Legislature(1999 - 2000)
05/05/1999 01:47 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
May 5, 1999
1:47 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 192
"An Act relating to reciting the pledge of allegiance by public
school students."
- MOVED CSHB 192(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 141(L&C)
"An Act relating to construction contracts and subcontractors;
relating to design-build construction contracts; and providing for
an effective date."
- MOVED HCS CSSB 141(JUD) OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HB 192
SHORT TITLE: PLEDGE OF ALLEGIANCE IN PUBLIC SCHOOLS
SPONSOR(S): REPRESENTATIVES(S) JAMES, Dyson, Kohring, Ogan,
Coghill, Rokeberg, Harris
Jrn-Date Jrn-Page Action
4/13/99 795 (H) READ THE FIRST TIME - REFERRAL(S)
4/13/99 795 (H) STA, JUD
4/15/99 833 (H) COSPONSOR(S): DYSON
4/21/99 905 (H) COSPONSOR(S): KOHRING
4/22/99 (H) STA AT 8:00 AM CAPITOL 102
4/22/99 (H) <BILL POSTPONED TO 4/29>
4/23/99 964 (H) COSPONSOR(S): OGAN
4/27/99 1038 (H) COSPONSOR(S): COGHILL
4/29/99 (H) STA AT 8:00 AM CAPITOL 102
4/29/99 (H) MOVED OUT OF COMMITTEE
4/29/99 (H) MINUTE(STA)
4/30/99 1105 (H) STA RPT 5DP 2AM
4/30/99 1105 (H) DP: JAMES, COGHILL, HUDSON, WHITAKER,
4/30/99 1105 (H) OGAN; AM: SMALLEY, KERTTULA
4/30/99 1105 (H) ZERO FISCAL NOTE (DOE)
5/05/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 141
SHORT TITLE: PROCUREMENT: CONTRACTS/SUBCONTRACTS
SPONSOR(S): SENATOR(S) LEMAN BY REQUEST
Jrn-Date Jrn-Page Action
4/12/99 879 (S) READ THE FIRST TIME - REFERRAL(S)
4/12/99 879 (S) L&C
4/20/99 (S) L&C AT 1:30 PM BELTZ 211
4/20/99 (S) MOVED CS (L&C) OUT OF COMMITTEE
4/21/99 985 (S) L&C RPT CS 4DP SAME TITLE
4/21/99 985 (S) DP: MACKIE, LEMAN, HOFFMAN, TIM KELLY
4/21/99 985 (S) ZERO FISCAL NOTE (DOT)
4/22/99 (S) RLS AT 12:05 PM FAHRENKAMP 203
4/22/99 (S) MINUTE(RLS)
4/23/99 1064 (S) RULES TO CALENDAR AND 1 OR 4/23/99
4/23/99 1064 (S) READ THE SECOND TIME
4/23/99 1064 (S) L&C CS ADOPTED UNAN CONSENT
4/23/99 1064 (S) ADVANCED TO THIRD READING UNAN
CONSENT
4/23/99 1065 (S) READ THE THIRD TIME CSSB 141(L&C)
4/23/99 1065 (S) PASSED Y20 N-
4/23/99 1065 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/23/99 1071 (S) TRANSMITTED TO (H)
4/27/99 1020 (H) READ THE FIRST TIME - REFERRAL(S)
4/27/99 1020 (H) L&C
4/28/99 (H) L&C AT 3:15 PM CAPITOL 17
4/28/99 (H) MOVED HCS CSSB 141(L&C) OUT OF
COMMITTEE
4/28/99 (H) MINUTE(L&C)
4/29/99 1071 (H) L&C RPT HCS(L&C) 2DP 2NR 1AM
4/29/99 1071 (H) DP: ROKEBERG, HARRIS; NR: CISSNA,
4/29/99 1071 (H) HALCRO; AM: MURKOWSKI
4/29/99 1071 (H) SENATE ZERO FISCAL NOTE (DOT) 4/21/99
4/30/99 1122 (H) JUD REFERRAL ADDED
5/04/99 (H) JUD AT 1:00 PM CAPITOL 120
5/04/99 (H) HEARD AND HELD
5/05/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
RICHARD SCHMITZ, Legislative Secretary
for Representative Jeannette James
Alaska State Legislature
Capitol Building, Room 102
Juneau, Alaska 99801
Telephone: (907) 465-3743
POSITION STATEMENT: Presented sponsor statement for HB 192.
THERESA BANNISTER, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Testified on SB 141.
DON McCLINTOCK, Attorney
Ashburn and Mason
1130 West 6th Avenue
Anchorage, Alaska 99501
Telephone: (907) 276-4331
POSITION STATEMENT: Testified on SB 141.
ANNETTE KRIETZER, Legislative Assistant
to Senator Loren Leman
Alaska State Legislature
Capitol Building, Room 115
Juneau, Alaska 99801
Telephone: (907) 465-2095
POSITION STATEMENT: Testified on behalf of sponsor on SB 141.
ACTION NARRATIVE
TAPE 99-54, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:47 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, Croft and Kerttula.
Representatives Murkowski and James arrived at 1:50 p.m. and 1:55
p.m., respectively.
HB 192 - PLEDGE OF ALLEGIANCE IN PUBLIC SCHOOLS
CHAIRMAN KOTT announced that the first order of business is HOUSE
BILL NO. 192, "An Act relating to reciting the pledge of allegiance
by public school students."
Number 0097
RICHARD SCHMITZ, Legislative Secretary for Representative Jeannette
James, Alaska State Legislature, explained that HB 192 calls for
the recitation of the pledge of allegiance in public schools.
Presently, there is no standard policy in Alaska. Mr. Schmitz
informed the committee that recitation of the pledge of allegiance
is required in Anchorage, somewhat required in Fairbanks, and not
required in Juneau. In some cases, the pledge of allegiance is
recited in the elementary schools while in others it is recited
through the middle schools. Mr. Schmitz stated, "The aim of HB 192
is to standardize the pledge of allegiance policies among the
state's public school systems and to insure that the basic civic
function is held on a regular basis at all grade levels of Alaska's
public schools." Upon research, the state of Washington was found
to have a basic pledge statute attached to its flag statute.
Number 0242
REPRESENTATIVE ROKEBERG asked whether there is an exemption for
extra-curricular activities such as sporting events.
MR. SCHMITZ pointed out that at most sports events the national
anthem is preformed. This would provide an opportunity for the
pledge of allegiance in a classroom setting. He envisioned that at
assemblies there would be a pledge, but at sporting events the
national anthem is utilized which seems to take precedent over the
pledge of allegiance.
REPRESENTATIVE ROKEBERG noted that the bill refers to
"interscholastic events" which he did not know if that was
appropriate.
MR. SCHMITZ pointed out that the language - "if feasible" - is also
used which seems to leave room for common sense and judgement on
the part of school administrators.
CHAIRMAN KOTT surmised then that the governing body is required if
feasible.
MR. SCHMITZ said that is correct.
REPRESENTATIVE ROKEBERG commented that he supported this and almost
signed on as a sponsor, but he was unsure as to the appropriateness
of the pledge of allegiance at all interscholastic events. He
indicated that although in some instances it may be feasible, it
may not be appropriate.
MR. SCHMITZ stated that the bill's reference to interscholastic
events could be left out of the bill without affecting its intent.
Number 0464
CHAIRMAN KOTT inquired as to the who the language - "governing
body" - was referring; the school districts or the local school
boards or a combination thereof.
MR. SCHMITZ noted that he is not an attorney. He believed that the
drafter utilized the language in existing flag statute.
REPRESENTATIVE CROFT indicated that he shared the chair's concern.
He believed that there is confusion regarding the practicalities of
feasibility and the passive ordinance. He asked what the "Bellamy
Salute" is.
MR. SCHMITZ noted that the "Bellamy Salute" was the original pledge
which was last changed in 1954. There was discussion regarding how
the hand position of the pledge was changed after World War II.
REPRESENTATIVE JAMES, Sponsor of HB 192, Alaska State Legislature,
illustrated the original salute.
REPRESENTATIVE CROFT asked whether every child was required to
recite the pledge of allegiance back then.
REPRESENTATIVE JAMES replied no.
Number 0690
CHAIRMAN KOTT referred to page 1, line 7 which speaks of the
"governing body". To whom does that refer?
REPRESENTATIVE JAMES said that there is not a definition in law,
but she believed it would be the local school board which is the
governing body of the schools.
REPRESENTATIVE GREEN inquired as to the possibility that the
language of line 8 would require the pledge of allegiance to occur
in each class.
MR. SCHMITZ clarified that the language - "regularly" - was chosen
to preclude "daily", although that was the thought. Leaving the
language open provides a bit more leeway to the governing school's
administration. He indicated that as long as the pledge is done
weekly, then each school could determine the specifics. The idea
is to do the pledge more than never.
REPRESENTATIVE MURKOWSKI referred to the language - "be held
regularly in each classroom" - which she interpreted to mean in
each classroom the pledge will be recited.
REPRESENTATIVE JAMES clarified that the intent of that language was
to recite the pledge in kindergarten, first, second, third, fourth,
et cetera. She said that she did not necessarily mean each
classroom that the student was in, but rather that classroom for
each grade level. Perhaps, the pledge should be done in the
homeroom.
REPRESENTATIVE MURKOWSKI noted that many schools do not have
homerooms.
Number 0903
CHAIRMAN KOTT surmised then that Representative James would like
for the pledge of allegiance to be recited at least once a day in
a classroom. Thereafter, it could occur in a school assembly and
if feasible, at an interscholastic event. Chairman Kott asked
whether the pledge allegiance would be more apt to be conducted at
the beginning of the school day in order to avoid reciting the
pledge at the beginning of every class.
REPRESENTATIVE JAMES specified that her intent was to learn the
pledge and recite it regularly. There are children that do not
know the pledge of allegiance which is the problem. It is
important to have a flag in each classroom.
REPRESENTATIVE ROKEBERG reiterated his belief that the reference to
interscholastic events should be removed. He indicated that if the
bill were amended to provide the local governing body more leeway
to establish the specifics, some of these problems could be
overcome.
REPRESENTATIVE JAMES said that she did not have a problem with
that.
REPRESENTATIVE ROKEBERG discussed allowing the local governing body
to tailor this to the specific needs and circumstances.
Number 1081
REPRESENTATIVE MURKOWSKI noted that the state of Georgia used the
following language:
"Each student in the public schools of this state shall
be afforded the opportunity to recite the pledge of
allegiance to the flag of the United States of America
during each school day."
REPRESENTATIVE MURKOWSKI further noted that "during each school
day" would not have to be utilized. As Representative Rokeberg
suggested then the local governing bodies would be allowed to
specify when, where, and how.
REPRESENTATIVE JAMES stressed that she did not mean to insist that
the pledge be recited every school day, but only as a regular
program. She noted the need for the language to allow those who do
not want to recite the pledge to be able to maintain silence and
respect.
CHAIRMAN KOTT asked whether Representative James adamantly
supported the inclusion of the language, "in each classroom, at
school assemblies, and, if feasible, at interscholastic events."
REPRESENTATIVE JAMES replied no. She said that the language -
"such as" - could be inserted. However, she indicated that she
liked listing those instances where the pledge could be done, but
she did not want to mandate it.
CHAIRMAN KOTT suggested deleting line 8 and inserting language
indicating that the governing body would determine the location,
time, et cetera.
REPRESENTATIVE JAMES said that she did not have a problem with
that.
CHAIRMAN KOTT clarified, in response to Representative Croft, that
it would have to be clear that the governing body would have the
authority and flexibility to determine the location, time, et
cetera.
Number 1295
REPRESENTATIVE CROFT commented that Chairman Kott's proposal is a
good idea. He pointed out that the state of Montana's code is more
detailed and specifies, "(5) If a student or teacher declines to
participate in the recitation...a school district may not for
evaluation purposes include any reference to the student's or
teacher's not participating."
REPRESENTATIVE JAMES stated that simple is better.
REPRESENTATIVE GREEN referred to line 7 and suggested deleting,
"require that", and inserting, "afford all students the opportunity
to participate in an appropriate flag exercise to be held on a
regular basis."
REPRESENTATIVE JAMES objected. She did not believe that to be
enough, it should be required. She emphasized that is the portion
of the bill that should be kept.
Number 1459
REPRESENTATIVE ROKEBERG said, "I think, if I'm not mistaken, the
sponsor had in mind to the playing of The Star-Spangled Banner at
interscholastic events which is more common than saying the pledge.
So, I think, but that's not spoken to so I'm not sure we really
need to have the pledge recited here, unless that's what the
sponsor wants to make sure that's in the title and everything."
REPRESENTATIVE JAMES commented that she wanted it in statute.
REPRESENTATIVE ROKEBERG recommended then that the committee should
consider a flag salute including the playing of the National
Anthem. He indicated that could be in lieu of the pledge which he
believed that to be appropriate.
REPRESENTATIVE JAMES pointed out that the playing of the National
Anthem would not negate the need for a regularly scheduled flag
salute. The playing of the National Anthem does not teach the
students the words to the pledge of allegiance. Representative
James said that she is embarrassed that there are children growing
up that do not know the pledge of allegiance.
REPRESENTATIVE ROKEBERG agreed with Representative James.
Therefore, he suggested that the language refer only to the pledge
of allegiance and not "an appropriate flag exercise".
REPRESENTATIVE CROFT pointed out that the current language works
together or else the respectful silence language would have to be
addressed in both spots. Representative Croft said that Chairman
Kott's earlier suggestion was appropriate.
Number 1589
CHAIRMAN KOTT offered a conceptual amendment [Amendment 1] to
delete line 8 and end line 7 with a period. There being no
objection, Amendment 1 was so adopted.
CHAIRMAN KOTT asked whether it should be placed in statute and the
governing body provided the flexibility or without any language
would the governing body be provided that flexibility.
REPRESENTATIVE MURKOWSKI interpreted it to mean that specific
authority to the governing body is not necessary. She believed
that with the directive to "require that an appropriate flag
exercise be held regularly", there is an underlying assumption that
someone where determine the specifics. Therefore specifying that
the governing body has the authority to do certain things does not
move further down the road.
REPRESENTATIVE CROFT explained that originally he felt the original
language was appropriate. However, do we want to allow an
individual to charge that the pledge is not be held regularly
enough and then the judge would determine what is "appropriate" and
"regularly" or that the governing body would make that
determination.
REPRESENTATIVE GREEN stated with 50 different school districts,
there would probably be 50 different interpretations of
"regularly". He indicated that the first to be litigated would
result in the determination for everyone. Representative Green
said that it would be all over the map.
CHAIRMAN KOTT agreed that would be the case without some direction
from the Department of Education.
REPRESENTATIVE GREEN inquired as to whether Representative James
wanted uniformity throughout the school districts.
REPRESENTATIVE JAMES replied, "Not necessarily. I think it is up
to each school board to make that determination as long as it is
part of--there is a regular occurrence of it, that it's part of the
school education system. That's all I'm asking for."
REPRESENTATIVE CROFT asked whether Representative James would want
someone to have the right to go into court and say what they
determined as "an appropriate flag exercise...regularly" or would
it be preferred to have the school board make the determination.
REPRESENTATIVE JAMES noted that people cannot be stopped from going
to court, but if people do not like the choices of the school board
then they can complain and elect someone else.
CHAIRMAN KOTT said that he believed the litigation could be avoided
if the language indicating that the governing body shall require an
appropriate flag exercise to be held regularly as determined by the
governing body. Such language clarifies that the governing body
would make the decision.
REPRESENTATIVE CROFT agreed.
REPRESENTATIVE JAMES said that she did not have a problem with
that.
REPRESENTATIVE ROKEBERG inquired as to how Representative James
would feel about adding the language - "or National Anthem" - at
the end of line 12.
Number 1854
REPRESENTATIVE CROFT moved that the committee adopt the following
amendment [Amendment 2]:
Page 1, line 7, before "."
Insert, ",as determined by the governing body"
There being no objection, Amendment 2 was so adopted.
REPRESENTATIVE JAMES stated that she understood the pledge and The
Star-Spangled Banner to be two different issues. "The language in
the pledge says who we are. The Star-Spangled Banner is the flag
living through war. It's a totally different issue all together.
It's respect to the flag, but in a different issue. What I'm
interested for children to understand is not war, but is about our
daily living where we have this, 'one nation under God,
indivisible, with liberty and justice for all.' Liberty and
justice for all is extremely important and 'the republic for which
this flag stands', those are the two important parts of the pledge
of allegiance. I think they are extremely important as a civic
lesson, if nothing else." Representative James did not have a
problem with the playing of The Star-Spangled Banner as it is
typical for interscholastic events, however, it does not take the
place of the pledge of allegiance.
REPRESENTATIVE ROKEBERG pointed out that he made that
recommendation due to the use of the language, "an appropriate flag
exercise". He stressed, "We are either talking about the pledge or
not."
REPRESENTATIVE JAMES commented that she wondered how long this has
been working in the state of Washington and if they have had these
problems.
CHAIRMAN KOTT asked whether Representative Rokeberg was concerned
with the language on line 7, "flag exercise" and would recommend
that language be replaced with "pledge of allegiance".
REPRESENTATIVE ROKEBERG agreed. He added that the current language
implies that there is something besides the pledge that would
qualify as "an appropriate flag exercise".
CHAIRMAN KOTT suggested the language, "students recite the pledge
of allegiance on a regular basis as determined by a local body."
REPRESENTATIVE KERTTULA pointed out that the bill only speaks to
students who wish to remain silent. Perhaps, the language "anyone"
could be utilized instead of "students", with regard to reciting
the pledge or remaining silent.
Number 2102
CHAIRMAN KOTT clarified then that on line 7, the language would
read, "The governing body shall require that 'the pledge of
allegiance' be recited regularly." He asked whether that would
work.
REPRESENTATIVE JAMES pointed out that the beginning of the bill
refers to the United States and Alaska flags.
REPRESENTATIVE CROFT did not foresee a lot of frivolous suing over
flag exercises.
REPRESENTATIVE ROKEBERG explained that the original language
referring to "interscholastic events" started his train of thought
regarding what an "appropriate flag exercise" would be.
CHAIRMAN KOTT asked whether there would be any situation in which
the flag would be saluted without the flag.
REPRESENTATIVE JAMES interjected and stated that one is not
supposed to salute the flag without it being present. She further
pointed out that there are rules regarding flag exercises and the
handling of the flag. Representative James emphasized the
importance of teaching students in public schools in America the
pledge. She acknowledged that those from different countries could
respect their own traditions as well as America's.
CHAIRMAN KOTT agreed with the original intent for students to
recite the pledge of allegiance.
REPRESENTATIVE CROFT agreed that the recitation of the pledge is as
important as Representative James' remembrance of Jehovah's
witnesses not participating in the pledge. Both illustrate our
freedom and is a good civic lesson. He reiterated the need to
refer to "anyone" and eluded to the need to not hold it against
those who do not participate.
Number 2397
CHAIRMAN KOTT asked whether Representative Croft was suggesting the
deletion of "Students" with "Any person".
REPRESENTATIVE CROFT replied yes. He moved that the committee
adopt Amendment 3 which reads as follows:
Page 1, line 9
Delete "Students"
Insert "Any person"
There being no objection, Amendment 3 was so adopted.
CHAIRMAN KOTT suggested at the end of line 12 inserting the
following language:
"If a person declines to participate in the recitation a
school district may not for evaluation purposes include
any reference to the student's or teacher's not
participating."
REPRESENTATIVE JAMES said that she did not have a problem with
that.
TAPE 99-54, SIDE B
Number 0001
CHAIRMAN KOTT informed the committee that his suggested language
would be Amendment 4.
REPRESENTATIVE MURKOWSKI asked whether Amendment 4 should refer to
the school district or the governing body.
CHAIRMAN KOTT said if the governing body is a local entity, as is
the case in Anchorage, Chairman Kott did not think it would have
the responsibility.
Number 0027
REPRESENTATIVE ROKEBERG asked whether an REAA [Rural Education
Attendance Area] is a school district.
REPRESENTATIVE JAMES replied yes.
REPRESENTATIVE CROFT mentioned that an REAA is a school district
under statute.
REPRESENTATIVE ROKEBERG asked whether a single-site school is a
school district.
REPRESENTATIVE JAMES replied yes.
REPRESENTATIVE KERTTULA pointed out that the language in Amendment
4 could be broadened rather than specifying "a student or teacher".
She suggested that the language, "If a person declines to
participate that shall not be used for any purpose."
REPRESENTATIVE JAMES suggested that Chairman Kott's original
language would be appropriate if "a student or teacher" is deleted
and the language - "a person" - is inserted.
Discussion ensued regarding the best language to be utilize in
Amendment 4.
The committee stood at-ease from 2:37 p.m. to 2:40 p.m.
Number 155
CHAIRMAN KOTT clarified that conceptual Amendment 4 reads as
follows:
"A person may decline to participate. Such action shall
not be used for evaluation on any other purpose."
CHAIRMAN KOTT asked whether there was any objection. There being
none, Amendment 4 was so adopted.
REPRESENTATIVE MURKOWSKI noted that her children attend a public
school which is a Spanish emersion school. Every morning the
pledge is recited, however some mornings the pledge is recited in
Spanish. Would that be a problem?
REPRESENTATIVE ROKEBERG commented that a law addresses that.
REPRESENTATIVE MURKOWSKI said that it was food for thought. She
inquired as to whether it made a difference if the pledge was
recited in another language.
CHAIRMAN KOTT said that he believed the courts would find that the
intent of HB 192 was met if the pledge is recited in Spanish.
Number 0280
REPRESENTATIVE ROKEBERG moved to report HB 192, as amended, out of
the committee with individual recommendations and the accompanying
zero fiscal note(s). There being no objection, CSHB 192(JUD) was
so moved from the House Judiciary Standing Committee.
CSSB 141(L&C) - PROCUREMENT: CONTRACTS/SUBCONTRACTS
CHAIRMAN KOTT announced the next order of business is CS FOR SENATE
BILL NO. 141(L&C), "An Act relating to construction contracts and
subcontractors; relating to design-build construction contracts;
and providing for an effective date."
CHAIRMAN KOTT referred to a memorandum dated May 5, 1999, from
Theresa Bannister [Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency] to
Representative Pete Kott. It discusses the intent language that
has been incorporated into a new committee substitute [1-LS0827\K,
Bannister, 5/5/99]. It cleans up the changes from yesterday [May
4, 1999] - the removal of the retroactive clause, the removal of
Section 3, and the addition of a new Section 7, which deals with
intent language that primarily comes from Chapter 15, SLA 1998.
Number 0513
CHAIRMAN KOTT called for an at-ease at 2:48 p.m. and called the
meeting back to order at 2:50 p.m.
CHAIRMAN KOTT asked Ms. Theresa Bannister from the Legislative
Affairs Agency whether a title amendment is required.
Number 0534
THERESA BANNISTER, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, believed
a title amendment is required. It would be better in its own bill,
however.
CHAIRMAN KOTT asked Ms. Bannister whether she was referring to the
intent language.
MS. BANNISTER clarified that she was speaking in general. The
title does not quite express what is in the bill.
CHAIRMAN KOTT said: "If we get into the title amendment, would we
not also perhaps be crossing over the single-subject rule or are we
still okay with that?"
MS. BANNISTER replied: "Basically, the single-subject rule boils
down right now to contracts. It may be okay still. It is getting
broad, but it still seems to apply to contracts. Everything you've
got in your--the intent language. But, as I said, it probably
would be better to have it in its own bill. I'm just saying it."
REPRESENTATIVE JAMES asked how Section 7 was placed in the
committee substitute.
CHAIRMAN KOTT explained that Section 7 was extracted from the
letter of intent that accompanied HB 53 out of the House Rules
Standing Committee.
Number 0622
REPRESENTATIVE ROKEBERG said: "Mr. Chairman, counsel says
(indisc.--talking) is redundant. It does recommend intent language
(indisc.--talking) for what we're doing here. Is that correct?
That's what is says in here."
CHAIRMAN KOTT replied it's helpful. This is nothing more than
confirming the original letter of intent. A letter of intent does
not carry a lot of weight.
Number 0660
REPRESENTATIVE ROKEBERG asked Chairman Kott whether this is
creating intent language out of a letter of intent.
CHAIRMAN KOTT replied it incorporates intent language into statute.
CHAIRMAN KOTT said: "Well, I think I agree with counsel. If you
have intent language it ought to be about what we're intending to
do with the actual (indisc.)."
Number 0676
REPRESENTATIVE JAMES expressed concern that Section 7 explains
Section 6, which has no connection to the rest of the bill. The
intent language for one section of the bill seems out of character.
CHAIRMAN KOTT recognized that it may seem out of character, but
believed it is within the committee's prerogative.
Number 0713
REPRESENTATIVE GREEN stated that kind of language does seem
self-serving; but, in looking at HB 53, it was specific to Fort
Greely, which is what this is all about.
REPRESENTATIVE JAMES commented that she did not disagree with that,
but this is an entirely different bill. She indicated that it was
not necessary to re-indicate the intention to try to prove that
Section 6 is appropriate.
REPRESENTATIVE ROKEBERG agreed with Representative James.
Number 0756
REPRESENTATIVE MURKOWSKI inquired as to why the committee spent
seven hours yesterday [May 4, 1999] on this.
REPRESENTATIVE JAMES stated because it is implicit.
REPRESENTATIVE ROKEBERG noted that it is already in the bill.
Number 0768
CHAIRMAN KOTT explained that it is in the bill in order to satisfy
those who feel that it is not clearly visible.
REPRESENTATIVE JAMES stated she did not want to belabor the issue.
If everyone is comfortable with the intent language, she indicated
she could pass the bill out of the committee with it. But it's
drawing attention to something that's implicit.
Number 0850
REPRESENTATIVE ROKEBERG made a motion to adopt the House committee
substitute for SB 141, 1-LS0827\K, Bannister, 5/5/99. There being
no objection, it was so adopted.
Number 0878
REPRESENTATIVE GREEN proposed an amendment, noting it had
originally been for Version K. He stated, "In essence what it says
is that if now we are going to agree that the action that's
happened up there at Fort Greely is in compliance with the
procurement code, I think that we should probably enshrine that -
all that intent language that went into [HB] 53 originally and has
been talked about subsequently. ... I've talked to the chairman of
the Finance Committee, they all understand that there should be
sideboard, and now that we have already decided through the legal
system that we do need an amendment change [title change] which is
gonna require a joint resolution, I would submit that the language
... -- I can read for conceptual acceptance and then we can get
copies of it. It would be put in here under ... Chapter 15, SLA
1998, it would be: 'For the agreement to lease must provide a
fixed rate per day adjusted annually during the term of the lease
according to an appropriate index. The fixed rate for the first
year of the lease must include all capital and operating costs and
may not exceed $70 per each bed day, then renumber accordingly.'"
Representative Green indicated the $70 figure resulted from all the
year's prior discussion that this operation could be done for that
amount per day, arrived at through both Arizona and the in-Alaska
costs. This is simply removing it from the intent language and
codifying it in the legislation.
REPRESENTATIVE ROKEBERG and REPRESENTATIVE JAMES both objected to
the conceptual amendment.
REPRESENTATIVE ROKEBERG spoke to his objection. He recalled there
was a great deal of discussion regarding the cost element. He
believed there is a question about what is included in and what is
excluded from the determination of what is the cost and the per
diem cost. Representative Rokeberg indicated he has some questions
about reviewing the record.
Number 1015
REPRESENTATIVE GREEN questioned whether an exception was being
taken to the prior dialog and the letter of intent. He asked
whether it was the number or the concept of a fixed number.
REPRESENTATIVE ROKEBERG responded, "I followed it (indisc.--talked
over) any testimony update us on that figure. I think (indisc.)
last year, is that what you're saying?"
REPRESENTATIVE GREEN agreed, noting no one objected to it then.
REPRESENTATIVE ROKEBERG mentioned it was the letter of intent not
the (indisc.). He said that was theory, but would have to look at
that.
REPRESENTATIVE GREEN commented it is for that very reason he is
concerned. If it is left as a letter of intent and left ambiguous,
there are no sideboards. He said, "We've gone to a sole-source
contract and we say, 'We don't care what it costs.'"
Representative Green emphasized that is not in the best interest of
the state.
REPRESENTATIVE ROKEBERG pointed out there are sideboards, stating,
"There's gotta be total review by the governor, the
inter-governmental agreement, the military, I mean there's so many
other hurdles that have to be accomplished."
REPRESENTATIVE GREEN questioned, "And cost?"
REPRESENTATIVE ROKEBERG responded, "(Indisc.) and cost, and then
the financing of it and everything else." He indicated his
impression is the contract would be between the state and the city
with the third-party provider. He agreed they should have a
standard, but indicated his reluctance over the proposed amendment.
He noted that had been a controversial figure and would like to
review it.
Number 1099
REPRESENTATIVE GREEN asked whether Representative Rokeberg agreed
there should be a figure.
REPRESENTATIVE ROKEBERG answered no, and adding, "I agree there was
a letter of intent (indisc.) in the bill last year is the problem.
Now you want to codify it, then I got a problem with that."
REPRESENTATIVE GREEN stated, per the chairman's recollection, that
HB 53 from the previous year covered the prison as well as the jail
in Anchorage. In the jail, there were specific numbers, but there
was nothing referred to in the prison other than the conceptual $70
per day. However, Representative Green noted in the bill itself
there was a fixed figure for the jail, and it seemed strange to him
that in one case they would agree to fix the figure.
REPRESENTATIVE ROKEBERG mentioned "the dollar figure." He
questioned that it had sought $53 million.
REPRESENTATIVE GREEN noted, "And operating costs."
REPRESENTATIVE ROKEBERG indicated there was not a per diem cost in
there.
Number 1141
REPRESENTATIVE CROFT pointed to Chapter 15 regarding this issue,
specifically Section 5, Authorization to Lease Correctional
Facility Space with Municipality of Anchorage. He stated, "Section
(b) The authorization given is subject to the following conditions.
These provide for a maximum of 400 beds, the capital costs may not
exceed [$]146,000 per bed or a total of [$]56 million. The annual
lease payments may not exceed [$]16,700 per bed or a total of an
additional -- I mean it's very clear on both the capital and the
lease operating per bed (indisc.)."
CHAIRMAN KOTT indicated all the conceptual amendment is saying is
$70 per day. He indicated a total figure could be arrived at, but
keeping it at $70 leaves it in simpler terms.
REPRESENTATIVE ROKEBERG said his concern is that was a target
number and whether it should be codified is the issue. He
mentioned that was to give direction to the department, but it
wasn't a "lock-in" number as he recalls. He indicated his desire
to check on this.
CHAIRMAN KOTT believed there had been discussion with the
department during the discussion regarding the letter of intent.
REPRESENTATIVE ROKEBERG spoke over, "We've had no testimony on that
issue before this year is the trouble." He indicated he would just
like to recall what happened and withdraw his objection.
Representative Rokeberg questioned if there was anyone present from
the Department of Law.
CHAIRMAN KOTT said he believes it was clearly indicated by both
sides that they would be satisfied with the $70 per day.
REPRESENTATIVE ROKEBERG confirmed from Chairman Kott that he was
referring to the previous year.
Number 1247
REPRESENTATIVE JAMES noted this a whole different legislature.
REPRESENTATIVE ROKEBERG agreed with Representative James. The
issue, as he recalled and the reason for his concern, is that was
a target to provide guidance to the Department of Corrections when
entering into a contract. He noted, "If you stipulate a (indisc.)
force - a cap on the price - it could be a (indisc.) and I think it
came in at $70 to one cent ...."
CHAIRMAN KOTT pointed out that the letter of intent from last year
was for a period of five years, therefore they were entering into
this agreement with the understanding that they would be able to
meet the target goal for five years. After that, it would be
adjusted.
REPRESENTATIVE ROKEBERG said that he understood that. He
emphasized that there was a target not a specific. He asked
whether the intent is to insert the intent language.
REPRESENTATIVE CROFT stressed that the intent language is something
short of statute, but it is important to the bill. Here, the
intent language was not goals, but rather that "...the agreement to
lease the facility must provide a fixed rate per bed adjusted
annually according to terms. The fixed rate for the first year
must include all and may not exceed and will cover. These are not
general goal languages, these are requirements." Representative
Croft recalled that being an important portion of the debate last
year when the thought was that there would be a competitive bid.
Now, with sole source, it becomes even more important to have these
requirements.
REPRESENTATIVE JAMES said that she did not know how those numbers
were arrived at and she noted that she was not present at all the
meetings last year. Representative James stressed that she was
being asked to support something that is not backed up in any way.
She requested that she be shown the evidence.
REPRESENTATIVE GREEN interjected and stated that Representative
James voted in favor of it.
REPRESENTATIVE JAMES emphasized that was last year and that she did
not recall those numbers.
The committee stood at-ease from 3:09 p.m. to 3:45 p.m.
Number 1425
CHAIRMAN KOTT noted that there were questions regarding how the $70
amount was arrived at. After review of the House Finance Standing
Committee minutes, Chairman Kott said that he was still unsure as
to how that amount was determined. However, the minutes contained
discussion from Commissioner Pugh, Department of Corrections, and
from Mr. Diamond, Senior Vice President and Secretary, Management
& Training Corporation in Ogden, Utah. That discussion referred to
the $70. Chairman Kott indicated that the formulation involved
perhaps, the number of beds and the fiscal note attached. However,
the Department of Corrections seems to suggest that it may be
closer to $85. Chairman Kott noted that he had inquired with the
commissioner on this issue, she recommended doing a cost analysis.
He noted that Representative Murkowski had pointed out that the $70
was included in the ordinance passed by Delta Junction.
Number 1695
DON McCLINTOCK, Attorney, Ashburn and Mason, testified via
teleconference from Anchorage. As the committee is aware, there
was a legislative letter of intent that was transmitted which
predicated the negotiations. The Delta Junction Ordinance 6.1
references the $70 pre day limitation. The settlement agreement
basically used the $70 per day as a basis for negotiating the
ground lease rent amount, Section 3B of the settlement agreement.
Using an 800 bed facility the cap of ground lease rent, $1,022,000,
is based on the $70 per day. Mr. McClintock pointed out that the
$70 per day was projected using 1998 dollars with an appropriate
cost of living index which was not specified.
CHAIRMAN KOTT stated that was what the committee had also
concluded. After further review of the proposed committee
substitute, Chairman Kott agreed with Representative James that the
new Section 7, intent language, is probably redundant and not
necessary.
Number 1862
REPRESENTATIVE GREEN moved that the committee adopt Amendment 1
which would remove Section 7, on page 3, lines 10-17, of the
proposed committee substitute. There being no objection, it was so
ordered.
REPRESENTATIVE CROFT noted that when the previous hearing was
adjourned he had an amendment before the committee. He inquired as
to what happened with that amendment.
CHAIRMAN KOTT explained that the proposed committee substitute
wiped out that amendment.
REPRESENTATIVE GREEN moved to adopt Amendment 2 which reads as
follows:
Page 3, line 10, insert a new section to read
"Sec. 7. Section 4(c), ch. 15, SLA 1998 is
amended by adding:
(4) the agreement to lease must provide a
fixed rate per each bed day, adjusted annually
during the term of the lease according to an
appropriate index. The fixed rate for the
first year of the lease must include all
capital and operating costs and may not exceed
$70 per each bed day."
Renumber previous Sections 7 and 8 accordingly.
REPRESENTATIVE GREEN explained that Amendment 2 would codify the
earlier discussion regarding fixing the base rate at $70 per day
before the escalator takes off. There being no objection,
Amendment 2 was so adopted.
REPRESENTATIVE CROFT asked whether that had a title change.
REPRESENTATIVE GREEN replied no, but noted that Amendment 2 would
require a title change.
Number 2090
REPRESENTATIVE KERTTULA moved that Section 6 be removed from the
proposed committee substitute and to renumber accordingly.
REPRESENTATIVE JAMES objected.
REPRESENTATIVE KERTTULA said that she appreciated the efforts to
establish a cap, however that does not resolve the underlying
concerns. There is still a sole-source contract.
REPRESENTATIVE JAMES understood the concern of Representative
Kerttula. Representative James believed there is a sole-source
contract and they have a right to do that. Although Representative
James was not sure that what is specified in Section 6 is
necessary, she was willing to do so if the language is better than
that in HB 53. Representative James pointed out the need to worry
about the state and how these prisoner facilities will be provided.
She interpreted this as merely providing an explanation of what
Delta Junction has done to this point. She said that she did not
want to make decisions for Delta Junction nor did she want to do
anything changing what has been done.
CHAIRMAN KOTT stated, "It would appear to me that Section 6
somewhat substantiates the position, at least in my interpretation
of what occurred during the passage of HB 53, that the legislature
felt that there was an opportunity for competitive bidding, but if
all the parameters were met and under certain circumstances--if the
parties wanted to go to a sole source and they met those specific
circumstances that fell within that parameter, in this particular
case it was a time constraint, that would be allowed." He believed
that rejection of Section 6 would seem to indicate that was not the
legislature's intent.
TAPE 99-55, SIDE A
Number 0001
REPRESENTATIVE KERTTULA expressed concern with saying that this
satisfies it. Although there has been lengthy testimony, it has
not been enough. She reiterated her concerns for those in Delta
Junction and those in overcrowded prisons. Therefore,
Representative Kerttula felt that the intent of HB 53 should
remain.
Number 0060
REPRESENTATIVE CROFT said that it seemed that, in the area of
privatization, extreme care must be taken to have it be
competitive. Privatization is sold on the benefits of competition
and free enterprise. He emphasized that in this area there should
be concern about sole-sourcing privatization contracts.
Historically, a lot of abuses have occurred in this area.
Representative Croft felt that Delta Junction was placed in a
difficult situation and has attempted to handle it well. He noted
that there must be review of the broader public policy goal.
Representative Croft stated, "I think we want to be very strict on
our efforts in privatization, that it doesn't get sole-sourced."
In his view, the benefit of privatization is competition.
Furthermore, the worst of both worlds is achieved with a
sole-source privatization contract. He noted that he expected this
situation, but not that the first competitive bid would not be
achieved. Doing this retroactively presents another layer of
worry.
Number 0331
REPRESENTATIVE JAMES agreed and understood many of Representative
Croft's comments. However, she was not convinced that a
competitive bid would have resulted in a better bid in this case.
She said that she was not even convinced that a competitive bid
would have resulted in another bid. Representative James pointed
out that she was not always pleased with competitive bids because,
as has been the case in Fairbanks, companies from outside Alaska
bid on something that cannot be done in Alaska. At least Allvest
has been doing business in Alaska, has been around since the
beginning of this issue and has committed to the $70.
Representative James informed the committee that her biggest
concern is the time line. She did not want to do anything that
will end a deal or place Delta Junction in jeopardy. Delta
Junction has good council, Jim DeWitt, and she did not believe he
would lead Delta Junction to the path of destruction. Therefore
based on the interest of the state and the need for a prison,
Representative James expressed the need to clarify what was meant.
She did not believe it would change anything nor did she believe it
was retroactive.
REPRESENTATIVE GREEN reviewed the various points of view presented
in yesterday's testimony [May 4, 1999]. He noted that he was in
favor of competitive bidding and expressed the need to do
privatization on a competitive basis. However, Representative
Green stressed that he did not like the concept of sole-sourcing,
especially on something as important as this. He indicated that
some merit must be given to the testimony that Allvest was the only
one coming forward. Weighing all those aspects and recognizing the
sideboards that have been inserted, Representative Green feels more
at ease. Therefore, Representative Green said that he would vote
to move this legislation out of committee.
CHAIRMAN KOTT asked whether there was any further discussion on
Amendment 3.
REPRESENTATIVE KERTTULA commented that she too knew Mr. DeWitt and
others involved and did not question their motives. She expressed
the need for them to stand on HB 53 which provides broad latitude
that could conceivably allow for a sole source as long as the
process was similar to the procurement code. Representative
Kerttula believed this to be a step too far.
Upon a roll call vote, Representatives Croft and Kerttula voted in
favor of Amendment 3 and Representatives Green, Rokeberg, James,
Murkowski, and Kott voted against Amendment 3. Therefore,
Amendment 3 failed to be adopted.
Number 0881
REPRESENTATIVE CROFT moved Amendment 4.
REPRESENTATIVE ROKEBERG objected.
REPRESENTATIVE CROFT offered the following amendment to Amendment
4: Delete "17" and insert "9", delete "A contractor who" and
insert "An entity that". There being no objection, the amendment
to Amendment 4 was so adopted. Therefore, Amendment 4, as amended,
would read as follows:
Page 3, line 9, following "section."
Insert "An entity that brings an action in
court to stop the procurement of a facility or
operation on a design-build construction
contract basis from being handled on a
competitive basis may be awarded the contract
on only on a competitive basis."
REPRESENTATIVE CROFT expressed concern with the Delta Junction
situation because a sole-source party threatened to sue in order to
stop competitive bidding. He informed the committee that in
discussion with the drafter, he has discovered there are legitimate
bases to sue to object to how a competitive bid is being run.
Under this, an entity could sue, win and have a bid reworked while
allowing the competitive bid to be satisfied. This language would
merely prevent an entity from suing against competitive bidding and
then receiving the bid sole source. If this had been in the
statute a month or so ago, Delta Junction could have merely pointed
to the RFP [Request for Proposals] time line equation. He
recognized that there is much disagreement regarding the underlying
fundamental reason for going sole source in this situation.
REPRESENTATIVE JAMES said that she did not have problems with the
amendment, however she did have the purpose for which the amendment
was offered. She took issue with Representative Croft's statement
that if this had been law, Delta Junction would have done things
differently. Delta Junction does not have any money. Furthermore,
Delta Junction is having problems with this issue regardless of the
lawsuit. From what Representative James had read, she believed
that Delta Junction faired better than if the agreement did not
exist. She said that she had much sympathy for the folks in Delta
Junction.
REPRESENTATIVE MURKOWSKI asked whether Amendment 4 would make this
retroactive.
Number 1245
REPRESENTATIVE CROFT clarified that to the extent Section 6 was
retroactive before, so is Amendment 4.
REPRESENTATIVE MURKOWSKI said that if the language was included as
part of subsection (d), of Section 4 of HB 53, there would be a
valid argument that it is retroactive and Allvest would not be able
to be in their current position with their sole-source contract.
REPRESENTATIVE CROFT pointed out that Amendment 4 says, "brings an
action in court" which has not happened. Therefore, the threat of
doing so would be removed, but they could not be disqualified
currently since they have not met that.
Number 1367
REPRESENTATIVE ROKEBERG agreed with Representative James. He
indicated that this clause is probably unconstitutional.
Furthermore, if this were enacted it could be used as a tool by a
party to get out of a contract. He also believed that this is a
deal killer due to the possibility of retroactive effects.
REPRESENTATIVE CROFT surmised from Mr. DeWitt's high
recommendations that he ably represented his client in this matter,
although there were not many tools available. This would have made
that situation somewhat easier because the threatening could not
have occurred. He noted that one of the reasons competitive
bidding did not occur was due to the threat of lawsuit from an
entity that then received the sole-source bid. That is poor public
policy.
REPRESENTATIVE JAMES said that she did not think that Delta
Junction received a bad deal.
REPRESENTATIVE ROKEBERG said that he believed that this language
was being inserted into statute with the law of general
applicability. He said that if he were a client who had hired a
contractor on a sole-source basis and he wanted to get rid of that
contractor, this could be used as leverage to do so. This should
be a tool and would frustrate privity of contract.
REPRESENTATIVE CROFT commented that Representative Rokeberg is
wrong on both counts. It is not a law of general application,
although it should be. Furthermore, he indicated that this could
not be used to push someone out of the competitive process.
Representative Croft clarified that even an entity that brings a
suit can be awarded on a competitive basis, but that entity cannot
be awarded on a sole-source basis.
REPRESENTATIVE MURKOWSKI noted that Representative Rokeberg has
brought forth a couple of constitutional privity of contract issues
which have not been addressed.
The committee stood at-ease from 4:29 p.m. to 4:37 p.m.
CHAIRMAN KOTT reminded the committee that there is objection to
Amendment 4.
REPRESENTATIVE MURKOWSKI moved to amend Amendment 4 to delete "line
9" and insert "line 10" and before "An entity", insert "Section 7".
REPRESENTATIVE ROKEBERG objected.
REPRESENTATIVE GREEN pointed out that Section 7 already exists. Is
the intent to place Amendment 4 after Section 7 which would make it
Section 8.
REPRESENTATIVE MURKOWSKI agreed her amendment should insert
"Section 8" on whatever line is appropriate.
REPRESENTATIVE ROKEBERG inquired as to which statute.
REPRESENTATIVE MURKOWSKI clarified that it would add a new section,
8.
REPRESENTATIVE CROFT clarified that it would be AS 36.30.300 (f).
CHAIRMAN KOTT asked whether there was objection to the amendment to
Amendment 4.
REPRESENTATIVE ROKEBERG objected.
CHAIRMAN KOTT said, "Hearing no objection to the amendment to the
amendment. We have the amendment as amended before us. Is there
any objection to the amendment?"
REPRESENTATIVE JAMES objected.
REPRESENTATIVE ROKEBERG commented that, as a matter of general
applicability law, this is ludicrous. He reiterated that this
could be used by a business person to their benefit which would
have a negative impact on the contracting business. This could be
used to frustrate and get rid of a sole-source contractor.
Number 1843
ANNETTE KRIETZER, Legislative Assistant to Senator Loren Leman,
Alaska State Legislature, informed the committee that this
amendment was reviewed by Senator Leman when it was felt to be
applicable to the special section of the bill. Ms. Krietzer said
that Senator Leman would prefer that the amendment not be applied
to the entire bill because there are issues he would like to work
on during the interim with the Association of General Contractors
and the Alaska Professional Design Council with regard to
design-build contracts. With regard to the amendment applied only
to this section, Ms. Krietzer said Senator Leman had no comment.
CHAIRMAN KOTT requested a roll call vote on the motion to adopt
Amendment 4 as amended. Representatives Murkowski, Croft and
Kerttula voted in favor of Amendment 4. Representatives Green,
Rokeberg, James and Kott voted against Amendment 4. Therefore,
Amendment 4 failed to be adopted.
CHAIRMAN KOTT asked whether there were any further amendments or
discussion.
Number 1941
REPRESENTATIVE ROKEBERG moved to report HCS CSSB 141(JUD), Version
LS0827\K, Bannister, 5/5/99, as amended, out of committee with
individual recommendations and the accompanying zero fiscal notes.
REPRESENTATIVE KERTTULA objected.
Upon a roll call vote, Representatives Green, Rokeberg, James,
Murkowski and Kott voted in favor of reporting HCS CSSB 141(JUD)
out of committee. Representatives Croft and Kerttula voted against
reporting HCS CSSB 141(JUD) out of committee. Therefore, HCS CSSB
141(JUD) was so moved from the House Judiciary Standing Committee.
ADJOURNMENT
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 4:44 p.m.
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