Legislature(1993 - 1994)
04/03/1993 10:00 AM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 3, 1993
10:00 a.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Pete Kott
Rep. Gail Phillips
Rep. Joe Green
Rep. Jim Nordlund
Rep. Cliff Davidson
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HB 18: "An Act relating to police protection service
areas in municipalities."
COMMUNITY AND REGIONAL AFFAIRS COMMITTEE
SUBSTITUTE PASSED OUT WITH NO RECOMMENDATION
*HB 254: "An Act relating to open meetings of governmental
bodies; and amending Rule 82 of the Alaska Rules
of Civil Procedure."
JUDICIARY COMMITTEE SUBSTITUTE PASSED OUT WITH A
DO PASS RECOMMENDATION
HB 167: "An Act relating to air quality control and the
prevention, abatement, and control of air
pollution; relating to civil and criminal
penalties, damages, and other remedies for air
quality control violations; clarifying the
definition of `hazardous substance' to include
releases and threatened releases to the
atmosphere; amending the lien provisions relating
to the oil and hazardous substance release
response fund; relating to inspection and
enforcement powers of the Department of
Environmental Conservation; and providing for an
effective date."
NOT HEARD IN COMMITTEE
* First public hearing.
WITNESS REGISTER
REP. CON BUNDE
Alaska State Legislature
Capitol Building, Room 112
Juneau, Alaska 99801-1182
Phone: 465-4843
Position Statement: Prime sponsor of HB 18
RICHARD BURTON, Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Phone: 465-4322
Position Statement: Opposed HB 18
REP. JOHN DAVIES
Alaska State Legislature
Court Building, Room 604
Juneau, Alaska 99801
Phone: 465-4457
Position Statement: Opposed HB 18, Opposed HB 254, Prime
Sponsor of HB 37
REP. AL VEZEY
Alaska State Legislature
Capitol Building, Room 102
Juneau, Alaska 99801-1182
Phone: 465-3719
Position Statement: Prime Sponsor of HB 254
KENT SWISHER, Executive Director
Alaska Municipal League
217-2nd Street
Juneau, Alaska 99801
Phone: 586-1325
Position Statement: Supported HB 254
LARRY PERSILY, Managing Editor
Juneau Empire
3100 Channel Drive
Juneau, Alaska 99801
Phone: 586-8025
Position Statement: Opposed HB 254
WENDY REDMAN, Vice President
University Relations
University of Alaska
910 Yukon Drive
Fairbanks, Alaska 99775-2388
Phone: 474-7582
Position Statement: Supported HB 254
ROSALEE WALKER, President
Alaska Municipal League
217-2nd Street
Juneau, Alaska 99801
Phone: 586-1325
Position Statement: Supported HB 254
PREVIOUS ACTION
BILL: HB 18
SHORT TITLE: FEES FOR POLICE PROTECTION BY STATE
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) BUNDE
TITLE: "An Act relating to police protection service areas
in municipalities."
JRN-DATE JRN-PG ACTION
01/04/93 29 (H) PREFILE RELEASED
01/11/93 29 (H) READ THE FIRST TIME/REFERRAL(S)
01/11/93 29 (H) CRA, JUDICIARY, FINANCE
03/18/93 (H) CRA AT 01:00 PM CAPITOL 124
03/19/93 (H) CRA AT 01:30 PM CAPITOL 124
03/19/93 (H) MINUTE(CRA)
03/22/93 727 (H) CRA RPT CS(CRA) 2DP 2DNP 3NR
03/22/93 727 (H) DP: TOOHEY, BUNDE
03/22/93 727 (H) DNP: WILLIS, DAVIES
03/22/93 727 (H) NR: SANDERS, OLBERG, WILLIAMS
03/22/93 727 (H) -FISCAL NOTE (DPS) 3/22/93
03/25/93 (H) MINUTE(CRA)
04/03/93 (H) JUD AT 10:00 AM CAPITOL 120
BILL: HB 254
SHORT TITLE: OPEN MEETING ACT
BILL VERSION:
SPONSOR(S): STATE AFFAIRS
TITLE: "An Act relating to open meetings of governmental
bodies; and amending Rule 82 of the Alaska Rules of Civil
Procedure."
JRN-DATE JRN-PG ACTION
03/26/93 793 (H) READ THE FIRST TIME/REFERRAL(S)
03/26/93 794 (H) JUDICIARY
03/30/93 (H) STA AT 08:00 AM CAPITOL 102
03/30/93 (H) MINUTE(STA)
04/03/93 (H) JUD AT 10:00 AM CAPITOL 120
BILL: HB 167
SHORT TITLE: AIR QUALITY CONTROL PROGRAM
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) HANLEY
TITLE: "An Act relating to air quality control and the
prevention, abatement, and control of air pollution;
relating to civil and criminal penalties, damages, and other
remedies for air quality control violations; clarifying the
definition of `hazardous substance' to include releases and
threatened releases to the atmosphere; amending the lien
provisions relating to the oil and hazardous substance
release response fund; relating to inspection and
enforcement powers of the Department of Environmental
Conservation; and providing for an effective date."
JRN-DATE JRN-PG ACTION
02/19/93 390 (H) READ THE FIRST TIME -
REFERRAL(S)
02/19/93 390 (H) JUDICIARY, FINANCE
03/05/93 (H) JUD AT 01:00 PM CAPITOL 120
03/05/93 (H) MINUTE(JUD)
03/10/93 (H) JUD AT 01:00 PM CAPITOL 120
03/10/93 (H) MINUTE(JUD)
04/01/93 (H) JUD AT 07:00 PM CAPITOL 120
04/01/93 (H) MINUTE(JUD)
04/01/93 (H) MINUTE(JUD)
04/03/93 (H) JUD AT 10:00 AM CAPITOL 120
ACTION NARRATIVE
TAPE 93-51, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary Standing
Committee meeting to order at 10:17 a.m. on April 3, 1993.
A quorum was present.
HB 18: FEES FOR POLICE PROTECTION BY STATE
CHAIRMAN PORTER announced that the committee would take up
HB 18 first.
Number 021
REP. CON BUNDE, PRIME SPONSOR OF HB 18, stated that HB 18
provided a mechanism for local communities without police
protection or without a desired level of police protection
to form service areas and obtain the desired level of police
protection. Under HB 18, the service areas would be
provided with a cost estimate by the Department of Public
Safety (DPS). The residents of a certain area would then
vote to accept the costs before a service area was formed.
At that point, DPS would begin providing services, and
residents of the service area would be assessed fees.
REP. BUNDE stressed that residents of a service area would
determine the level of police protection provided to them.
He stated his intention that all areas of the state have
access to a certain level of police protection, or have the
ability to augment existing services. He expressed his
opinion that the fiscal note provided by DPS was inaccurate,
because it was too early to determine the size and magnitude
of the service areas residents would want. He also noted
the pressing need for HB 18 because of anticipated budget
cuts at DPS, including a 39% reduction of force in the
Anchorage state troopers post.
Number 151
COMMISSIONER RICHARD BURTON, from DPS, joined the committee
to testify in opposition to HB 18. He stated that the
fiscal note provided by his department was accurate, based
on estimates for a force provided on the Anchorage Hillside.
He stated that DPS was not providing an adequate level of
service for the Hillside, as well as other areas of Alaska,
but commented that HB 18 was not the solution in the
administration's point of view. He stated that it was bad
public policy for a portion of a home-rule, first-class
municipality like Anchorage to refuse to pay for local
service, but to try and compel the state to provide trooper
service at a lower cost. He also noted two flaws in the
bill, the first allowing residents in an area already with
police service the opportunity to contract for state trooper
service, the second being the ambiguity of language
involving the level of service determinations.
Number 258
REP. JEANNETTE JAMES asked if HB 18 might also be used to
provide state trooper protection for the Healy area in the
Denali Borough.
Number 266
COMMISSIONER BURTON stated that Healy was an unincorporated
area, with no structured government. He asked rhetorically
who would sign the checks, collect the fees and assess the
contract level in such an area.
REP. JAMES asked if HB 18 might open the door to providing
such service in the future.
(CHAIRMAN PORTER noted the arrival of Rep. Kott and Rep.
Davidson at 10:22 a.m.)
COMMISSIONER BURTON stated that under the Alaska
Constitution, the legislature could sit as an assembly for
unincorporated boroughs, which he stated that the body ought
to do, in his opinion.
Number 296
REP. DAVIDSON asked if HB 18 was an attempt to allow
Hillside residents to continue to receive police protection
from DPS for free.
Number 307
COMMISSIONER BURTON stated that he could not say that. He
noted that the state could do the work cheaper than the City
of Anchorage had estimated that an expansion in service
would cost.
(CHAIRMAN PORTER noted the arrival of Rep. Nordlund at 10:24
a.m.)
Number 314
REP. DAVIDSON asked if a Village Public Safety Officer
(VPSO) styled program might be an option for areas like the
Anchorage Hillside.
Number 323
COMMISSIONER BURTON stated that the VPSO program would not
apply to such an area. Besides that, in an unincorporated
area, the barriers to collecting money for the service would
still exist.
Number 330
REP. PHILLIPS asked for a brief history of the Hillside
police dispute for those who did not live in the Anchorage
area.
Number 338
COMMISSIONER BURTON outlined the history of the three areas
within the state with unified governments (combined
municipality and borough), and noted that some had claimed
the right in their charters to establish police service
unilaterally, and then assess taxes. In the case of
Anchorage, when the governments were combined, no such claim
was made to establish police services and assess taxes, and
that it has never been done since.
Number 374
CHAIRMAN PORTER, a former police chief in Anchorage, further
explained that when the City of Anchorage and the borough
combined, the city provided services within the city limits
that were not provided in certain areas of the borough. He
explained that the charter was written so that some areas
were to be set aside as separate service areas and that the
city could provide service if the entire municipality voted
to do so, and if the service area agreed. He noted that the
issue of police service in the Hillside and Girdwood service
areas had gone to the voters at least three or four times,
and had passed the borough, but not the service areas. Now,
he said, the latest sales tax provision would provide for
police service districts outside the Hillside, which meant
that for Hillside residents to benefit from the area wide
tax, they would have to vote in favor of the police service.
Number 415
REP. DAVIDSON asked why the municipality always voted in
favor of police service but the Hillside did not.
Number 424
CHAIRMAN PORTER stated that one reason was the "home-car"
program, in which Anchorage Police Department (APD) officers
were allowed to take patrol vehicles home, and that the
Hillside benefited because many APD officers lived there.
Number 450
REP. PHILLIPS stated that in her experience with municipal
governments, she had noticed that when a referendum was
taken on an issue involving permission, it usually passed
easily, but when money was on the line, it did not.
Number 459
COMMISSIONER BURTON had a final comment. He noted that DPS
at one time had eleven patrol contracts in a number of
Alaska cities, and that the arrangement proved to be
inoperable. He stated that under this arrangement, troopers
were being called before local authorities and told they
were not expected to enforce certain laws against certain
residents. He stated that DPS simply could not serve two
masters.
Number 492
REP. DAVIDSON stated that it appeared to him that HB 18 was
addressing a local problem that should be addressed locally.
He said that with the budget difficulty facing DPS, he could
not support HB 18.
Number 504
REP. JOHN DAVIES joined the committee to oppose HB 18. He
said that HB 18 appeared to be unconstitutional under
Article Ten, Section Eight of the Alaska Constitution,
because that article prohibited the establishment of a
service area if the area in question could have service
provided through the annexation of an existing service area,
or incorporation into a city.
Number 521
REP. BUNDE rejoined the committee to clarify some points.
He noted that HB 18 did not address just the Hillside, but
that Healy, Wasilla, Juneau and other areas had similar
problems. He noted that Girdwood was part of the
Municipality of Anchorage, and had adopted only the services
it wanted. Consequently, the area did not pay for many
municipal services, including police services.
Number 587
REP. DAVIDSON asked about the apparent constitutionality
issue raised by Rep. Davies, and why a similar contract
offer could not be made to the municipality.
REP. BUNDE stated that HB 18 would provide residents with
the greatest possible latitude to contract with whomever
they wanted. He cited an Alaska Municipal League (AML)
study on government roles. He explained the AML's support
of a change to Title 29 to allow such contracts, and said
that he did not see a problem in making such a change.
Number 625
REP. DAVIDSON asked if a statute change was needed for the
Hillside to contract with the municipality.
REP. BUNDE stated that it would not be needed. REP.
PHILLIPS concurred.
Number 632
REP. DAVIDSON moved to hold HB 18 in committee in order to
determine if there was a need from other areas in the state.
REP. PHILLIPS objected.
THE MOTION TO TABLE HB 18 failed by a 4-3 vote with Reps.
Davidson, Nordlund and Porter voting to table and Reps.
Phillips, Kott, Green and James voting not to table.
Number 647
REP. PHILLIPS moved passage of HB 18 from the committee.
HOUSE BILL 18 was PASSED OUT OF COMMITTEE by a 4-3 vote with
Reps. Green, Kott, Phillips and James voting yes and Reps.
Davidson, Nordlund and Porter voting no.
HB 254: OPEN MEETING ACT
Number 653
CHAIRMAN PORTER read the title of HB 254 and called for a
sponsor statement.
Number 663
REP. DAVIDSON asked if HB 254 was properly before the
committee under the Uniform Rules of the Legislature.
Number 669
CHAIRMAN PORTER stated that it had been. He said that he
had notified the House Rules Committee, under Rule 23, the
previous Saturday that he wanted to hear HB 254; he had
posted the meeting notice on Saturday; and he had made an
announcement on the floor on Monday. He stated that he was
confident that the five-day rule had been satisfied. He
also stated that even though the information had not been
turned into the Chief Clerk by the previous Wednesday, there
was no prohibition on revising a previously submitted
schedule.
Number 692
REP. DAVIDSON noted the existence of a house bill with a
lower number also dealing with the Open Meetings Act, and
stated that it was customary to consider both bills.
CHAIRMAN PORTER stated that a hearing on the bill to which
Rep. Davidson referred (HB 37) had not been scheduled, that
the bill was not before the Judiciary Committee, but that he
was sure that there would be some discussion of the bill, if
only for purposes of comparison to HB 254.
Number 714
REP. NORDLUND called the committee's attention to an opinion
from Division of Legal Services attorney Tam Cook stating
the chairman's intent to hear HB 254 had indeed met the
five-day rule, but not the previous Thursday rule. He
stated that there was a need to modify the Thursday rule.
Number 732
CHAIRMAN PORTER stated that the Thursday rule was in
existence for the benefit of the Chief Clerk's office, and
that the five-day rule was the driving rule behind most
notice requirements.
Number 744
REP. DAVIDSON stated that it was not his intent to prevent
the hearing from occurring, but he wanted to make sure that
the committee was following the Open Meetings Act (OMA)
which it was considering modifying.
Number 756
REP. PHILLIPS referred back to the opinion issued by Tam
Cook with respect to the lack of consistency on compliance
with the rules and agreed with Rep. Nordlund that the
Uniform Rules should be amended in some way.
Number 769
REP. AL VEZEY, PRIME SPONSOR OF HB 254, explained that under
the Rules Committee's current interpretation, in the event
of a Saturday meeting, the five-day rule was satisfied with
a Monday notice. He stated that the number of lawsuits
filed over alleged Open Meetings Act violations was the
driving force behind HB 254. He stated that in order for
business to go on as it should, there was a need for a
single standard for all governments to follow, and that any
governmental body could adopt more stringent standards if it
wished. He stated that HB 254 also attempted to reduce the
number of frivolous lawsuits filed, and that it also
required those who would file suits to justify their
actions. Among other changes, HB 254 eliminated the
requirement that all agency materials under consideration be
provided at teleconference sites, because the omission of
any material would provide grounds for an OMA violation, and
also allowed some votes under teleconference to be taken by
voice.
TAPE 93-51, SIDE B
Number 000
REP. VEZEY continued his testimony on HB 254. He outlined
the exemptions for various public bodies with respect to
personnel matters. He also outlined the changes in the
requirements for the voiding of an act made in violation of
the OMA. Under the old OMA, any act taken in violation was
automatically voided. Under HB 254, any act could be voided
by an order of the court. He also explained that for any
person filing an OMA court case, each party would pay its
own legal costs. He stated that this would help to prevent
frivolous lawsuits. Finally, he explained that the
definition of a meeting was two or more persons, but not
less than a quorum of a body.
Number 076
REP. PHILLIPS stated that she felt Sections 2 and 3 on page
2, dealing with personnel matters, were duplicative.
Number 096
REP. VEZEY stated that he kept Sections 2 and 3 much the
same out of respect for the original drafters of the OMA.
He also stated that he saw a difference between judging the
character of a candidate and the judging of professional
qualifications.
Number 125
REP. PHILLIPS stated that she still found Sections 2 and 3
duplicative but would not object to their inclusion.
Number 129
REP. DAVIDSON asked to hear the reasoning behind having
those who would file an OMA suit bear their own court costs.
Number 138
REP. VEZEY stated that all a governing body would have to do
after a successful OMA lawsuit would be to hold an OMA
friendly meeting and pass the same act again. He noted that
most governmental bodies were easy targets for the OMA, even
for some inconsequential reasons. He stated that HB 254
would make filing and defending suits more equitable.
Number 155
REP. DAVIDSON asked rhetorically why not just have a more
careful, open government to start with.
Number 164
REP. VEZEY stated that he knew that no one would argue
against that, but whether the OMA had been violated should
come down to a determination of fact, which should be done
by a jury.
Number 167
REP. NORDLUND asked if HB 254 would deny citizens access to
the court.
Number 174
REP. VEZEY said that he did not see it that way, because an
OMA lawsuit would be a valid pro bono case for many
attorneys, and also because most OMA violations were fairly
simple matters: a determination of if they did or did not
occur.
Number 190
REP. NORDLUND stated that a municipality or the state could
very easily make a lawsuit a very expensive process if it
wanted to by simply prolonging the case, which would
effectively prevent people from filing a case.
Number 198
REP. VEZEY stated that any body could redo its actions even
after an OMA violation was found, and after a court's
determination. He also stated that the final judge of any
OMA violation would be the electorate, which could easily
remove officers who violated it.
Number 216
KENT SWISHER, EXECUTIVE DIRECTOR OF THE ALASKA MUNICIPAL
LEAGUE (AML), joined the committee to testify in favor of
HB 254, and also in favor of HB 37. He stated that the
AML's biggest concern was clarifying the law to set a clear
standard for open meetings. He stated that when the
original 1964 law was passed, officials knew what a meeting
was, and that made following the OMA fairly easy. Since
then, very few governments knew what a legal meeting was
because of conflicting court decisions pertaining to Cordova
and Fairbanks. He stated that the League preferred HB 254's
definition of a meeting, but it also liked the processes set
down in HB 37. He noted that in some cases, governments did
have the need for closed meetings, such as when they needed
to consult with their lawyers. He urged the committee to
draft the statute to include a recognition of those needs.
He also called for changes to cover the need to meet in an
emergency, with little or no notice. He was also concerned
about meetings that might be held with constituents, or
attendance at conventions or workshops.
Number 402
REP. DAVIDSON asked if he believed that HB 254 would
encourage members of a governmental body to do more talking
in the open.
Number 410
MR. SWISHER said that if the body were not in violation of
the OMA, then it would encourage such communication between
officials and constituents.
Number 419
REP. DAVIDSON asked if the AML would have a problem, in the
case of a governmental body with eleven people in its
membership, with a quorum of six, if five people were to
meet and talk about policy before the next meeting.
Number 425
MR. SWISHER stated that there would be no problem, since the
statute would prevent the body from taking action. He
stated that since there was no quorum, there could be no
violation.
REP. DAVIDSON asked if Mr. Swisher saw no problem with those
private discussions.
Number 438
MR. SWISHER stated that if any discussion were allowed in
private, then there would probably be less in public, but it
simply was a matter of judgment. He stated that AML's
policy was that anything less than a quorum should be
allowed to discuss business without violating the OMA.
Number 443
REP. DAVIDSON asked what kind of items should be covered in
one of those judgment calls.
Number 448
MR. SWISHER said that people simply wanted a common standard
that everyone could follow: an unarguable and clear
standard.
Number 457
REP. DAVIDSON asked how people would determine, or judge,
when they were crossing the line of actually doing public
business in private.
Number 460
MR. SWISHER stated his position that less than a quorum
should be the standard, and the line of judgment for a
council was already established and observed even under the
current law.
Number 475
LARRY PERSILY, MANAGING EDITOR OF THE JUNEAU EMPIRE, joined
the committee to testify in opposition to HB 254. He stated
that HB 254 was not needed and was not a simple
clarification of existing law. He claimed that HB 254 would
diminish the public's ability to learn the hows and whys
behind public decisions. He stated that Section 1 would
dilute the ability of the public to follow policy at
teleconferenced meetings. He stated that Section 2 would
give policy makers a broad exclusion for hiding public
business behind the attorney-client privilege. He claimed
that Section 4, which dealt with legal costs, would build a
barrier to enforcing the OMA. He said that defining any
meeting as a quorum was overkill, and that such a broad
exclusion would allow several people to meet in private to
hide something. He stated that often, it was not necessary
to have a quorum for a decision to be made. In conclusion,
he stated that the current OMA was not the problem, just
those who would violate it.
Number 572
WENDY REDMAN, VICE PRESIDENT FOR UNIVERSITY RELATIONS,
UNIVERSITY OF ALASKA, testified in favor of HB 254. She
stated that the University was not covered by a lawsuit, but
had filed amicus curiae briefs in relation to other cases.
She stated that the current OMA had had a chilling effect on
business done by the University's Board of Regents.
Number 585
ROSALEE WALKER, PRESIDENT, ALASKA MUNICIPAL LEAGUE,
testified in favor of HB 254. She referred back to Mr.
Persily's comments that he knew of no one filing an OMA suit
on the basis of meetings away from home at conferences, and
noted that the Fairbanks OMA case grew out of an alleged
meeting at the National League of Cities meeting in
Washington, D.C. She stated that anytime an unpopular
decision was made, members of the public who were angry used
the OMA for an easy way to protest the decision. She stated
that the root problem was that no one had a definitive
answer for what constituted an official meeting. She stated
that the current OMA was causing public officials to engage
in silly behavior, citing one Christmas when some assembly
members placed an advertisement in the newspaper declaring
that they would invite other public officials to dinner. In
Nome, another public official was forced to change his
dentist because the dentist became a member of a council on
which the original official served.
Number 634
REP. JOHN DAVIES, PRIME SPONSOR OF HB 37, joined the
committee to testify in opposition to HB 254. He objected
to the committee hearing itself, stating that it was in
violation of the previous Thursday rule. He also objected
to having only one hearing on Open Meetings, and to the
meeting not being teleconferenced. He further objected to
the hearing of HB 254 instead of HB 37, noting that it had
been standard procedure to use the lower numbered bill on
similar topics as the vehicle of discussion. As for the
subject itself, he noted that the reason behind huge legal
debts in previous OMA cases, including the Cordova case, was
the filing of lawsuits against individuals. He stated that
if HB 37 had been in effect, such lawsuits would not have
been likely, and called for the committee to add such
provisions to HB 254. He refuted the minimum standard claim
that municipalities could institute higher standards,
because they would not be held liable for that, based on
legal precedents that a body could suspend its own rules.
He also objected to the removal of the requirement that
agency materials be available at teleconference sites,
saying that the state would probably rely more on
teleconferences in the future in order to save money, and
that if the public did not have access to materials, it
would be hard to follow the discussion. As for attorney-
client privilege, he urged the committee to take care in
modifying the statute. He stated that the relationship
between an assembly and its attorney in executive session
was different than that of an individual and his or her
attorney.
TAPE 93-52, SIDE A
Number 000
REP. DAVIES said that exempting hospitals from OMA
requirements was simply a mistake and urged the committee
not to allow it. He did agree with changing the language
automatically voiding actions taken in violation of the OMA,
because the decision should be examined in court, and
because the decision itself might actually be the right one.
He objected to making OMA plaintiffs pay their own court
costs, saying that it would disenfranchise the public. He
stated that the million dollar plus Cordova case was an
exception. He said that the key point of debate centered
around the definition of a meeting. He noted that HB 37
called for a majority of a quorum, and said that it was best
to set a minimum standard to safeguard the right of the
public to know. He stated that allowing one less than a
quorum to meet in private would circumvent the intent of the
framers of the original OMA. In conclusion, he asked for
more hearings on OMA, including HB 37, and asked for
teleconferences on the topic.
CHAIRMAN PORTER noted the introduction of several amendments
to be considered.
Number 258
REP. NORDLUND introduced what he called a compromise
position between the Vezey bill and what the press
association wanted. He introduced the first amendment,
labeled "J.9", deleting the provision for both parties to
pay their own court costs. It also eliminated the
possibility for individual lawsuits; it allowed the court to
void an action unless it was in the best interest of the
public; and it deleted the reference to Rule 82 of the
Alaska Rules of Civil Procedure.
REP. PHILLIPS objected to the amendment, saying that
individual members of a governing body were already
protected to some degree.
REP. NORDLUND stated that he drew the clause in because of
the Cordova case, in which several members hired individual
lawyers.
CHAIRMAN PORTER stated that hiring a lawyer must be an
individual choice.
Number 352
REP. JAMES suggested getting rid of Rule 82, saying that the
possibility of negotiated settlements would increase.
Number 356
CHAIRMAN PORTER called for more discussion. Seeing none, he
called for a vote.
Amendment 1 failed by a 5-2 vote with Reps. Davidson and
Nordlund voting yes and Reps. Phillips, Green, Kott, James
and Porter voting no.
Number 365
REP. NORDLUND asked to get the sense of the committee on the
issue of both parties having to pay court costs. He asked
if the committee would force a plaintiff to pay his or her
own costs only if he or she lost. He stated that a total
exemption went too far, especially if one party had a good
case, but did not have the money to pay for it.
Number 379
CHAIRMAN PORTER replied that it was necessary to reduce the
number of lawsuits as well as court costs, and that he would
support the suggested amendment. He allowed a verbal
amendment to be introduced.
REP. NORDLUND moved such an amendment.
REP. PHILLIPS objected.
Number 401
REP. DAVIDSON spoke in favor of the amendment, saying that
without the change, the state would become the state of the
privileged, those who could pay for suits.
Number 422
REP. PHILLIPS took the opposite stand, saying that it was
not a right to sue, but rather a privilege. She said that a
person might have the privilege to sue, but the state should
not be obligated to pay.
Number 434
REP. DAVIDSON stated that privilege based on the ability to
pay was wrong.
Number 444
CHAIRMAN PORTER noted the existence of legal organizations
which helped needy people, including Alaska Legal Services.
Number 454
REP. DAVIDSON stated that the agency had a huge case load,
and faced major budget cuts.
REP. JAMES noted that anyone could sue for almost anything.
She said that the state must pursue settlements.
Number 485
REP. KOTT stated that an OMA suit was often a tool used to
embarrass groups. He theorized what would happen to a
Citizens Advisory Group if it were taken to court by a major
corporation for an alleged OMA violation. He stated that it
would be very easy for the company to eliminate the group by
prolonging the case.
Number 509
CHAIRMAN PORTER stated that there were remedies in the law
to specious litigation, but they were not adequate.
Number 517
REP. DAVIDSON agreed that anyone could accuse anyone of
anything, but noted that there was a right to appeal, and
was thankful it was that way. He stated that allowing the
state to pay for that process was part of democracy.
Number 535
REP. PHILLIPS stated that there was nothing in HB 254 that
denied a citizen the right to sue. It only stated that if
someone sued, they would be responsible for the costs.
Number 545
CHAIRMAN PORTER called for a vote on the amendment.
Amendment 2 failed by a 4-3 vote. Reps. Nordlund, Davidson,
and Kott voted yes; Reps. Phillips, Green, James and Porter
voted no.
Number 559
REP. NORDLUND then introduced Amendment 3 (labeled "J.7"),
dealing with notice requirements for a meeting. It added
provisions for announcements of the subjects to be covered,
as well as allowing for a 72-hour notice period except for
emergency meetings.
Number 570
REP. PHILLIPS noted that such a provision was already set in
local ordinances in several communities. She asked for
comment by Mr. Swisher to verify that most local meetings
were advertised already.
Number 583
MR. SWISHER stated that the League had always thought that
24 hours was reasonable notice, but some court decisions,
such as in an Anchorage School Board case, held that five
days' notice was not considered adequate for certain topics.
He objected to the 72-hour notice, saying that some areas
did not have daily newspapers, and changing an agenda would
be difficult. He stated that the League was not as
concerned about "reasonable notice" as it was about
emergency action.
Number 605
REP. PHILLIPS stated that amendment to Title 44 was not the
right place to deal with notice, but rather in Title 29.
She also stated that it would be more appropriate to allow
the municipalities to request any changes desired.
Number 610
REP. NORDLUND stated that the change would affect more than
just the municipalities. He stated that it would guarantee
that all people would be given notice for all governing
bodies 72 hours in advance. He asked Mr. Swisher if the
League would like more clarification on what constituted
reasonable notice.
Number 618
MR. SWISHER stated that the League would like clarification
on notice required in emergency situations.
REP. PHILLIPS asked why that could not be handled at the
local level.
CHAIRMAN PORTER noted the diversity of the state and the
difficulty in setting a statewide minimum.
Number 641
REP. JAMES stated that she would like to see a clarification
on emergency meetings, but did not like setting a statewide
72-hour standard.
Number 659
CHAIRMAN PORTER noted the time to see if the meeting might
be over in time for a previously announced caucus. He then
announced that HB 167 would be deferred for hearing until
the following Monday.
Number 669
REP. NORDLUND again spoke in support of the amendment, and
noted the points made by Mr. Swisher and members of the
committee, and stated that he was having second thoughts on
the 72-hour notice. He asked to divide the question.
Number 676
CHAIRMAN PORTER agreed that subjects should be noticed for
meetings, and noted the need for emergency provisions to be
made. He asked for suggestions.
Number 683
REP. JAMES wondered about the standard notice requirements,
and expressed concern that such requirements might preclude
discussions on topics brought up at a meeting, such as
topics that might be brought up by members of the public.
Number 697
REP. PHILLIPS stated that municipal governments always used
a notice of "comments by the public" to allow for such
possibilities.
Number 705
REP. DAVIES rejoined the committee and agreed that such
requirements were already part of Title 29. He noted that
Title 29 only covered municipal entities, but not the
University or advisory councils. He stated that without
changing the OMA, such bodies would not be covered by notice
requirements.
Number 720
CHAIRMAN PORTER suggested amending the amendment to strike
the words from "Except as provided" to "except that a
shorter notice" and inserting "a meeting can be convened
provided a body finds an emergency exists."
Number 731
REP. DAVIES suggested another adjustment in the language to
allow for emergency proceedings.
Number 756
CHAIRMAN PORTER read the finalized version of the amendment,
which struck the section starting with "except as provided"
and ending with "the meeting." The amendment also struck
the next three lines starting with "except that" and placed
it after a comma that the committee added after the fourth
word in line two, "under this section." The verbatim
amendment would read as:
(e) "Reasonable public notice shall be given for all
meetings required to be open under this section, except
that a short notice period may be provided if, upon
convening, the governing body adopts a finding that an
emergency exists that justifies the shorter notice
period. The finding must describe the nature of the
emergency. The notice must include the date, time,
subjects to be considered, and place of the meeting
and, if the meeting is by teleconference, the location
of any teleconferencing facilities that will be used.
In addition to the publication required by AS
44.62.175(a) in the Alaska Administrative Journal, the
notice may be given by using a combination of print and
broadcast media."
Number 770
REP. PHILLIPS stated that she was in favor of the amendment
as revised.
REP. NORDLUND also affirmed his support.
Number 786
CHAIRMAN PORTER, after hearing general discussion, called
for comments on Amendment 3. Hearing none, he asked if
there were any objections to its adoption. There were none,
and Amendment 3 was adopted by the committee.
TAPE 93-52, SIDE B
Number 000
REP. NORDLUND introduced Amendment 4 (labeled "J.6"), which
mandated roll call votes during teleconferenced meetings,
but also provided for votes by unanimous consent.
Number 023
CHAIRMAN PORTER objected in order to discuss the amendment.
He stated that he was trying to figure out a way to vote
besides voice votes or unanimous consent. Members pointed
out that hands could be raised, which was traditionally not
done in the House. Chairman Porter then removed his
objection. He then asked if there were any more objections.
Hearing none, Amendment 4 was accepted by the committee.
Number 055
REP. NORDLUND then introduced Amendment 5 (labeled "J.5"),
which deleted the word "agency" in the sentence on lines 1
through 3 on page 2.
REP. PHILLIPS objected to Amendment 5.
Number 059
REP. NORDLUND stated that requiring that all materials be
available at teleconference sites was unreasonable. He
suggested changing the amendment to read that a reasonable
effort to provide materials would be better.
Number 077
REP. JAMES stated that she was not sure the amendment was
needed, since the effort was already being made.
Number 081
REP. PHILLIPS stated that most teleconference sites already
had bills and other materials before hearings started, and
that paper was always coming in. She stated that it would
be unreasonable to stop the meeting and fax new materials to
every teleconference site.
Number 100
CHAIRMAN PORTER stated that such a requirement would be
unreasonable, especially in light of amendments being
offered, committee substitutes being considered, and written
testimony being submitted. The other concern, he stated,
was that there would be additional teleconference sites
added at the last minute which would expect to have the
material sent.
Number 126
REP. DAVIDSON suggested amending HB 254 to include relevant
materials that were requested at the teleconference sites.
Number 134
REP. PHILLIPS stated that that was already being done.
Number 141
REP. DAVIDSON said that it seemed to him that not all sites
would want material that was added to meeting materials.
Number 173
REP. PHILLIPS stated that it was unreasonable to expect an
extension of the provision of such materials, and that to
extend it further would expose public entities to lawsuits.
Number 179
CHAIRMAN PORTER stated that was his concern about making
such an amendment. He stated that if the legislature was
writing specifically for itself, mechanisms were in place
for protection, but the OMA revision was being written for
everyone.
Number 186
REP. NORDLUND suggested changing the word "shall" to "may"
on line 3, which would provide a disclaimer.
Number 195
CHAIRMAN PORTER called for objections to Amendment 5, as
amended. There were no objections and the amendment was
adopted.
Number 199
REP. NORDLUND then offered Amendment 6 (labeled "J.8"),
which specified that a majority of a quorum would constitute
a meeting, and that it would be permissible for two people
to meet unless they constituted a quorum. Amendment 6 also
would prohibit serial meetings.
Number 217
REP. NORDLUND moved Amendment 6. REP. PHILLIPS objected.
Number 224
REP. PHILLIPS moved deleting all language but the final
sentence beginning with "Attendance of members..." and
ending with "...circumventing this section."
Number 249
REP. JAMES stated that there was a need for a clause
prohibiting a series of meetings, including telephone calls.
Number 264
REP. NORDLUND asked if he should withdraw his amendment.
CHAIRMAN PORTER referred back to the original amendment
deleting all but the final sentence. He then called for a
vote.
Amendment 6 was amended to delete all but the last sentence
by a 5-2 vote. Reps. Phillips, Green, Kott, James, and
Porter voted yes; Reps. Davidson and Nordlund voted no.
Number 279
CHAIRMAN PORTER called for a vote on Amendment 6 as amended.
There were no objections. Amendment 6, as amended, was
adopted.
Number 319
REP. DAVIDSON proposed Amendment 7, which was identical to
the first two sentences from the original version of
Amendment 6. REP. PHILLIPS objected. REP. DAVIDSON called
for more testimony from Rep. Davies.
Number 350
REP. DAVIES stated that he had three rationales for the
majority of a quorum standard. He said that Alaskans simply
were not comfortable with a quorum as the determining factor
for a meeting. Secondly, he stated that the intent of
Section 3.12 of the OMA provided that the deliberative
process should be open as well. Finally, he said, the
courts had stated that if any group met that could control
the final outcome of a decision, such as the override of a
veto or the prevention of an override, regardless of what
the OMA standard was, then the OMA was violated.
Number 376
REP. DAVIDSON stated that the intent of the amendment was
then to meet the legal standards as defined by Rep. Davies.
Number 384
REP. VEZEY was called to testify on the control issue. He
stated that he did not look into the veto issue, but in the
event of an override, an issue would have already been
through the legislative process. He stated that it appeared
that the legislature was trying to write common sense into
law, and he said that common sense could not be legislated.
He stated that the goal was not to legislate common sense,
but to take the courts out of legislative business. He
spoke in favor of the quorum standard, because it would take
chance or social meetings into account and eliminate the
possibility of litigation.
Number 417
REP. PHILLIPS stated that in her experience, many times
during her municipal career she was forced to car pool with
other female members during late night meetings, and if a
majority of a quorum standard were instituted, they would be
in violation. She stated that the practicality of working
in small town legislatures would be defeated by such a
standard.
Number 434
REP. VEZEY also commented on the use of the courts to govern
elected officials. He stated that there might be an abuse
of position by legislators, but that eventually the voters
would get rid of them. He stated that the effect of
allowing courts to govern legislators would make government
unwieldy.
Number 454
REP. DAVIDSON stated that the higher standard was an attempt
to legislate checks and balances, and that there should be a
creative attempt to amend the OMA to take into account
Alaska's peculiarities.
Number 477
CHAIRMAN PORTER called for a vote on Amendment 7, which
failed by a 5-2 vote. Reps. Green, Kott, Phillips, James,
and Porter voted no; and Reps. Davidson and Nordlund voted
yes.
Number 490
REP. NORDLUND moved Amendment 8, which would prevent serial
meetings between members of a governing body. REP. PHILLIPS
objected.
Number 525
CHAIRMAN PORTER noted that consensus taking was a normal
function of government and that it was a philosophical
argument. He stated that he did not know of any body that
did not do it, in order to help manage time.
Number 535
REP. PHILLIPS agreed with the chairman, saying that
consensus taking was a normal function of the process. She
stated that no one could take votes over the phone, no one
could make a decision, and no one could take action. She
stated that it was ridiculous asking officials not to gather
information.
Number 544
REP. JAMES stated that there were some times when phone
calls could be used in the decision making process outside
the public's knowledge, and that she would like to see an
amendment to handle serial meetings.
Number 561
REP. DAVIDSON called for HB 254 to be held over.
CHAIRMAN PORTER noted that the deadline for moving bills was
April 3, 1993.
Number 570
REP. JAMES pointed out that HB 254 was important legislation
that could easily be amended on the floor. She stated that
it was important to move HB 254.
Number 578
CHAIRMAN PORTER called for a vote on Amendment 8, which
failed by a 5-2 vote, with Reps. Green, Kott, Phillips,
James and Porter voting no; and Reps. Nordlund and Davidson
voting yes.
Number 581
REP. DAVIDSON spoke in opposition to moving HB 254 from
committee.
Number 593
REP. JAMES moved passage of HB 254 (as amended) from
committee with individual recommendations.
REP. DAVIDSON objected.
Number 597
HOUSE BILL 254 (as amended) was MOVED FROM COMMITTEE by a 5-
2 vote. Reps. Kott, Phillips, Green, James, and Porter
voted yes; and Reps. Davidson and Nordlund voted no.
Number 608
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 1:10 p.m.
| Document Name | Date/Time | Subjects |
|---|