Legislature(1999 - 2000)

05/05/1999 01:47 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         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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