Legislature(1993 - 1994)

02/01/1993 01:00 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        February 1, 1993                                       
                            1:00 p.m.                                          
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Rep. Brian Porter, Chairman                                                  
  Rep. Jeannette James, Vice Chair                                             
  Rep. Gail Phillips                                                           
  Rep. Pete Kott, arrived later                                                
  Rep. Joe Green                                                               
  Rep. Jim Nordlund, arrived later                                             
  Rep. Cliff Davidson                                                          
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
  None                                                                         
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  *HB 90:   "An Act making corrective amendments to the Alaska                 
            Statutes as recommended by the revisor of                          
            statutes; and providing for an effective date."                    
                                                                               
            MOVED OUT OF COMMITTEE                                             
                                                                               
  *HB 58:   "An Act relating to the budget reserve fund                        
            established under art. IX, sec. 17, Constitution                   
            of the State of Alaska."                                           
                                                                               
            HEARD AND HELD OVER                                                
                                                                               
  (*First public hearing.)                                                     
                                                                               
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  DAVID R. DIERDORFF                                                           
  Revisor of Statutes                                                          
  Legal Services Division                                                      
  Legislative Affairs Agency                                                   
  Goldstein Building, Room 405                                                 
  Juneau, Alaska 99801                                                         
  Phone:  465-2450                                                             
  Position Statement:  Described HB 90 and answered committee                  
                       questions                                               
                                                                               
  REP. RON LARSON                                                              
  Alaska State Legislature                                                     
  Capitol Building, Room 502                                                   
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-3878                                                             
  Position Statement:  Discussed HB 58                                         
                                                                               
  REP. KAY BROWN                                                               
  Alaska State Legislature                                                     
  Capitol Building, Room 517                                                   
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-4998                                                             
  Position Statement:  Discussed HB 58                                         
                                                                               
  COMMISSIONER DARREL REXWINKEL                                                
  Department of Revenue                                                        
  P. O. Box 110400                                                             
  Juneau, Alaska 99811-0400                                                    
  Phone:  465-2300                                                             
  Position Statement:  Explained HB 58                                         
                                                                               
  JIM BALDWIN                                                                  
  Assistant Attorney General                                                   
  Department of Law                                                            
  P. O. Box 110300                                                             
  Juneau, Alaska 99811-0300                                                    
  Phone:  465-3600                                                             
  Position Statement:  Explained HB 58                                         
                                                                               
                                                                               
  PREVIOUS ACTION                                                              
                                                                               
  BILL:  HB  90                                                                
  SHORT TITLE: 1993 REVISOR'S BILL                                             
  BILL VERSION:                                                                
  SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL                          
  TITLE: "An Act making corrective amendments to the Alaska                    
  Statutes as recommended by the revisor of statutes; and                      
  providing for an effective date."                                            
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  01/25/93       153    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/25/93       153    (H)   JUDICIARY, FINANCE                               
  02/01/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  HB  58                                                                
  SHORT TITLE: ADMINISTRATION OF BUDGET RESERVE FUND                           
  BILL VERSION:                                                                
  SPONSOR(S): FINANCE                                                          
  TITLE: "An Act relating to the budget reserve fund                           
  established under art. IX, sec. 17, Constitution of the                      
  State of Alaska."                                                            
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  01/15/93        71    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/15/93        71    (H)   JUDICIARY, FINANCE                               
  02/01/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 93-4, SIDE A                                                            
  Number 000                                                                   
                                                                               
  CHAIRMAN PORTER called the House Judiciary Committee meeting                 
  to order at 1:09 p.m. on February 1, 1993.  A quorum was                     
  present.  He noted that the first item on the agenda was the                 
  three bills which the Alaska Court System had requested that                 
  the committee introduce on its behalf.  He said that it was                  
  his intention to introduce the three bills and debate their                  
  merits when they were officially referred to the Judiciary                   
  Committee.                                                                   
                                                                               
  Number 032                                                                   
                                                                               
  REP. DAVIDSON mentioned that he had requested a report from                  
  the Legislative Research Agency addressing how other states                  
  handled the introduction of bills by the court system.  He                   
  added that it appeared that no other states allowed their                    
  court systems to introduce bills directly.  He said he had                   
  received a preliminary report from Legislative Research, but                 
  was awaiting a more comprehensive study.  He added that                      
  while he was not against the proposition at the time, he was                 
  also not fully in support.                                                   
                                                                               
  Number 058                                                                   
                                                                               
  CHAIRMAN PORTER acknowledged the arrival of Rep. Jim                         
  Nordlund, Rep. Pete Kott, and Rep. Kay Brown.  He told Rep.                  
  Davidson that he would proceed to introduce the three court                  
  system bills as committee bills, with the understanding that                 
  no action would be taken on the one bill until Rep. Davidson                 
  had received a comprehensive report from the Legislative                     
  Research Agency.                                                             
  HB 90:  1993 REVISOR'S BILL                                                  
                                                                               
  Number 081                                                                   
                                                                               
  CHAIRMAN PORTER turned the committee's attention to HB 90,                   
  an act making corrective amendments to the Alaska Statutes.                  
  He called David Dierdorff to the witness table.                              
                                                                               
  Number 091                                                                   
                                                                               
  DAVID DIERDORFF, REVISOR OF STATUTES, LEGAL SERVICES                         
  DIVISION, LEGISLATIVE AFFAIRS AGENCY, noted that HB 90 was                   
  one of an annual string of revisor's bills.  He noted that                   
  this particular bill was the shortest and least                              
  controversial revisor's bill ever.  He said that the purpose                 
  of these bills was to keep the statutes as clean as possible                 
  by annually amending errors found in them.  He explained                     
  that his office had the authority to correct the smallest                    
  errors without the approval of the legislature.  However,                    
  more substantial amendments must have legislative approval.                  
  He mentioned two land survey changes that were included in                   
  HB 90, one relating to Kachemak Bay and the other to                         
  Alexander Creek.                                                             
                                                                               
  MR. DIERDORFF noted that HB 89 was also a revisor's bill,                    
  but a different type than HB 90, in that it made more                        
  substantive changes than those made in HB 90.  He said that                  
  HB 89 was now in the House Community and Regional Affairs                    
  Committee, but would later be referred to the Judiciary                      
  Committee.                                                                   
                                                                               
  MR. DIERDORFF stated that he had asked one of the                            
  departments to try to solve a problem with Title 47, but                     
  that amendment was not yet ready to be included in HB 90.                    
  However, he hoped that the change could be included before                   
  the bill was passed by the legislature.  He noted that the                   
  Department of Law reviewed all revisor's bills before they                   
  were introduced and had no problem with the content of                       
  HB 90.                                                                       
                                                                               
  Number 191                                                                   
                                                                               
  REP. DAVIDSON said that Mr. Dierdorff's work made him think                  
  of the importance of committee minutes.  He asked if Mr.                     
  Dierdorff used committee minutes as a source for his                         
  revisor's bills, and in that light, whether he felt that the                 
  minutes ought to be detailed or not.                                         
                                                                               
  Number 200                                                                   
                                                                               
  MR. DIERDORFF said that committee minutes were helpful in                    
  ascertaining legislative intent, but he said that he had                     
  rarely had to go that far back in the record to find out                     
  what he needed to know.  He noted that committee minutes                     
  were helpful to people involved in litigation and needed to                  
  research the finer points of the law.  The revisor's bill,                   
  he added, dealt with grosser points and more obvious errors.                 
  The only time he dealt with intent was when he was faced                     
  with conflicting statutes.  Then he researched the intent of                 
  the most recent enactment to see if a statute was                            
  inadvertently not repealed or amended.                                       
                                                                               
  Number 230                                                                   
                                                                               
  REP. DAVIDSON asked Mr. Dierdorff if he relied on committee                  
  reports, which themselves relied on committee minutes.                       
                                                                               
  Number 235                                                                   
                                                                               
  MR. DIERDORFF indicated that Rep. Davidson's comment was                     
  correct.  He noted that his initial source was the Legal                     
  Services Division's own internal working files to see how a                  
  bill grew.  Those files, he said, were invaluable in the                     
  creation of HB 89.                                                           
                                                                               
  Number 249                                                                   
                                                                               
  REP. NORDLUND asked Mr. Dierdorff if sections 8 and 9 of                     
  HB 90 related to changes in federal law, or if they were                     
  merely corrections of improper citations.                                    
                                                                               
  Number 258                                                                   
                                                                               
  MR. DIERDORFF indicated that federal law had changed, not                    
  substantively, but just in terms of where it could be                        
  located in the federal statutes.                                             
                                                                               
  Number 268                                                                   
                                                                               
  REP. NORDLUND reiterated Mr. Dierdorff's point that no                       
  content change had been made.                                                
                                                                               
  Number 271                                                                   
                                                                               
  REP. PHILLIPS referred to changes in legal descriptions made                 
  in sections 6 and 7 of HB 90.  She asked, if they were found                 
  later to have substantially affected someone (for example, a                 
  property owner), would Mr. Dierdorff inform the legislature                  
  or not?                                                                      
                                                                               
  Number 282                                                                   
                                                                               
  MR. DIERDORFF said that the state owned all of the property                  
  referenced in sections 6 and 7 of HB 90.                                     
                                                                               
  Number 289                                                                   
                                                                               
  REP. PHILLIPS asked what he would do if the change were to                   
  affect private property.                                                     
                                                                               
  Number 295                                                                   
                                                                               
  MR. DIERDORFF responded that in that case, he doubted that a                 
  department would come to him and request the change.  He                     
  commented that in this case, the change was merely the                       
  correction of an error in the legal description of the land.                 
                                                                               
  Number 300                                                                   
                                                                               
  REP. GREEN asked Mr. Dierdorff about citation changes made                   
  in section 3 of HB 90.                                                       
                                                                               
  Number 316                                                                   
                                                                               
  MR. DIERDORFF said that this was called a "spanned                           
  reference," as it spanned from one part of the law to                        
  another.  He noted that section 3 made a very minor                          
  housekeeping change.  Normally, he added, these types of                     
  changes were made by the Legal Services Division and never                   
  brought before the legislature.  However, because the law in                 
  question pertained to penalties, it became part of the                       
  revisor's bill.                                                              
                                                                               
  Number 369                                                                   
                                                                               
  REP. GREEN asked if the land referenced in section 14 had                    
  undergone any title change which might present a problem.                    
                                                                               
  Number 376                                                                   
                                                                               
  MR. DIERDORFF said that to his knowledge no such problem                     
  existed.  He described a letter from the land classification                 
  officer who had requested the change.  The legal description                 
  in the statutes was incorrect, he said.  The land in                         
  question was state-owned land.  Section 14 should not affect                 
  anyone, the state or private landowners.                                     
                                                                               
  MR. DIERDORFF added that it was likely that the survey had                   
  not been completed and verified at the time the law was                      
  enacted.  He noted that the type of correction found in                      
  Section 14 was made in almost every annual revisor's bill                    
  and was necessitated by constant updating of land surveys.                   
                                                                               
  Number 405                                                                   
                                                                               
  REP. GREEN asked if the intent of new language in section 12                 
  was to exclude certain relationships between a legislator                    
  and a private individual, including one of landlords and                     
  tenants.                                                                     
                                                                               
  Number 423                                                                   
                                                                               
  MR. DIERDORFF said that a landlord/tenant relationship would                 
  have to be reported by both a legislator and a public member                 
  of the Legislative Ethics Committee.  He commented that the                  
  change in section 12 only pertained to the relationship                      
  between a public member of the Ethics Committee and a                        
  supervisor who was not a legislator.  He noted that the                      
  section of law was most relevant to the legislator/                          
  legislative employee relationship, or a relationship between                 
  a lobbyist and either a legislator or a legislative                          
  employee.                                                                    
                                                                               
  MR. DIERDORFF added that if a legislative staff member were                  
  involved in a business deal with a legislator, people should                 
  know about it.  However, the relationship between a public                   
  member of the Ethics Committee and her or his supervisor in                  
  the private sector need not be disclosed.  But if a                          
  legislator had supervisory control over a public member of                   
  the Ethics Committee, that must be reported, he said.  In                    
  summary, Mr. Dierdorff indicated that the only exclusion                     
  made in section 12 was that the five public members of the                   
  Ethics Committee did not have to report relationships that                   
  they might have with their supervisors.                                      
                                                                               
  CHAIRMAN PORTER noted the exception of a public member of                    
  the Ethics Committee who was supervised by a legislator.                     
                                                                               
  Number 454                                                                   
                                                                               
  MR. DIERDORFF said that Chairman Porter was correct, but                     
  such a person would likely not be appointed to the Ethics                    
  Committee in the first place.                                                
                                                                               
  Number 460                                                                   
                                                                               
  MR. DIERDORFF asked if the committee had received a fiscal                   
  note for HB 90.                                                              
                                                                               
  CHAIRMAN PORTER said that the committee had received the                     
  fiscal note.                                                                 
                                                                               
  MR. DIERDORFF indicated that he thought the speaker's office                 
  would likely waive HB 90 from its Finance Committee referral                 
  and send the bill straight from the Judiciary Committee to                   
  the Rules Committee.                                                         
                                                                               
  Number 467                                                                   
                                                                               
  CHAIRMAN PORTER asked how the committee wished to proceed.                   
                                                                               
  Number 468                                                                   
                                                                               
  REP. NORDLUND moved to pass HB 90 out of committee with                      
  individual recommendations.                                                  
                                                                               
  Number 469                                                                   
                                                                               
  CHAIRMAN PORTER, hearing no objections, approved the motion                  
  to move the bill out of committee with individual                            
  recommendations.                                                             
  HB 58:  ADMINISTRATION OF BUDGET RESERVE FUND                                
                                                                               
  Number 476                                                                   
                                                                               
  CHAIRMAN PORTER stated that the next agenda item was HB 58,                  
  and that four people had signed up to testify on that bill                   
  thus far.  He called Rep. Ron Larson to address the                          
  committee first.                                                             
                                                                               
  Number 480                                                                   
                                                                               
  REP. RON LARSON said that there was a need for a                             
  clarification regarding the constitutional budget reserve                    
  fund.  When a bill became law, it was open for                               
  interpretation, he noted, and that interpretation did not                    
  always correspond with legislative intent.  He stated that                   
  HB 58 sought to clarify the legislative intent behind a                      
  recent constitutional amendment adopted by the voters.                       
                                                                               
  REP. LARSON commented that approximately one year ago, when                  
  money was put into the constitutional budget reserve fund                    
  and later removed, the matter came up before the Legislative                 
  Budget and Audit Committee, which Rep. Larson chaired at                     
  that time.  A subcommittee chaired by Rep. Kay Brown was                     
  formed to address the matter of what monies should properly                  
  be deposited into the fund.  The subcommittee was asked to                   
  create a proposed bill clarifying several points, including                  
  the status of revenues collected as a result of informal                     
  conferences, and how money should be repaid to the                           
  constitutional budget reserve fund and what monies could be                  
  used for that repayment.                                                     
                                                                               
  REP. LARSON noted that HB 58 dealt with some complicated                     
  procedures.  He asked to bring Rep. Kay Brown to the table                   
  to outline provisions of the bill.  He stated that the House                 
  Finance Committee had introduced HB 58 as a result of                        
  concerns raised by the Legislative Budget and Audit                          
  Committee.                                                                   
                                                                               
  Number 543                                                                   
                                                                               
  CHAIRMAN PORTER thanked Rep. Larson for his comments and                     
  then called Rep. Kay Brown to the witness table.                             
                                                                               
  Number 546                                                                   
                                                                               
  REP. KAY BROWN said that she was a former member of the                      
  Legislative Budget and Audit Committee, and a current member                 
  of the House Finance Committee.  She stated that she saw two                 
  major policy issues addressed in HB 58.                                      
                                                                               
  REP. BROWN said the first major policy issue centered around                 
  what money should go into the constitutional budget reserve                  
  fund.  Specifically, what was meant by the term                              
  "administrative proceeding" in the constitutional amendment?                 
                                                                               
  REP. BROWN said that the second large issue was, under what                  
  conditions could money in the constitutional budget reserve                  
  fund be spent?  Specifically, what did the term "available                   
  for appropriation" mean in the constitutional amendment?                     
                                                                               
  REP. BROWN described to the committee members the history of                 
  the constitutional amendment that created the budget reserve                 
  fund.  In the 1990 legislative session, the constitutional                   
  amendment was proposed.  The legislature's intent at the                     
  time was to capture "windfall" revenues resulting from long                  
  standing oil and gas royalty and tax litigation.  The intent                 
  was to keep those litigation dollars from coming into the                    
  general fund in a "lumpy" way, causing wild variations in                    
  state revenues.  The concern was that depositing these large                 
  lump sums into the general fund would undermine efforts to                   
  control state spending.                                                      
                                                                               
  Number 545                                                                   
                                                                               
  REP. BROWN stated that at that time, there was a fiscal                      
  policy subcommittee, of which she was a member.  The                         
  subcommittee also included Rep. Swackhammer and (now) Sen.                   
  Rieger.  One of the subcommittee's recommendations was that                  
  a mechanism was needed to capture the windfalls, but to                      
  leave them in an accessible location so that they could be                   
  used to fill out gaps during years of lower revenues.                        
                                                                               
  REP. BROWN said that in addition to the disputes in                          
  litigation, there were a lot of disputed back tax claims                     
  being handled by the Department of Revenue.  Gov. Cowper's                   
  budget chief, Mary Halloran, coined the term "administrative                 
  proceeding" to describe the procedures under which the                       
  ongoing disputes were being handled.  That language ended up                 
  being enacted into law.  At that time, she noted, back taxes                 
  at the Department of Revenue exceeded $3 billion.                            
                                                                               
  REP. BROWN said that in November 1990 the question of                        
  establishing the constitutional budget reserve fund was                      
  approved by the voters.  In January 1992 a draft opinion by                  
  the attorney general's office said that its interpretation                   
  of "administrative proceeding" included only those tax cases                 
  that were in the formal adjudication stage.                                  
                                                                               
  REP. BROWN explained that at the Department of Revenue, a                    
  tax bill was sent to the taxpayer.  If the taxpayer agreed                   
  with the bill, it was paid and deposited into the general                    
  fund.  If the taxpayer did not agree with the bill, several                  
  scenarios were possible.  If the taxpayer did nothing, the                   
  department could initiate litigation against the taxpayer.                   
  Or, the taxpayer could ask for either an informal or a                       
  formal conference.  The attorney general's opinion said that                 
  only the proceeds from the settlement of those cases that                    
  were in the formal stage would be deposited into the                         
  constitutional budget reserve fund.  Money from the                          
  settlement of other cases would go into the general fund.                    
                                                                               
  REP. BROWN said that the legislative intent had been to                      
  capture all of the back taxes pending at the Department of                   
  Revenue.  In April 1992 a more formal opinion was issued by                  
  the Department of Law, reiterating that only settlement                      
  monies from those cases in the formal adjudication stage                     
  could go into the constitutional budget reserve fund.  Money                 
  was transferred out of the constitutional budget reserve                     
  fund based on the Department of Law's opinion, she noted.                    
                                                                               
  REP. BROWN said that during the first special session in                     
  1992, the House unanimously passed a letter of intent saying                 
  that all money should remain in the budget reserve fund                      
  unless appropriated, and also stating that the House                         
  intended to initiate court proceedings  to contest the                       
  attorney general's opinion.                                                  
                                                                               
  REP. BROWN stated that shortly after the first special                       
  session adjourned, she and Rep. Larson and others decided to                 
  try to work with the administration to find a compromise,                    
  instead of going to court.  They got the administration to                   
  agree that during the interim they would segregate any money                 
  that came in and was in dispute between the legislature and                  
  the administration as to whether it should go into the                       
  general fund or the budget reserve fund.                                     
                                                                               
  REP. BROWN said that a special account for this money was                    
  established within the general fund.  The account now held                   
  over $100 million, she added.  The legislature had asked the                 
  Department of Revenue for an accounting of all the back tax                  
  money that had come in:  the exact amount of money in the                    
  special account; where it came from; and what other money                    
  came in but was not put into the special account.                            
                                                                               
  REP. BROWN said that during the 1992 interim, the                            
  Legislative Budget and Audit subcommittee worked on the                      
  language for HB 58.  She acknowledged the work of John                       
  Lindback from her staff, and Assistant Attorney General Jim                  
  Baldwin in drafting the bill.  She expressed an opinion that                 
  if litigated, the legislature would win on the issue of the                  
  definition of "administrative proceeding."  But, she said,                   
  she felt it was more constructive to try to find another                     
  solution that would result in the legislature meeting its                    
  original goal of placing all of the back taxes into the                      
  budget reserve fund.                                                         
                                                                               
  REP. BROWN explained that the bill proposed that if the                      
  dispute had been in informal conference status for longer                    
  than six months, then the money would go into the                            
  constitutional budget reserve fund.  Any settlement that                     
  resulted from the informal conference procedure prior to                     
  that time would go into the general fund.  If a dispute was                  
  the subject of a formal hearing, then the settlement money                   
  would go into the constitutional budget reserve fund.  If a                  
  taxpayer simply did not pay taxes to the Department of                       
  Revenue, money received from the resulting litigation would                  
  go into the budget reserve fund.                                             
                                                                               
  Number 575                                                                   
                                                                               
  REP. BROWN said that HB 58 also addressed future taxes that                  
  would be affected by the resolution of an administrative                     
  proceeding, but had not yet been received.  So, she said, if                 
  a settlement laid out conditions that would affect future                    
  monies coming in, the bill provided that those monies would                  
  go into the general fund.  This provision was proposed by                    
  the administration, she noted.                                               
                                                                               
  REP. BROWN said that HB 58 also defined the phrase "money                    
  available for appropriation."  The phrase specifically did                   
  not include the permanent fund, the earnings reserve                         
  account, or money previously appropriated for an expenditure                 
  or to a special fund or account established by law.                          
                                                                               
  REP. BROWN called the members' attention to an amendment,                    
  which said that if the amount available for appropriation                    
  for a fiscal year was less than the amount appropriated                      
  during the previous fiscal year, an appropriation could be                   
  made from the budget reserve fund.  The amendment said that                  
  the permanent fund earnings reserve was not considered                       
  "available for appropriation."  Nor were any other special                   
  accounts or funds, including the Railbelt Energy Fund,                       
  AIDEA, AHFC, the Science and Technology fund, etc.                           
                                                                               
  REP. BROWN indicated that she believed that HB 58 and the                    
  amendment represented good policy for the state and would                    
  serve the state's needs well over the years, as the state                    
  gets into the situation of needing to access money in the                    
  constitutional budget reserve fund.  The amendment provided                  
  a mechanism whereby money could be appropriated from the                     
  constitutional budget reserve fund to get back to the                        
  previous year's level of revenues, with a majority vote.                     
                                                                               
  REP. BROWN noted that the amendment also provided that for                   
  any public purpose, 3/4 of the legislature could vote to                     
  take money from the reserve.  This, she said, was viewed as                  
  a "disaster clause" to be used if some overriding reason                     
  existed that necessitated dipping into the budget reserve                    
  fund.                                                                        
                                                                               
  REP. BROWN called the members' attention to a legal opinion                  
  issued by Tam Cook of the Legal Services Division.                           
                                                                               
  Returning to the text of HB 58, REP. BROWN said that the                     
  bill addressed the repayment of money to the constitutional                  
  budget reserve fund.  A transfer of the amount of money                      
  available on June 30 would occur by November 15.                             
                                                                               
  REP. BROWN said that interest was covered by the language in                 
  the amendment.  She also mentioned that some people were                     
  concerned that oil companies would have the ability to                       
  choose an informal versus a formal adjudication process, and                 
  effectively be able to decide into which fund the proceeds                   
  of their settlement agreement would go.  She pointed out                     
  that that was the case now, whether or not HB 58 passed.                     
                                                                               
  REP. BROWN stated that the six-month period was put into the                 
  bill to allow for resolving accounting errors or other                       
  legitimate differences of opinion that might come up                         
  regarding a taxpayer's liability.                                            
                                                                               
  Number 756                                                                   
                                                                               
  REP. PHILLIPS asked Rep. Brown to repeat what she had said                   
  about interest.                                                              
                                                                               
  Number 758                                                                   
                                                                               
  REP. BROWN called Rep. Phillips' attention to Article IX,                    
  Section 17 of the Alaska Constitution, and said that it was                  
  her belief that the language in that section included                        
  interest, although it was not specifically listed.                           
                                                                               
  Number 767                                                                   
                                                                               
  REP. PHILLIPS said she agreed with Rep. Brown that interest                  
  was included, although not specifically set forth.                           
                                                                               
  Number 770                                                                   
                                                                               
  REP. BROWN stated that an attorney said it was not necessary                 
  to specifically mention interest.  She said that she thought                 
  that the legislative intent was clear that it wanted the                     
  interest to be covered.                                                      
                                                                               
  Number 775                                                                   
                                                                               
  REP. PHILLIPS said that it would be prudent to make that                     
  intention clear.                                                             
                                                                               
  Number 777                                                                   
                                                                               
  CHAIRMAN PORTER commented that he agreed with Rep. Phillips                  
  that the word "interest" should be added to the language of                  
  HB 58.                                                                       
                                                                               
  Number 786                                                                   
                                                                               
  REP. PHILLIPS asked if "past due taxes and penalties" would                  
  refer to the Alyeska settlement from the previous year                       
  relating to the oil spill.                                                   
                                                                               
  Number 790                                                                   
                                                                               
  REP. BROWN said that settlement was not covered, due to                      
  language in the constitutional amendment itself.                             
                                                                               
  TAPE 93-4, SIDE B                                                            
  Number 000                                                                   
                                                                               
  REP. NORDLUND asked why the dividing line between settlement                 
  money going into the general fund versus settlement money                    
  going into the reserve fund was six months.                                  
                                                                               
  Number 014                                                                   
                                                                               
  REP. BROWN indicated that a line had to be drawn somewhere.                  
  If no line was drawn, she said, then settlements stemming                    
  from disputes over simple miscalculations of taxes by the                    
  Department of Revenue could also find their way into the                     
  budget reserve fund.  The legislature wanted to acknowledge                  
  that small errors that did not result in huge, protracted                    
  disputes existed.  The intent was not to capture so much of                  
  the income stream that the state was deprived of its                         
  ongoing, projected revenue stream in the state's normal                      
  course of business.  The intent was to capture settlement                    
  monies from long standing tax disputes that amounted to more                 
  than $3 billion.  The intent was not to capture every tax                    
  dollar that was 30 days past due, she added.                                 
                                                                               
  Number 054                                                                   
                                                                               
  REP. NORDLUND stated that the amount of money that could be                  
  constitutionally dedicated to a fund was being proposed to                   
  be changed statutorily.  He asked how this could be                          
  accomplished through a change in statute, rather than going                  
  back into the constitution.                                                  
                                                                               
  Number 068                                                                   
                                                                               
  REP. BROWN responded that the language in the constitution                   
  said "administrative proceeding."  Through statute, they                     
  were attempting to define that term.  She said that she                      
  understood that it was proper for the legislature to enact                   
  statutes that further defined and clarified the language in                  
  a constitutional amendment.  She added that many legislators                 
  felt that the April 1992 attorney general's opinion                          
  completely misconstrued the intent of the legislature.                       
                                                                               
  Number 098                                                                   
                                                                               
  CHAIRMAN PORTER asked Rep. Brown if both the formal and                      
  informal adjudication processes were covered under the                       
  Administrative Procedures Act.                                               
                                                                               
  Number 107                                                                   
                                                                               
  REP. BROWN indicated that both were set out in the Alaska                    
  Administrative Code, in regulations adopted by the                           
  Department of Revenue.  She said that Department of Revenue                  
  officials could more specifically answer his question.                       
                                                                               
  Number 112                                                                   
                                                                               
  CHAIRMAN PORTER said that if the informal and formal                         
  adjudication processes were under the same procedure, the                    
  argument to divide in the middle would be even more                          
  spacious.  He asked Rep. Brown if any thought had been given                 
  to drawing the line at a dollar amount instead of after a                    
  given amount of time.                                                        
                                                                               
  Number 135                                                                   
                                                                               
  REP. BROWN stated that she did not recall whether or not                     
  that had been discussed.  She suggested that Assistant                       
  Attorney General Jim Baldwin could elaborate on that point.                  
                                                                               
  Number 146                                                                   
                                                                               
  REP. JAMES commented that it made sense, from an accounting                  
  perspective, to do this instead of allowing windfalls to                     
  come into the general fund whenever they were received.                      
  Windfalls would not be desirable in certain years, she                       
  added.  She said that it might be a good idea to draw the                    
  line in a different way than the arbitrary six month line.                   
                                                                               
  Number 175                                                                   
                                                                               
  REP. BROWN said that taxpayers had 60 days in which to pay                   
  their tax bill.  If the tax was not paid at that time,                       
  taxpayers had to choose whether they wanted to go through an                 
  informal or a formal administrative proceeding.  She said                    
  that this 60-day period would be another logical place at                    
  which to draw the line.  Her initial proposal was to draw                    
  the line earlier than at six months, and her understanding                   
  was that the administration wanted the line to be drawn at a                 
  period longer than six months.                                               
                                                                               
  Number 196                                                                   
                                                                               
  REP. JAMES said that shortening the time might give the                      
  administration some incentive to speed up the collection                     
  process so they could have the money in the general fund.                    
                                                                               
  Number 212                                                                   
                                                                               
  REP. BROWN noted that now the period was between 60 days and                 
  six months was when the administration could work out                        
  collection of the taxes.                                                     
                                                                               
  Number 213                                                                   
                                                                               
  CHAIRMAN PORTER thanked Rep. Brown for addressing the                        
  committee.  He then called Department of Revenue                             
  Commissioner Rexwinkel to the witness table.                                 
                                                                               
  Number 221                                                                   
                                                                               
  DARREL REXWINKEL, COMMISSIONER OF THE DEPARTMENT OF REVENUE,                 
  addressed the committee members on HB 58.  He said SB 56 was                 
  a companion measure in the Senate.  He noted that tax                        
  returns to the state were filed by the taxpayer on a                         
  voluntary basis.  After a tax return was filed, the                          
  Department of Revenue performed a desk audit.  If the                        
  Department determined that obtaining additional tax proceeds                 
  was possible, a physical audit was performed.  Every oil and                 
  gas producer was put through a physical audit, he noted.                     
  Many times after the audit was performed, he continued, an                   
  assessment of additional taxes was made.                                     
                                                                               
  COMM. REXWINKEL commented on the complexity of oil and gas                   
  taxation.  After an assessment was made, he said, a taxpayer                 
  had 60 days in which to appeal that assessment and to                        
  request a formal or an informal conference.  He noted that                   
  the informal conference stage was an important one, where                    
  information missed by field auditors could be uncovered and                  
  discussed.  Often, he said, taxpayers would settle during                    
  the informal conference stage.  Other times, however, the                    
  informal conference was followed by a formal conference and                  
  litigation.                                                                  
                                                                               
  Number 300                                                                   
                                                                               
  COMM. REXWINKEL noted the complexity of the issues and the                   
  high dollar amounts involved in this process.  He mentioned                  
  the confusion over the term "administrative proceeding."  He                 
  noted that the attorney general's opinion indicated that a                   
  formal hearing triggered an administrative proceeding.  An                   
  informal hearing was really an extension of the audit                        
  process.  He stated the Department of Revenue had requested                  
  an opinion on the constitutional budget reserve, effective                   
  for all receipts received after July 1, 1990.  When the                      
  department received the attorney general's opinion, they                     
  wanted to go back and review the payments that had been                      
  received.  This, however, was a difficult process due to the                 
  involvement of three different departments:  Natural                         
  Resources, Revenue, and Administration.                                      
                                                                               
  Number 332                                                                   
                                                                               
  COMM. REXWINKEL said that during this investigation it was                   
  found that the Department of Natural Resources had put some                  
  money into the constitutional budget reserve fund, while the                 
  Department of Revenue had put money collected in the same                    
  settlement into the general fund.  This money had to do with                 
  the TAPS tariff, which, he noted, was determined by the                      
  Alaska Public Utilities Commission.  It was not, in his                      
  view, the result of an "administrative proceeding."  That                    
  situation was later straightened out, he noted.                              
                                                                               
  Number 345                                                                   
                                                                               
  COMM. REXWINKEL mentioned the accounting of funds which Rep.                 
  Brown had mentioned previously.  He noted that it had been                   
  done already, but he felt that it needed to be reworked.  At                 
  this time, he noted, there was about $640 million in the                     
  constitutional budget reserve fund, most of which came from                  
  royalty settlements.  "Administrative settlements" were                      
  payments received after the notice of assessment had been                    
  issued but before a formal hearing was requested, he said.                   
  There was about $210 million worth of administrative                         
  settlement proceeds now, he added.  The issue of where these                 
  administrative settlement amounts would go was an important                  
  one, he stated.  He agreed with the attorney general's                       
  opinion on what constituted an administrative proceeding and                 
  therefore what went into the constitutional budget reserve                   
  fund.  He noted that the opinion was not based on money, but                 
  on legal cases.                                                              
                                                                               
  COMM. REXWINKEL mentioned that Department of Revenue                         
  projections showed that cash flow would "go negative" in                     
  June 1994 if general fund revenues, statutory budget reserve                 
  fund revenues, and unexpended amounts in the Mental Health                   
  Trust Income Account were combined, according to low case                    
  revenue projections.  He noted that if the administrative                    
  settlement revenues were taken out, cash flow would go                       
  negative, using low case revenue scenarios, in October 1993.                 
                                                                               
  Number 399                                                                   
                                                                               
  CHAIRMAN PORTER asked if the October 1993 estimate took into                 
  account the $210 million in administrative settlements.                      
                                                                               
  Number 400                                                                   
                                                                               
  COMM. REXWINKEL said that it did.  He noted that the                         
  committee's desire to add the word "interest" in HB 58 was a                 
  good idea.  He spoke about the difference between when a                     
  formal hearing was requested and when it actually began, and                 
  said that the language in HB 58 should be tinkered with to                   
  address that difference.  He noted that HB 58 did not                        
  address the issue of refunds.  He also noted that the                        
  informal conference process was really a finalization of the                 
  audit and nothing more.  The formal hearing process was what                 
  triggered a formal, adjudicative proceeding, he said.                        
                                                                               
  Number 446                                                                   
                                                                               
  REP. JAMES asked Commissioner Rexwinkel if the audit process                 
  were a normal administrative process of the Department and                   
  not a special administrative proceeding.  She asked about                    
  percentages of these audits which resulted in additional                     
  assessments to oil companies.                                                
                                                                               
  Number 460                                                                   
                                                                               
  COMM. REXWINKEL said that production tax receipts had                        
  averaged about ten percent over the last few years, based on                 
  assessments.                                                                 
                                                                               
  Number 472                                                                   
                                                                               
  CHAIRMAN PORTER asked Rep. James to clarify her question.                    
                                                                               
  Number 476                                                                   
                                                                               
  REP. JAMES said that she had wanted to know what percentage                  
  of audits resulted in increased tax assessments.                             
                                                                               
  Number 482                                                                   
                                                                               
  COMM. REXWINKEL indicated that nearly every audit resulted                   
  in an increased assessment.                                                  
                                                                               
  Number 483                                                                   
                                                                               
  REP. JAMES said that she was trying to determine whether                     
  this was a common administrative procedure to increase an                    
  assessment through an audit.  She noted that although a                      
  taxpayer might voluntarily file a return, he or she would                    
  not volunteer to be assessed.                                                
                                                                               
  Number 488                                                                   
                                                                               
  COMM. REXWINKEL said that his department assessed additional                 
  taxes.  He added that the reason that there was such a huge                  
  amount of back taxes outstanding was because they were                       
  looking into the old windfall profits and ceiling prices and                 
  other old issues.  Today, he noted, taxpayers were paying on                 
  spot prices, so no big, new assessments were being created.                  
  They did not consider this to be a "windfall situation," he                  
  added, but just a simple instance of routine tax collection.                 
                                                                               
  Number 507                                                                   
                                                                               
  REP. PHILLIPS asked about the incident to which the                          
  commissioner had referred earlier in which the Department of                 
  Revenue and the Department of Natural Resources had                          
  disagreed about what fund a certain $60 million should go                    
  into.                                                                        
                                                                               
  Number 516                                                                   
                                                                               
  COMM. REXWINKEL responded that the money had gone into the                   
  general fund.  He noted that he never said it was $60                        
  million.  He said that Rep. Larson had spoken about $60                      
  million coming out of the constitutional budget reserve fund                 
  and Rep. Brown mentioned $60 million in some context.  He                    
  said that there was more money involved in the TAPS issue.                   
  He noted that some money had been taken out of the general                   
  fund and moved into the constitutional budget reserve fund.                  
  An audit had shown the "misapplication" of some receipts.                    
  He noted that the audit was not yet complete.                                
                                                                               
  Number 540                                                                   
                                                                               
  CHAIRMAN PORTER asked if transfers had been already made due                 
  to the auditing process.                                                     
                                                                               
  COMM. REXWINKEL replied that transfers had been made both                    
  ways, both from the general fund to the constitutional                       
  budget reserve fund, and from the reserve fund to the                        
  general fund.                                                                
                                                                               
  Number 543                                                                   
                                                                               
  REP. PHILLIPS asked if there were currently $210 million in                  
  the administrative settlement account.                                       
                                                                               
  COMM. REXWINKEL said that there was approximately that                       
  amount in the administrative settlement account, and                         
  approximately $625 to $640 million in the constitutional                     
  budget reserve account.                                                      
                                                                               
  Number 556                                                                   
                                                                               
  CHAIRMAN PORTER asked about the approximately $3 billion                     
  still in dispute.                                                            
                                                                               
  COMM. REXWINKEL said that, including interest and penalties,                 
  the amount was higher than that.                                             
                                                                               
  Number 560                                                                   
                                                                               
  CHAIRMAN PORTER asked how much of that amount would go into                  
  the budget reserve fund instead of into the administrative                   
  settlement account.                                                          
                                                                               
  Number 564                                                                   
                                                                               
  COMM. REXWINKEL said that at this time, most of that money                   
  was not in the formal hearing process, but still in the                      
  informal hearing process.  He estimated that probably less                   
  than one-fourth of the money would go into the budget                        
  reserve fund.  He noted that some of these matters went back                 
  as far as 1978 and were very difficult to settle.                            
                                                                               
  Number 577                                                                   
                                                                               
  CHAIRMAN PORTER stated that under the present situation,                     
  $2.5 billion could potentially come into the general fund.                   
                                                                               
  Number 583                                                                   
                                                                               
  COMM. REXWINKEL said that was possible.                                      
                                                                               
  CHAIRMAN PORTER asked if Commissioner Rexwinkel would call                   
  that a "windfall."                                                           
                                                                               
  COMM. REXWINKEL said that he would not refer to it as a                      
  windfall, but rather a collection of taxes due the state.                    
  He said that he did not view the collection of a debt as a                   
  windfall.                                                                    
                                                                               
  Number 593                                                                   
                                                                               
  CHAIRMAN PORTER asked why there was sometimes a delay of two                 
  years between the request for a formal hearing and the date                  
  that hearing began.                                                          
                                                                               
  Number 597                                                                   
                                                                               
  COMM. REXWINKEL said that he did not know how long these                     
  hearings were delayed.  He added that formal hearings were                   
  very expensive undertakings.                                                 
                                                                               
  Number 602                                                                   
                                                                               
  CHAIRMAN PORTER asked if he had misunderstood about the                      
  delay of up to two years in initiating a formal hearing.                     
                                                                               
  Number 603                                                                   
                                                                               
  COMM. REXWINKEL said there was often a long period of time                   
  between the request for a formal hearing and the initiation                  
  of that hearing.  Once a formal hearing was complete, he                     
  added, the department needed to do additional work to                        
  finalize the process.  He likened the formal hearing process                 
  to a trial, where much of the work was done before and after                 
  the actual "trial" occurred.                                                 
                                                                               
  Number 619                                                                   
                                                                               
  CHAIRMAN PORTER asked if the approximately $210 million in                   
  the administrative settlement account was to be expended in                  
  fiscal year 1994.                                                            
                                                                               
  Number 624                                                                   
                                                                               
  COMM. REXWINKEL noted that the account that Chairman Porter                  
  was referring to was a sub-account of the general fund.  The                 
  purpose of that sub-account was not to hold it in reserve,                   
  but simply to keep track of it in case adjustments needed to                 
  be made later.                                                               
                                                                               
  Number 635                                                                   
                                                                               
  REP. PHILLIPS asked if the department were pretty sure that                  
  the administrative settlement money was general fund money,                  
  or if there were a possibility that it would end up in the                   
  constitutional budget reserve fund.                                          
                                                                               
  Number 639                                                                   
                                                                               
  COMM. REXWINKEL replied that his department was reviewing                    
  the settlements which had come in since July 1, 1990, to                     
  make sure that the receipts were deposited into the correct                  
  fund.  Out of the $210 million, he noted, about $150 million                 
  was thought to have been collected after the six-month                       
  period.                                                                      
                                                                               
  Number 651                                                                   
                                                                               
  CHAIRMAN PORTER asked about the additional taxes assessed by                 
  the Department of Revenue as a result of audits, and the                     
  impact of HB 58 on where those additional tax revenues would                 
  go.                                                                          
                                                                               
  Number 660                                                                   
                                                                               
  COMM. REXWINKEL said that three-quarters of the back taxes                   
  owed were production taxes and one-fourth were income taxes.                 
  He commented that, currently, the amount of additional                       
  assessments were very little, due to changes in the way that                 
  taxes were calculated.                                                       
                                                                               
  Number 700                                                                   
                                                                               
  CHAIRMAN PORTER ascertained that committee members had no                    
  further questions for Commissioner Rexwinkel.  He thanked                    
  the commissioner for appearing before the committee.                         
                                                                               
  TAPE 93-5, SIDE A                                                            
  Number 000                                                                   
                                                                               
  JIM BALDWIN, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,                  
  addressed the committee next.  He thanked Rep. Brown for                     
  introducing HB 58.  He said that he and Attorney General                     
  Charlie Cole stood behind the opinion they issued last year.                 
  He explained how that opinion was formed.                                    
                                                                               
  MR. BALDWIN explained that the constitutional amendment was                  
  drafted, to a great extent, on the floor of the House of                     
  Representatives.  Substantial consideration was given to a                   
  bill that had been adopted by the House Finance Committee,                   
  but that bill was combined with another measure on the House                 
  floor to create the constitutional amendment.  Consequently,                 
  he noted, there was not a comprehensive set of minutes                       
  relating to the amendment with which to determine intent.                    
  He said that determining intent for a constitutional                         
  amendment was different than determining intent for a                        
  statute.  Because constitutional amendments appeared on the                  
  ballot, the intent of the voters and the intent of the                       
  drafters of the amendment must all be taken into                             
  consideration.                                                               
                                                                               
  Number 100                                                                   
                                                                               
  MR. BALDWIN stated that the Department of Law attempted to                   
  consider the intent of the legislature and the voters when                   
  the opinion was drafted.  Statements made by the drafters of                 
  the amendment now, after adoption of the amendment, would                    
  not be considered relevant by a court, which would look at                   
  pre-enactment statements of intent.  He said the Department                  
  of Law had attempted to clarify the intent of the amendment                  
  through a legal opinion.  Another way to clarify an                          
  amendment was for the legislature to pass further                            
  legislation.  The courts would use a new statute as evidence                 
  of an attempt to clarify an ambiguous provision.                             
                                                                               
  MR. BALDWIN noted that by passing clarifying legislation,                    
  the legislature would be acting more like a court than like                  
  a legislative body.  The legislature's opinion would be                      
  weighed just like a judge's opinion or the attorney                          
  general's opinion.                                                           
                                                                               
  Number 130                                                                   
                                                                               
  MR. BALDWIN said that the Department of Law saw no rationale                 
  for HB 58's imposition of an arbitrary six-month time limit.                 
  They saw it as an unacceptable compromise.  He said other                    
  provisions of HB 58 were very helpful.  As for the six-month                 
  time limit, he urged the committee to stick with the                         
  structure set out in the attorney general's opinion - that                   
  "administrative proceeding" did not begin until a formal                     
  conference was requested.  He said that he agreed with Rep.                  
  Brown that one deadline was the same as another deadline in                  
  terms of strategy when dealing with taxpayers.  However, he                  
  noted that setting out a particular time period, at which                    
  revenues would cease to enter one pool of money and begin to                 
  enter another, would give a strategic advantage to the                       
  "other side."                                                                
                                                                               
  MR. BALDWIN stated that he felt it was unwise to have a set                  
  date in time at which funds would be channeled into a                        
  particular pot of money.  He noted that usually what                         
  triggered a request for a formal conference was a hard and                   
  fast determination of dollar and time costs.  He added that                  
  the Department of Law never based decisions on where the                     
  money would go, but just worked toward getting those dollars                 
  in the first place.  They did not want to have to look at                    
  where the money would be going.                                              
                                                                               
  MR. BALDWIN said that a very valuable provision of HB 58                     
  could be found on page 2, lines 3-7.  He stated that this                    
  provision clarified what future settlements or outcomes of                   
  litigation would not go into the constitutional budget                       
  reserve fund.                                                                
                                                                               
  Number 210                                                                   
                                                                               
  MR. BALDWIN then called the committee members' attention to                  
  page 2, lines 8-13, of HB 58.  He noted his concern over the                 
  wording on line 12.  He felt that the language could be very                 
  broadly interpreted.  He said this particular provision of                   
  HB 58 sought to clarify that the trigger for use of the                      
  budget reserve funds would come before the state had                         
  exhausted every conceivable pot of money it held.  However,                  
  he noted that he still felt that the language in the bill                    
  was imprecise and open to interpretation.                                    
                                                                               
  Number 293                                                                   
                                                                               
  MR. BALDWIN noted another concern that he had with HB 58,                    
  located on page 2, lines 16-21.  He said the amendment held                  
  that money taken out of the budget reserve fund and used for                 
  government operations had to be replaced the following year.                 
  He said HB 58 provided for that replacement through a device                 
  known as a "transfer."  He noted that this amounted to the                   
  legislature giving Commissioner Rexwinkel the power to                       
  select money and put it into the budget reserve fund without                 
  going through the appropriation process.  He said he was                     
  uncomfortable with this provision because the legislature                    
  wielded the power of appropriation.  He stated that this                     
  provision could deprive future legislatures of the power to                  
  appropriate funds to the budget reserve fund.                                
                                                                               
  Number 343                                                                   
                                                                               
  REP. NORDLUND asked if Mr. Baldwin would agree that a lot of                 
  ambiguity existed in the constitution in terms of what an                    
  administrative proceeding was.  He added that HB 58                          
  attempted to provide some definition.  He noted that he was                  
  not sold on the arbitrary six-month dividing line.  He asked                 
  if Mr. Baldwin had a counter-proposal to offer.                              
                                                                               
  Number 355                                                                   
                                                                               
  MR. BALDWIN stated that he did not have a counter-proposal.                  
  He indicated that Attorney General Cole was more skeptical                   
  than he about the legislature's ability to clarify a                         
  constitutional provision.  He cited language in the                          
  constitution and said that the Department of Law's view was                  
  that the language referred to litigation and situations                      
  similar to litigation.  He reiterated Commissioner                           
  Rexwinkel's view that the informal conference stage                          
  consisted solely of wrapping up audit issues and defining                    
  further issues.  He noted that the Department of Law, in its                 
  legal opinion, was attempting to preserve the legislature's                  
  powers and harmonize those powers with the provisions in the                 
  constitutional amendment.  He said the legislature had the                   
  sole power to appropriate funds, and the amendment deprived                  
  the legislature of some of that power.                                       
                                                                               
  Number 397                                                                   
                                                                               
  REP. NORDLUND stated that he appreciated the Department of                   
  Law's attempts to preserve the legislature's powers, but he                  
  felt that this would continue to be a problem and ought to                   
  be solved through legislation.                                               
                                                                               
  Number 400                                                                   
                                                                               
  MR. BALDWIN indicated that he agreed with Rep. Nordlund.  He                 
  added that, out of the four points about HB 58 discussed, he                 
  felt that two of them were excellent, one of them needed                     
  more work, and he did not agree with the fourth point.  He                   
  noted his willingness to work with the legislature on a                      
  compromise.                                                                  
                                                                               
  CHAIRMAN PORTER commented that, as a voter, he had been                      
  under the impression that the bulk of the money that was                     
  still in dispute would go into the budget reserve fund                       
  instead of into the general fund.  Under the Department of                   
  Law's interpretation, however, it seemed like the bulk of                    
  the disputed funds would end up back in the general fund.                    
  In his opinion, that violated the intent of the                              
  constitutional amendment.                                                    
                                                                               
  Number 424                                                                   
                                                                               
  MR. BALDWIN said that the legal opinion did not look at the                  
  money, but rather at the text of the amendment.  They did                    
  not look at the issue of whether or not the state would have                 
  general fund dollars or less-accessible budget reserve fund                  
  dollars.  He stated that he stood behind the legal opinion,                  
  but added that the amendment itself was ambiguous and open                   
  to interpretation.                                                           
                                                                               
  Number 464                                                                   
                                                                               
  CHAIRMAN PORTER asked if there would have been a different                   
  result if numbers had been addressed, instead of days, when                  
  determining the cut-off point for funds.                                     
                                                                               
  Number 475                                                                   
                                                                               
  MR. BALDWIN said that if this had been addressed in the body                 
  of the amendment itself, that would have been better, but it                 
  was difficult to speculate.  He said that the court system                   
  said that the legislature's interpretations in the form of                   
  statutes would be given great weight if they were not                        
  clearly erroneous.  He cautioned the committee to not                        
  radically depart from the wording of the constitutional                      
  amendment.  He felt that the definition of terms used in the                 
  amendment would be a more defensible action.                                 
                                                                               
  Number 489                                                                   
                                                                               
  CHAIRMAN PORTER asked if the formal and informal conference                  
  procedures were internal Department of Revenue policy, or                    
  part of the Administrative Procedures Act.                                   
                                                                               
  MR. BALDWIN said that those tax procedures were not covered                  
  by the general Administrative Procedures Act.                                
                                                                               
  CHAIRMAN PORTER asked Mr. Baldwin if he would characterize                   
  the informal and formal conference process as being part of                  
  the same procedure.                                                          
                                                                               
  Number 505                                                                   
                                                                               
  MR. BALDWIN commented that they were two separate processes.                 
  The informal conference procedure was more or less a wrap-up                 
  of the audit process, he noted.  Once the taxpayer crossed                   
  the line into the formal process, he said, rights became an                  
  issue and were adjudicated.                                                  
                                                                               
  Number 520                                                                   
                                                                               
  REP. JAMES asked what "administrative proceeding" would mean                 
  if money were not involved.                                                  
                                                                               
  Number 538                                                                   
                                                                               
  MR. BALDWIN said that in their opinion, they sought to                       
  define "administrative proceeding," starting with the                        
  dictionary.  The definitions that they gleaned told them                     
  that proceeding meant something similar to litigation.  He                   
  said that to answer Rep. James' question, he would need her                  
  to provide more information.                                                 
                                                                               
  Number 555                                                                   
                                                                               
  REP. JAMES said that she was referring to any complaint that                 
  a person would have against an agency.  She cited an example                 
  of a member of the public having a dispute with a clerical                   
  worker in a state agency, and the matter perhaps being                       
  referred to a supervisor, and later to the commissioner of                   
  the department.  Where in that process, she asked, would Mr.                 
  Baldwin call it an "administrative proceeding?"                              
                                                                               
  Number 582                                                                   
                                                                               
  MR. BALDWIN said that he could not give her a legal answer                   
  to her question.  He noted that there were many different                    
  administrative procedures in state law, including the                        
  Administrative Procedures Act.  Often, departments had their                 
  own procedures, however.  He said that the legal opinion was                 
  tailored to the procedures used by the Department of                         
  Revenue.                                                                     
                                                                               
  Number 600                                                                   
                                                                               
  REP. JAMES said that she was trying to address what the                      
  general public would consider an administrative proceeding.                  
                                                                               
  Number 604                                                                   
                                                                               
  CHAIRMAN PORTER determined that the committee had no further                 
  questions for Mr. Baldwin.  He noted that he felt it would                   
  be premature to take a vote.  He invited Rep. Brown and Rep.                 
  Larson to address the committee again.                                       
                                                                               
  Number 612                                                                   
                                                                               
  REP. LARSON mentioned a letter that he had received from the                 
  administration which stated:                                                 
                                                                               
       "As a follow-up to our meeting this morning, the                        
  Administration has agreed that the administrative                            
  settlements which the Attorney General previously identified                 
  as erroneously deposited in the constitutional budget                        
  reserve fund will be placed in a separate account."                          
                                                                               
  REP. LARSON added that the letter also stated that the                       
  action was taken with the following understanding:                           
                                                                               
       "The Administration will access these funds should the                  
  Commissioner of Revenue determine it is necessary to do so                   
  because the cash available in the general fund is                            
  insufficient to meet the state's obligations."                               
                                                                               
       and (2) "The Legislative Budget and Audit Committee and                 
  Administration will work on legislation during the interim                   
  for introduction next session which will clarify                             
  implementation of the constitutional amendment."                             
                                                                               
  REP. LARSON said he assumed from the letter that the money                   
  in dispute was in a separate account.  He said he would like                 
  to know if that were true or not.  He would also like to                     
  know that, if it were not in a separate account, when there                  
  had been insufficient funds to meet the state's needs,                       
  therefore requiring that the money be taken out.                             
                                                                               
  Number 634                                                                   
                                                                               
  CHAIRMAN PORTER said that if he recalled correctly, the                      
  commissioner of Revenue said that the money referred to in                   
  the amendment was separately accounted for.  He added that                   
  the commissioner had indicated that the $210 million was                     
  scheduled, to a certain extent, to be spent in fiscal year                   
  1994.  He added that the statutory reserve amount at the end                 
  of fiscal year 1993 was $27 million.  If the $210 million                    
  was a part of that total, he noted, it had been depleted by                  
  a considerable amount.                                                       
                                                                               
  Number 649                                                                   
                                                                               
  REP. LARSON said that they were dealing with a moving                        
  target.  He stated that on August 27, 1992, the Legislative                  
  Finance Division showed adjustments to fiscal year 1992                      
  revenues as $140.6 million, which included a $61 million                     
  reversal of deposits in the constitutional budget reserve                    
  fund.  On December 3, 1992, the constitutional budget                        
  reserve fund had $620.5 million, which included the                          
  adjustments by the Department of Revenue in line with the                    
  attorney general's opinion.                                                  
                                                                               
  Number 661                                                                   
                                                                               
  REP. BROWN said that, in response to her request for an                      
  accounting of how much money was in the settlement account,                  
  on December 2, 1992, she was told that there was $103+                       
  million in the account as of October 31, 1992.  That amount                  
  included the $94.3 million in the account plus $8.9 million                  
  in interest.  She added that she was now very confused to                    
  learn today that the amount had grown to $210 million.  She                  
  reiterated the need for a good accounting of what is going                   
  on with the money.                                                           
                                                                               
  REP. BROWN said she agreed with Commissioner Rexwinkel's                     
  comments about the language at the top of page 2 in HB 58.                   
  She said she recommended that the word "begun" on line 2 be                  
  changed to "been requested" so that the request was the                      
  triggering point.                                                            
                                                                               
  REP. BROWN indicated that she felt that the legislature's                    
  intent was clear with regard to the term "administrative                     
  proceeding."  She stated that she was shocked when the                       
  attorney general's opinion came out, and she had asked for                   
  Tam Cook's opinion on the attorney general's interpretation.                 
  She said that she would provide that opinion to the                          
  committee.  She said Ms. Cook's opinion differed from that                   
  of the attorney general.  She noted that the term                            
  "administrative proceeding" was already in Title 43 of the                   
  Alaska statutes.                                                             
                                                                               
  Number 720                                                                   
                                                                               
  REP. BROWN stated that her understanding was that HB 58                      
  would not affect the current budget, nor the monies in the                   
  administrative settlement fund.  She noted that HB 58 was                    
  not retroactive.  She said she understood that the                           
  legislature could, if it wished to, do something about the                   
  money which was now in the general fund.  However, she saw                   
  that as a separate issue.                                                    
                                                                               
  CHAIRMAN PORTER asked Rep. Larson if he thought HB 58 could                  
  be amended so as to allow for the resolution of differences                  
  between the legislature and the administration.                              
                                                                               
  REP. LARSON replied that he thought it was possible.                         
                                                                               
  Number 749                                                                   
                                                                               
  MR. BALDWIN said that he did not have the authority to                       
  compromise on the issue of where the dividing line stood.                    
  He suggested that the sponsor discuss the issue with the                     
  attorney general.  He said the legislature had the authority                 
  to further define the constitutional amendment.  He said he                  
  could not promise that the policy issue could be resolved,                   
  however.                                                                     
                                                                               
  Number 761                                                                   
                                                                               
  CHAIRMAN PORTER said that it appeared, from a letter from                    
  Shelby Stastny of the Office of Management and Budget, that                  
  the original intent was to try to work out an agreement                      
  between the administration and the legislature as to how to                  
  interpret the constitutional amendment.  He suggested that                   
  the committee delay action on HB 58 until Rep. Larson and                    
  his designee(s) participated in negotiations with the                        
  attorney general to try to come up with acceptable language.                 
                                                                               
  Number 780                                                                   
                                                                               
  REP. LARSON indicated that he, Mr. Baldwin, Attorney General                 
  Cole, and a member of the Judiciary Committee could discuss                  
  language for HB 58.                                                          
                                                                               
  Number 785                                                                   
                                                                               
  CHAIRMAN PORTER said that either he or Vice Chair James                      
  would serve on that "subcommittee."  He invited any other                    
  Judiciary Committee members who wanted to participate in the                 
  negotiations as well.  Without objection, he told Rep.                       
  Larson to set up a meeting on the issue.  He added that he                   
  would reschedule HB 58 when the subcommittee came up with                    
  acceptable language.                                                         
                                                                               
  REP. NORDLUND asked that the subcommittee clarify whether or                 
  not HB 58 was retroactive.                                                   
                                                                               
  REP. BROWN noted that if the bill were to be retroactive,                    
  that would have to be specifically spelled out in the                        
  language of the bill.                                                        
                                                                               
  Number 811                                                                   
                                                                               
  REP. DAVIDSON asked if Rep. Brown and Rep. Larson preferred                  
  that HB 58 be retroactive.                                                   
                                                                               
  Number 812                                                                   
                                                                               
  REP. LARSON said that his preference was to not make the                     
  bill retroactive.                                                            
                                                                               
  Number 821                                                                   
                                                                               
  CHAIRMAN PORTER thanked Rep. Brown and Rep. Larson for                       
  appearing before the committee.  He called the committee                     
  members' attention to three additional bills which the court                 
  system was asking the Judiciary Committee to introduce on                    
  its behalf.  He asked committee members to look over the                     
  bills and said they would discuss their introduction the                     
  following week.  He stated that he and Senator Taylor                        
  intended to appoint a joint subcommittee to address the                      
  recommendations of the Sentencing Commission.                                
                                                                               
  Number 847                                                                   
                                                                               
  REP. NORDLUND commented that there might already be bills                    
  introduced that could be amended to incorporate some of the                  
  Sentencing Commission recommendations.                                       
                                                                               
  Number 858                                                                   
                                                                               
  REP. PORTER indicated that he had hoped to have Terry Cramer                 
  of the Legal Services Division brief the committee on the                    
  new ethics law prior to holding hearings on the public                       
  members of the Ethics committee, but her absence indicated                   
  that she had not yet finished briefing members of the Senate                 
  Judiciary Committee.  He added that he would try to contact                  
  her and pass on any specific, important points that she                      
  might have to the members via memorandum.                                    
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  CHAIRMAN PORTER adjourned the meeting at 3:22 p.m.                           

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