The problem is  that it's not clear  how this                                                               
new  grant of  immunity  will mesh  with  the existing  statutory                                                               
immunity provided in AS 26.23.  DOL is somewhat concerned that it                                                               
might be less  broad and strong and could lead  to a new immunity                                                               
standard that is not summary judgment capable.                                                                                  
                                                                                                                                
1:32:27 PM                                                                                                                    
SENATOR  PASKVAN   summarized  that  the  state   already  has  a                                                               
statutory structure to deal with  governor declared disasters. He                                                               
asked the standard for liability  under AS 26.23.020 and assuming                                                               
there  is a  governor declared  disaster or  emergency. He  added                                                               
that he's  trying to figure out  if there is a  distinct standard                                                               
for liability that is separate  from the state's general planning                                                               
operational test that's included in Title 45.                                                                                   
                                                                                                                                
1:33:43 PM                                                                                                                    
MR.  PIERRE clarified  that  during a  declared  disaster only  a                                                               
state employee would be operating a  state vehicle. "HB 114 as it                                                               
stands would  take it and move  into a separate category  that is                                                               
not yet  defined." How do  we treat  the situation where  a state                                                               
vehicle  is  operated  by  a  nonprofit  employee?  The  immunity                                                               
section is included so that  the state isn't held responsible for                                                               
actions  taken  by an  employee  of  a  nonprofit or  some  other                                                               
acceptable organization, he stated.                                                                                             
                                                                                                                                
SENATOR PASKVAN  asked Mr.  Nave if  he agrees  that the  bill is                                                               
confusing as it relates to other state statutes.                                                                                
                                                                                                                                
MR.  NAVE opined  that  the interplay  between  Chapter 26.23  in                                                               
general and  the immunity grant in  HB 114 would be  confusing in                                                               
the event  of litigation.  It is  then that  it would  matter how                                                               
these sections fit together because  it will have specific impact                                                               
on individual  defendants and their potential  liability. DOL can                                                               
see arguments coming that lead it  to believe that there could be                                                               
confusion about who is granted immunity and who is not.                                                                         
                                                                                                                                
1:36:39 PM                                                                                                                    
SENATOR PASKVAN  noted that Alaska  has pure  apportionment under                                                               
AS 09.17.080. His  understanding of what Mr. Pierre  said is that                                                               
if  the state  was  reasonably providing  a  vehicle, then  there                                                               
would be no allocation of fault  to the state under existing law;                                                               
it would fall solely on the nonprofit driver.                                                                                   
                                                                                                                                
MR. NAVE  replied that may  be an intention behind  this proposed                                                               
statute.  But if  the  act of  turning over  control  of a  state                                                               
vehicle was negligent,  you might get different  opinions. In one                                                               
case with  a disaster  declaration there  might be  tort immunity                                                               
for certain state decisions; perhaps not in another case.                                                                       
                                                                                                                                
1:38:32 PM                                                                                                                    
CHAIR KOOKESH questioned  whether the state would  ever turn over                                                               
an airplane or vehicle to anyone that is not authorized.                                                                        
                                                                                                                                
MR. PIERRE  responded that's why  the word "may" is  so critical.                                                               
"So we have the ability to  discern from someone who is competent                                                               
and  someone who  is not.  That way  when we  are faced  with the                                                               
situation, we  will be in  the right  position of making  a sound                                                               
judgment call," he said.                                                                                                        
                                                                                                                                
REPRESENTATIVE   RAMRAS  said   it  wasn't   his  intention   for                                                               
nonprofits  to operate  state assets.  It would  be possible  for                                                               
members  of nonprofits  to participate  in loading  and unloading                                                               
airplanes. The scope of liability  discussed in the House went to                                                               
volunteer  church members  loading  a state  van  and what  would                                                               
happen should a state employee  drive over a volunteer. "We don't                                                               
anticipate church group leaders  flying state airplanes or marine                                                               
craft," he said.                                                                                                                
                                                                                                                                
CHAIR  KOOKESH commented  that  he has  driven  boats of  various                                                               
sizes  all over  Southeast waters  and he's  sure he  wouldn't be                                                               
allowed at the wheel of a state ferry.                                                                                          
                                                                                                                                
MR. PIERRE  responded that  the sponsor  has a  good idea  and we                                                               
support the expansion of the governor's toolbox.                                                                                
                                                                                                                                
SENATOR PASKVAN  stated his concern,  which is that it's  easy to                                                               
lose sight  of the innocent who  might be injured. He  wonders if                                                               
the  state's policy  should be,  "We're  in a  disaster we  don't                                                               
care." That walks all over the innocent, he said.                                                                               
                                                                                                                                
MR. PIERRE said he hopes that will never happen.                                                                                
                                                                                                                                
SENATOR PASKVAN responded, "Your hope conflicts with language."                                                                 
                                                                                                                                
1:42:55 PM                                                                                                                    
SENATOR MEYER asked Mr. Pierre to comment on the fiscal note.                                                                   
                                                                                                                                
MR. PIERRE  explained that  the fiscal note  should be  zero. The                                                               
agency  should be  able  to absorb  certain  expenditures and  if                                                               
necessary  it will  ask for  a supplemental  to take  care of  an                                                               
extraordinary expense.                                                                                                          
                                                                                                                                
SENATOR  MENARD said  she appreciates  Mr. Pierre's  comments and                                                               
the sponsor's Good Samaritan work.                                                                                              
                                                                                                                                
CHAIR  KOOKESH summarized  that the  administration supports  the                                                               
bill, the  word "may" is  important, and  the fiscal note  can be                                                               
addressed further in the finance committee.                                                                                     
                                                                                                                                
MR. PIERRE said yes.                                                                                                            
                                                                                                                                
CHAIR KOOKESH closed  public testimony and asked the  will of the                                                               
committee. He said he doesn't have a problem moving the bill.                                                                   
                                                                                                                                
1:45:40 PM                                                                                                                    
SENATOR PASKVAN said he has a  problem with subsection (b) and at                                                               
a minimum  it should be  discussed. Representative  Ramras didn't                                                               
let the lack of  a state law stand in the  way of accomplishing a                                                               
magnitude  of good  and  he  made the  state  look  great in  the                                                               
process.  It's clear  that a  law  is needed  to get  rid of  the                                                               
barriers he  encountered, but given  the testimony from  Mr. Nave                                                               
and  Mr.  Pierre,  subsection  (b)   is  at  best  confusing  and                                                               
misapplied.                                                                                                                     
                                                                                                                                
SENATOR PASKVAN moved to strike subsection (b) from HB 114.                                                                     
                                                                                                                                
SENATOR MEYER said  he would prefer that  the judiciary committee                                                               
address the  question because it  appears to be legal  in nature,                                                               
but if  it doesn't have  a referral  to that committee  then this                                                               
committee should give it consideration.                                                                                         
                                                                                                                                
CHAIR KOOKESH noted that the bill next goes to finance.                                                                         
                                                                                                                                
MS. PIERSON explained that last  year Mike Mitchell with DOL said                                                               
he saw  no problem with the  concept of the bill.  However, torts                                                               
arising  from   gross  negligence  or  reckless   or  intentional                                                               
misconduct are a  concern because that is not  contained under AS                                                               
26.20.140, the  state's liability  and disaster statute.  That is                                                               
where HB  114 would fall if  subsection (b) is not  included. Mr.                                                               
Mitchell's  point was  that  if subsection  (b)  is included  the                                                               
state would be able to get  past any claim with summary judgment.                                                               
This gives more liability to a  person who is hurt, which was the                                                               
intent of the amendment.                                                                                                        
                                                                                                                                
CHAIR  KOOKESH  asked   Mr.  Nave  if  he   could  alleviate  the                                                               
committee's concern regarding subsection (b).                                                                                   
                                                                                                                                
1:49:36 PM                                                                                                                    
MR. NAVE  replied he can  foresee problems because it  is outside                                                               
the scope of the more detailed  disaster statutes. In the case of                                                               
individual accidents, the chance  of state employees and officers                                                               
obtaining summary  judgment would  go down. Subsection  (b) reads                                                               
as if  it is  intended to increase  potential state  liability in                                                               
lawsuits  over what  exists  in other  statutes  that pertain  to                                                               
disasters. That gives DOL pause.                                                                                                
                                                                                                                                
1:50:49 PM                                                                                                                    
SENATOR PASKVAN  cited AS 26.20.140  (a). "The state,  a district                                                               
of the  state, and the  employees, agents, or  representatives of                                                               
the  state or  district are  not  liable for  personal injury  or                                                               
property damage sustained by any  person appointed or acting as a                                                               
civilian  defense   worker."  He  expressed  concern   about  the                                                               
potential unintended consequence if a volunteer were to be hurt.                                                                
                                                                                                                                
He further  observed that subsection  (b) says that the  state is                                                               
not liable  if it is  "reasonably attempting to comply  with this                                                               
chapter." This appears to be  an ordinary negligence standard, he                                                               
said.                                                                                                                           
                                                                                                                                
MR. NAVE  said that in  contrast, HB 114 subsection  (b) purports                                                               
to grant broader  immunity to a larger class of  people, but on a                                                               
narrower substantive  basis. The interplay between  the statutory                                                               
grants of  immunity or  limitations on  state immunity  is almost                                                               
certain to  raise arguments in  one accident about  which statute                                                               
should apply  to whom.  The answers could  be different  and have                                                               
unintended  consequences for  different  people  involved in  the                                                               
same accident.                                                                                                                  
                                                                                                                                
MR. NAVE further pointed out  that the language in subsection (a)                                                               
is somewhat different than had been described.                                                                                  
                                                                                                                                
1:54:50 PM                                                                                                                    
SENATOR PASKVAN  asked if  AS 26.20.140  (b) is  a reasonableness                                                               
standard for liability with respect to death or injury.                                                                         
                                                                                                                                
MR. NAVE replied it's a fair summary.                                                                                           
                                                                                                                                
SENATOR  PASKVAN asked  if the  conclusion would  be that  HB 114                                                               
subsection (b) would expose an innocent, injured person to non-                                                                 
recovery for their injuries even if state were unreasonable.                                                                    
                                                                                                                                
MR.  NAVE  replied  it  would depend  on  the  circumstances.  If                                                               
subsection (b)  were enacted into  law it's difficult  to predict                                                               
how  a  judge  would  or  would not  apply  it  to  a  particular                                                               
accident. The  standard in  subsection (b)  is different  and the                                                               
bar  is  higher;  it's  basically  gross  negligence.  How  those                                                               
statutes will work together in a future lawsuit is a concern.                                                                   
                                                                                                                                
CHAIR KOOKESH asked Senator Paskvan if he maintains his motion.                                                                 
                                                                                                                                
1:57:03 PM                                                                                                                    
SENATOR  PASKVAN  summarized  his  understanding  of  Mr.  Nave's                                                               
statement. Subsection (b)  sets a higher bar for  the innocent to                                                               
overcome to be compensated for negligence of the state.                                                                         
                                                                                                                                
CHAIR KOOKESH announced he would hold HB 114. He asked the                                                                      
sponsor to work with Senator Paskvan and DOL to try to resolve                                                                  
the differences and he would ask for a judiciary referral.                                                                      
                                                                                                                                
SENATOR PASKVAN said that is most satisfactory. We're all in                                                                    
favor of a law change, but I don't want to hurt the innocent, he                                                                
said.                                                                                                                           

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