Legislature(2003 - 2004)
03/26/2004 08:03 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 26, 2004
8:03 a.m.
MEMBERS PRESENT
Representative Bruce Weyhrauch, Chair
Representative Jim Holm, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Paul Seaton
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Max Gruenberg
COMMITTEE CALENDAR
HOUSE BILL NO. 496
"An Act creating the Youth Vote Ambassador Program and relating
to that program; authorizing the members of the program to be
appointed to serve on election boards; relating to
qualifications for appointment to election boards; and providing
for an effective date."
- MOVED CSHB 496(STA) OUT OF COMMITTEE
HOUSE BILL NO. 327
"An Act relating to the powers and duties of the Department of
Transportation and Public Facilities; and repealing a
requirement that public facilities comply with energy standards
adopted by the Department of Transportation and Public
Facilities."
- HEARD AND HELD
HOUSE BILL NO. 527
"An Act relating to the Alaska Securities Act, including
reports, proxies, consents, authorizations, proxy statements,
and other materials, civil penalties, refunds of proceeds from
violations, restitution, and investment adviser representatives;
and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 496
SHORT TITLE: YOUTH VOTE AMBASSADOR PROG/ELECTION BDS
SPONSOR(S): REPRESENTATIVE(S) DAHLSTROM
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) STA
03/24/04 (H) STA AT 8:00 AM CAPITOL 102
03/24/04 (H) Heard & Held
03/24/04 (H) MINUTE(STA)
03/26/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 327
SHORT TITLE: POWERS/DUTIES DOTPF
SPONSOR(S): REPRESENTATIVE(S) HOLM
05/16/03 (H) READ THE FIRST TIME - REFERRALS
05/16/03 (H) TRA, STA
02/19/04 (H) TRA AT 1:30 PM CAPITOL 17
02/19/04 (H) Heard & Held
02/19/04 (H) MINUTE(TRA)
02/26/04 (H) TRA AT 1:30 PM CAPITOL 17
02/26/04 (H) Moved CSHB 327(TRA) Out of Committee
02/26/04 (H) MINUTE(TRA)
03/01/04 (H) TRA RPT CS(TRA) NT 4DP
03/01/04 (H) DP: MASEK, OGG, STEPOVICH, HOLM
03/16/04 (H) STA AT 8:00 AM CAPITOL 102
03/16/04 (H) Heard & Held
03/16/04 (H) MINUTE(STA)
03/26/04 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
KELLY HUBER, Staff
to Representative Nancy Dahlstrom
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 496, noted the
changes made by Version H, on behalf of Representative
Dahlstrom, sponsor.
LEONARD JONES
Elections Special Assistant
Division of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Responded to questions on behalf of the
division, during the hearing on HB 496.
JEFF OTTESEN, Director
Division of Program Development
Department of Transportation & Public Facilities (DOT&PF)
Juneau, Alaska
POSITION STATEMENT: Outlined the sectional analysis for HB 467.
JAMES CANTOR, Chief Assistant Attorney
Transportation Section
Civil Division (Anchorage)
Department Of Law
POSITION STATEMENT: Answered questions during the hearing on HB
467.
JEFF PARKER, Attorney at Law
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on HB 327.
DEE ESSERT
Anchorage, Alaska
POSITION STATEMENT: Testified on behalf of Sand Lake Community
Council in opposition to amending the state's transportation
statute, AS 44.42.050, during the hearing on HB 327.
MARY WHITMORE
Anchorage, Alaska
POSITION STATEMENT: Testified on behalf of herself to address
two sections in HB 327 regarding the issues of cost benefits and
retroactivity.
BOB DOLL
Juneau, Alaska
POSITION STATEMENT: Testified on behalf of himself to ask the
committee to withhold support from those portions of HB 327 that
would delete the cost benefit analysis in transportation
planning.
ACTION NARRATIVE
TAPE 04-47, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs Standing
Committee meeting to order at 8:03 a.m. Representatives Holm,
Seaton, Coghill, and Weyhrauch were present at the call to
order. Representatives Lynn and Berkowitz arrived as the
meeting was in progress.
HB 496-YOUTH VOTE AMBASSADOR PROG/ELECTION BDS
Number 0043
CHAIR WEYHRAUCH announced that the first order of business was
HOUSE BILL NO. 496, "An Act creating the Youth Vote Ambassador
Program and relating to that program; authorizing the members of
the program to be appointed to serve on election boards;
relating to qualifications for appointment to election boards;
and providing for an effective date."
Number 0088
REPRESENTATIVE SEATON moved to adopt the committee substitute
(CS) for HB 496, Version 23-LS1766\H, Kurtz, 3/25/04, as a work
draft.
CHAIR WEYHRAUCH objected for discussion purposes.
Number 0095
KELLY HUBER, Staff to Representative Nancy Dahlstrom, Alaska
State Legislature, discussed the changes made by Version H, on
behalf of Representative Dahlstrom, sponsor. She said Version H
deletes legislative findings. It clarifies that poll workers
will be from their registered precinct. However, if there are
not enough qualified individuals in the precinct, then the
[Division of Elections] will select people from the district.
As a last choice, if there are not enough people from the
district to work at the polls, then the division will select
people statewide.
MS. HUBER said [Version H] clarifies that the two youth
ambassadors will be in addition to the three "adult board
election members." She noted that at the previous hearing on HB
496, there had been a question regarding whether the youth
ambassadors will be compensated. She said they will, because
the way the system works is that they will also serve on the
election board, which is a compensated position. However, if
they choose to do outreach on behalf of the division, that would
be in a volunteer capacity.
MS. HUBER turned to another concern stated at the previous
hearing, regarding whether a youth would be put in a position to
make decisions on challenges at the poll. She said that she
spoke with people from the division and the answer is no,
because in training, there is a chairman of the board, and that
chairman would be an adult. The chairman is the only one at the
poll who would make those decisions regarding challenges.
Number 0230
REPRESENTATIVE SEATON remarked that although there will be
compensation given to the two [youth ambassadors] added to each
polling place, there is no fiscal note reflecting that fiscal
impact.
MS. HUBER said she is not certain there would be two added to
each. She said she would defer that question to a
representative from the division, and she reported that a fiscal
note was "on the way."
Number 0265
CHAIR WEYHRAUCH asked why the language couldn't provide that the
youth ambassadors "may" be compensated.
MS. HUBER concurred. She noted that she had asked the division
that question and the director's response indicated that the
youth will be working, and the idea is to bring the youth into
the system and let them learn; therefore, in some way, being
compensated is fair.
Number 0300
REPRESENTATIVE COGHILL, in response to Chair Weyhrauch,
confirmed that [Version H] dealt with his previous concerns.
Number 0333
LEONARD JONES, Elections Special Assistant, Division of
Elections, Office of the Lieutenant Governor, in response to a
question from Representative Seaton, said the rate of
compensation for "the individual" would be $7.50 an hour, which
is currently identified in 6 AAC 25.035. He said the division
believes that with the reduction of older workers, there will be
a zero fiscal note "on this impact." He noted that [the youth
ambassadors] will be paid in training status. He estimated, "It
will probably be no more than 16 hours for this compensation."
MR. JONES, in response to a question from Representative Seaton,
explained that [the two youth] would be in addition to the three
qualified poll workers. He said the division thinks it has
sufficient funds for the positions. He said the regional
supervisors will make the determinations based on their budgets.
He reiterated that the division doesn't think this will have a
significant impact, "especially to the division."
Number 0472
REPRESENTATIVE SEATON asked how many poll workers would
typically be in a downtown precinct. He asked if HB 496 would
change the number from five adult poll workers, for example, to
three [adult poll workers], with two youth workers.
MR. JONES said that customarily there would be a minimum of
three [poll workers] in each precinct. He said he didn't think
there would be a youth poll worker in all precincts, but in
those with them, that would increase the number by one or two.
REPRESENTATIVE SEATON said he's getting conflicting messages and
wants to "get this straight as to the effect of this bill on the
poll workers that we're currently using."
Number 0592
MS. HUBER explained that there is a group of poll workers whose
number is dwindling, as its members get older. She stated that
is why the program was suggested, to teach the youth about the
election process and bring them in. Those youth won't replace
"the ones you're talking about" right away. She described [HB
496] as a pilot program for the youths until they become adults.
She stated, "I think what the division is saying is because in
some places we just don't have the number of poll workers that
we used to, the numbers are fluctuating a bit; ... therefore,
they can absorb it [in] our budget." She indicated that the
youth would not become "person for person" replacements, but
would learn the process over time and, hopefully, continue with
their involvement in the years to come.
REPRESENTATIVE SEATON stated that if [the youths that would be
hired] would be in addition to the current number of workers,
then there would be a fiscal note of $7.50 an hour times how
many hours and workers. However, if the older people who stop
working are being replaced, then perhaps there wouldn't be a
fiscal note. He clarified that he is trying to find out which
situation it would be. He said he doesn't have a conflict with
it being either way, or with a training program, but just wants
to understand the situation. He asked if, for example, there
are currently five workers in an urban area, and if, [with the
passage of HB 496], that might turn into three regular workers
and two youths.
MR. JONES answered that that scenario could happen. He said pay
scales would vary, and he offered examples. He reminded the
committee that the regional supervisors will consider their
budgets when deciding whether to [hire] someone. He reiterated
that the division feels that it has the resources available to
cover the $7.50 an hour, with possible combinations of three to
six [workers] at each polling place, and didn't see the need to
project additional resources in a fiscal note. He added that
the division can't predict how many [youths] will be taking part
in the program.
Number 0829
REPRESENTATIVE HOLM stated his understanding that the reason for
[HB 496] is to increase awareness of the election process and to
get the youth of Alaska interested in voting. He noted that the
legislature doesn't get paid a lot and he is not a legislator
because of the money. He opined, "Because we have requirements
as to being a member of society, it's inherent upon us to do
these things for the right reasons." He questioned why the
youth would be paid to learn to be responsible citizens. He
turned to [the bottom of page 4 of a handout entitled, "New
Millennium Best Practices Survey," included in the committee
packet], which shows that 74 percent of states have laws that
allow for election day workers under the age of 18. He asked if
they are paid.
MR. JONES answered that, based on the information he has
reviewed from "a few of the other states," the youth are paid at
the minimum rate established of the state. He added that he
can't speak to every state that has a program.
REPRESENTATIVE HOLM suggested that the youth not be paid, not
that he thinks they shouldn't get money, but because it's
important that they do this for the right reason. He defined
the right reason as understanding that they have a duty to help
society. He indicated he may offer that as an amendment.
Number 0980
REPRESENTATIVE SEATON said he would like to ask the state if
there would be any liability problems if the youth are not
compensated.
Number 1002
MS. HUBER noted that there is [language] in the bill that would
allow the youth to be volunteers in an outreach capacity. She
stated her assumption that if they can be a volunteer in
outreach for the division, then the division would be all right
in having them as volunteers on the board. She stated her only
concern regarding not paying the youth is that the youth
ambassadors are members of the election board for the precinct,
which is why the division felt that they should be compensated.
She stated it is the committee's decision.
Number 1048
REPRESENTATIVE LYNN asked if any coordination has been made to
ensure that the youth involved can get time off from school to
participate.
MS. HUBER answered no. She said she thinks that any students
chosen for the program would work with their school to get a day
off during Election Day. She posited that it is one of those
decisions that would first be made between the parent and child,
and then be negotiated between the student and the school.
REPRESENTATIVE LYNN stated he has philosophic problems with
underage people being on an election board. He said, "This is
the very bedrock of our society - the voting process."
Number 1131
REPRESENTATIVE COGHILL revealed that, as someone who has taught
civics to students who get totally bored with the subject, one
of the more exciting things that happens to him as a teacher is
to see the light go on in the students eyes that "this is really
about our country, about our life." He said he thinks [HB 496
would provide] a good opportunity. Furthermore, he stated that
if he had a student that was going to leave his class to
participate in [this program], he might consider giving that
student an A for effort and a little extra credit. Regarding
the issue of payment, he opined, as long as the election board
feels that it can absorb the cost, he certainly doesn't have a
problem with [the youth getting paid]. He indicated that it
would be a little encouragement and "the others" are going to be
paid anyway. He stated that he is ready for the bill to move
out of committee.
Number 1187
CHAIR WEYHRAUCH said he agrees with "participation in the
process." In regard to the issue of money, he said he thinks it
would be fine [to pay the youth] as an incentive and to be on
equal footing with the other paid workers. He added, "If they
have the money to pay them, if they don't they don't." One way
to deal with that, he suggested, would be to say that they "may"
be compensated. He stated that he doesn't have strong feelings
on the issue one way or another and it's up to the committee [to
decide].
REPRESENTATIVE COGHILL stated that he thinks the youth should be
compensated.
Number 1230
REPRESENTATIVE BERKOWITZ concurred with Representative Coghill.
He said, "It just seems to me that if we're asking people to do
a job, we ought to pay for it. It's capitalism at its best."
Number 1244
REPRESENTATIVE SEATON stated that, notwithstanding his support
of the program, he would like the clarification made regarding
how the program will work - whether the numbers of workers will
be an addition or a replacement.
Number 1267
MR. JONES, in response to a question from Chair Weyhrauch,
explained that the fiscal note was called for this morning at
7:30 a.m. and [is not yet available].
Number 1275
CHAIR WEYHRAUCH said the committee would set HB 496 aside until
a fiscal note is available.
Number 1284
REPRESENTATIVE COGHILL indicated that the words "shall" and
"may" [are both used in regard to the appointments made by the
election supervisors]. He noted, "That would be optional for
the youth." He offered his understanding that the issue of pay
may be addressed in the bill; therefore, he said he would be
considering that when he receives the fiscal note.
[HB 496 was taken up again later in the meeting.]
HB 327-POWERS/DUTIES DOTPF
[Contains brief mention of SB 371.]
Number 1312
CHAIR WEYHRAUCH announced that the next order of business was
HOUSE BILL NO. 327, "An Act relating to the powers and duties of
the Department of Transportation and Public Facilities; and
repealing a requirement that public facilities comply with
energy standards adopted by the Department of Transportation and
Public Facilities."
Number 1335
REPRESENTATIVE HOLM asked if the committee had previously
adopted [CSHB 327(TRA)].
Number 1350
CHAIR WEYHRAUCH responded, "So moved, and I'll object for
discussion purposes."
REPRESENTATIVE HOLM, speaking as sponsor of HB 327, invited a
representative from the Department of Transportation & Public
Facilities to address the sectional analysis for the committee.
Number 1372
JEFF OTTESEN, Director, Division of Program Development,
Department of Transportation & Public Facilities, noted that Jim
Cantor from the Department of Law is available to answer any
legal questions that may arise. He stated his belief that the
proposed legislation is important to the state; it potentially
could ensure that transportation projects are accomplished in
the coming years that otherwise might be subject to litigation.
MR. OTTESEN, speaking to the prepared sectional analysis, noted
that he would not address Sections 3, 6, and 7, which he
described as housekeeping sections that are "the first look at
DOT&PF's power and duties in 30 years" and the changes that have
taken place in that time. He stated that the substantive
portions of the bill have two purposes: One is to ensure that a
specific road and bridge project known as the Iliamna to
Nondalton is not subject to endless planning and litigation. He
told the committee that this project has been started and
stopped since the mid 1970s and currently is under a preliminary
injunction, because the judge found that the state had not
"followed a particular aspect of the planning of statute in
question." The second [purpose], he noted, is to make the
planning process more efficient by eliminating duplication
between federal and state law and to [remove] provisions that
subject other projects to the same type of litigation
surrounding the Iliamna to Nondalton project.
MR. OTTESEN stated that Section 1 is recommended to DOT&PF by
the Department of Law. Section 1, particularly coupled with
Section 8, ensures that "the law will directly apply to the
subject project currently before the superior court in
Anchorage." Section 2, he noted, applies to the statutory
requirement that existed when [DOT&PF] was the Department of
Highways, prior to the merger of "highways and public works."
He said [Section 2] clarifies that the requirement for a program
of projects is a piece of the overall program of projects now
required at AS 44.42.050. Furthermore, it would change the
timing from annual to periodic.
MR. OTTESEN said Section 4 of the bill applies to the state's
requirement for a multi-modal transportation plan and clarifies
that the plan is comprised of many different documents - perhaps
as many as 80 or 100. He emphasized that this is a key point.
He offered examples. Furthermore, he noted that [Section 4]
sets the standard for planning to be the federal standard,
"primarily at [23 U.S.C. 135]." He noted that the committee
packet includes "several documents that help describe just how
significant those steps are." He noted one of the documents is
from a Power Point presentation and describes the federal
process. He offered his understanding that there is also a
chart that describes the growth in federal law that applies to
transportation planning. He stated that the transportation
planning process is not static, but continues to become more
cumbersome and process-driven.
Number 1555
REPRESENTATIVE HOLM said Mr. Ottesen mentioned something to him
yesterday that he thought may be of interest to the committee:
He recollected that Mr. Ottesen had indicated that [the
Transportation Equity Act: a Legacy for Users] (TEA-LU), which
was recently passed through the [House Transportation Standing
Committee] was over 500 pages in length.
MR. OTTESEN replied yes. He explained that TEA-LU is the House
version of the reauthorization of the transportation program at
the federal level and is over 500 pages in length. The
companion bill on the Senate side, known as [the Safe,
Accountable, Flexible and Efficient Transportation Equity Act of
2004] (SAFETEA) is also over 500 pages in length. He said that
he has read both bills from cover to cover and there are "hardly
ten pages in them that [are] in common."
Number 1592
REPRESENTATIVE BERKOWITZ asked how the permissive "may" in the
language of state statute intersects with the requirement of
23 U.S.C. 135 and the supremacy clause of the U.S. Constitution.
He said it seems to him that [the legislature] cannot optionally
decided whether or not to follow federal law.
MR. OTTESEN replied that the name was chosen because
23 U.S.C. 135 applies to surface transportation, primarily
ferries, transit, highways, and trails. It does not apply to
aviation, ports and harbors, and "some of the other modes that
we're also responsible for." He stated, "We could not find
comparable sections in federal law for those modes not covered
by 23 U.S.C. 135." He explained as follows:
Saying "shall" would then lead to the conclusion that
we must apply the surface transportation (indisc. -
paper shuffling) programs to modes of transportation
which they are not directed to do. The truth is, if
this entire section was extinguished from the state
law, we would still have to comply with 23 U.S.C. 135,
where it is applicable; it's simply a requirement of
our federal funds.
REPRESENTATIVE BERKOWITZ asked what would happen if
23 U.S.C. 135 is amended subsequently. He asked, "Aren't we
adopting, by reference, the possibility of future changes?"
MR. OTTESEN answered that's true. He said he thinks changes are
anticipated. He said, "I know the bill that's in [U.S.
Congress] right now will almost undoubtedly have changes in it
from the current statutes at the federal level. I'd have to go
back and look at that. I thought we'd said, 'as amended', or
'as modified'."
REPRESENTATIVE BERKOWITZ stated for the record that he is
uncomfortable with "adopting by reference" federal statutes or
any other statutes that are subject to change. He added, "It
seems to me it's an abrogation of our legislative power."
MR. OTTESEN returned to his coverage of the sectional analysis.
Section 5 of the bill, he noted, applies to eliciting a project
slated to be set up for design and construction. He noted that
those projects are called: the Statewide Transportation
Improvement Program (STIP), regarding highways; the
Transportation Improvement Program for urban areas (TIP),
regarding programs prepared by Metropolitan Planning
Organizations (MPOs) in Fairbanks and Anchorage; and the
Aviation Improvement Program (AIP), regarding the use of
aviation funding. He said the department basically wants to set
up state law to comply with the several aspects of federal law.
MR. OTTESEN turned to Section 8, which he said makes HB 467
retroactive to the time that AS 44.42 was first adopted. He
explained that this section of statute was adopted by executive
order, not as a matter of a legislative Act. He stated that
Section 9 makes the effective date immediate.
Number 1743
MR. OTTESEN pointed to a write-up regarding why the section on
cost and benefits should not be mandatory. He returned to the
Power Point presentation and the examples in the growth of laws
that have applied to the federal side since 1977 "and earlier."
He also indicated a matrix of "the requirement, the
consultation, and public outreach in the transportation planning
process." He noted that there are about seven or eight
different laws that [the department] has to comply with, and
virtually all of them apply to the STIP process. Many of the
laws are new since 1977. He concluded, "Pointing to the federal
process, or simply even extinguishing this particular law, would
not leave us without a significant public process and planning
requirement that we have to live with."
Number 1775
CHAIR WEYHRAUCH stated his understanding that a specific case
"brought [DOT&PF] here." Notwithstanding that, he observed that
HB 467 is a broad bill that would change a lot of DOT&PF's
policies. He asked, "If we're worried about the bridge or the
road on that case, why don't we just deal with that?"
MR. OTTESEN explained that he thinks the department fears that
there are many other projects that are currently at risk.
CHAIR WEYHRAUCH indicated that people have expressed concern to
him that "this is abrogating the public involvement in a process
that [DOT&PF] is engaged in." He mentioned cost benefit
analysis and a broad array of projects.
MR. OTTESEN, regarding cost benefit analysis, stated that the
current law requires the department to do a cost benefit
analysis for any new project or facility. He said, "It
unfortunately leads to the law of unintended consequences." For
example, he said last week the department considered vans for
the elderly and the disabled. Every community has a different
set of facts and costs and the department will have to do a cost
benefit analysis in order to issue the vans to "those 12 report-
paying communities." He explained that [doing the cost benefit
analysis] will slow down the process, as well as cost more
money. He said the department knows that whether there are 10,
100, or 1,000 seniors in a community, vans will be needed to
transport them to various activities. He said, "Those are the
kinds of projects that simply don't lend themselves to cost
benefit analysis." He continued as follows:
Trails, transit, ferries are never undertaken with
cost benefit analysis. If we were to compare ferries
to roads - where it's possible to build roads - we
would almost inevitably come up with a completion that
the road is the right solution, or that the ferry ...
in Southeast is not warranted because a new road in
another part of the state would have more benefits.
So, it's a slippery slope we walk on when we require
cost benefit [analyses] in all cases.
Number 1862
REPRESENTATIVE BERKOWITZ said he would like to know more about
the need for retrospectivity.
MR. OTTESEN deferred to Mr. Cantor.
JAMES CANTOR, Transportation Section, Civil Division
(Anchorage), Department Of Law, told Representative Berkowitz
that retrospectivity addresses a couple of issues. He continued
as follows:
One is on the Iliamna [to] Nondalton road, where costs
were not ignored, but there was not a cost benefit
weighing, because it's a rural project where it may
not be susceptible to that kind of analysis. And the
court said, "No, the state law says you must use cost
benefit analysis."
Now, the type of analysis that was done on that case
was through the federal process - which ... is the 500
pages of ISTEA [Intermodal Surface Transportation
Efficiency Act of 1991] or TEA-21 [Transportation
Equity Act for the 21st Century - 1998], and now TEA-
LU - that sends us through an inordinate amount of
analysis and public process, but not cost benefit
analysis. The cost benefit analysis is left over from
this executive order, during the [Governor] Hammond
administration, that became law. And so, part of the
retrospectivity is addressed specifically to that
case, to essentially overrule the judge and continue
proceeding with that project.
The remainder of the retrospectivity looks at projects
that we thought were appropriately and legally
conducted using federal money over the last 20 years,
or so, and other ones that are still in the pipeline.
It's kind of similar to what Mr. Ottesen was saying,
[regarding] the types of incidences that are not
susceptible to cost benefit analysis.
REPRESENTATIVE BERKOWITZ asked Mr. Cantor to review the status
of "the case that necessitates these actions."
MR. CANTOR offered his understanding that the superior court
issued a preliminary injunction on the basis of this cross
benefit language, and the state has "gone back to comply with
the order to conduct that analysis."
Number 1968
JEFF PARKER, Attorney at Law, informed the committee that he is
representing the plaintiffs in Trout Unlimited and Bob Gillam v.
ADOT&PF. He noted that the state has advised the court "in its
papers" that it will complete its cost benefit analysis by July.
REPRESENTATIVE BERKOWITZ asked, "Why are we jumping in the
middle of a court case?"
MR. CANTOR offered his understanding that [DOT&PF] is concerned
that "this case could be litigated forever." He noted, "This is
the second piece of litigation on this project - it was first
litigated in about 1996 or 1997." He indicated that there is
concern that even the department's attempts to comply will be
litigated. He stated, "The department believes that even its
attempts to comply - and it hopes to comply fully - are ones
that are unnecessary to the planning process, which is why
they've backed up and taken kind of a broader view." In
response to questions from Representative Berkowitz, he said the
first case was a federal case and the second case has not yet
reached the supreme court. He said there is not an appeal
pending, because currently the case is still in court. He
proffered that there was a preliminary injunction motion and
there could be further proceedings, "depending on the next
steps."
REPRESENTATIVE BERKOWITZ asked how long the second case has been
proceeding.
Number 2053
MR. PARKER said the case has been pending for approximately 18
months, for discovery and pretrial practice. In response to a
follow-up question from Representative Berkowitz, he noted that
the motion was issued January 6, 2004, about two months after
argument. He announced he would like to fully address the
question of project delays. He noted that Mr. Ottesen had
previously stated that the project has been delayed since the
1970s. In fact, he said, the department suspended the project
in 1986 after doing a cost benefit analysis and concluding that
[the project] was not economically justified. He indicated that
the benefit cost ratio [from that analysis] "worked out at 0.26"
and the department judged that it is not "normal" to build a
project with a benefit cost ratio of less than one. He noted,
"The costs were in excess of $12 million to complete the
project; the benefits were calculated at $3 million."
MR. PARKER CONTINUED as follows:
Now also, in response to the large picture of what Mr.
Cantor and Mr. Ottesen just said, if you look in a
regional Southwest transportation plan, you'll see
that the defendants, [DOT&PF], did cost effectiveness
[analyses] on every ... new road project that is
proposed in that plan, including the Williams Port,
West side Cook Inlet to ... King Salmon and King
Salmon to the Chignik (ph). And you can calculate and
see the cost effectiveness dollars right there.
What caught them up in this case was that they
excluded this project from that cost effectiveness
analysis. And if you read the court's opinion with a
decision, which I think you have in front of you,
you'll see that the court says that [the department]
did cost effective [analyses] for every other project
in the Southwest regional transportation plan. It
similarly did it for projects - all new facilities -
in the Prince William Sound regional transportation
plan and in the Southeast Alaska regional
transportation plan. And Mr. Ottesen can correct me,
but I think it also did them for marine-improved new
facilities and new vessels, when you look at those
plans.
So, the information has been put in front of you for
many projects, and it is an excellent basis upon which
to make decisions. And what this bill is: this bill
eliminates putting that information in front of you.
And what caught [the department] up in the [Iliamna to
Nondalton] case is its affirmative decision not to do
cost benefit [analyses], and I surmise it so decided
because there was such a negative determination made
in 1986 - that it had a 0.26 and you never build at
less than one.
Number 2207
DEE ESSERT testified on behalf of Sand Lake Community Council in
opposition to amending the state's transportation statute, AS
44.42.050, which would eliminate the state's obligation to
review the cost of improvements to existing roads and the cost
and benefits to new roads. She explained the opposition was due
to her experience with Anchorage Metropolitan Area
Transportation Solutions (AMATS), the local MPO. She stated
that the cost of AMATS projects have escalated because engineers
and project managers have failed to consider hidden costs
[resulting from] soils, environmental impacts, and property
impacts.
MS. ESSERT continued as follows:
Why is the state seeking to eliminate a key statutory
requirement at state level that would control costs,
when it has initiated policies at the local level to
address costs? The cost overruns for Anchorage
projects initiated a change by state [DOT&PF], whereby
the policy committee of AMATS is now required to
provide quarterly obligation reports. As a project
increases funding for a phase by more than $500,000,
or 50 percent of the project phase, the city must
approve the change. At the March 11 policy committee,
members were asked to approve approximately $3 million
to cover additional construction costs for C Street -
phase three - due to extensive peat deposits in the
right-of-way. If there had been a better cost benefit
analysis of C Street, would the initial design or
right-of-way have changed to allow for greater
economy?
I am also among many who oppose the coastal trail
extension below the buffer in the refuge. The project
has risen from $12 million to $37 million as the cost
of the environment and private property is escalated.
The [Draft Environmental Impact Statement] (DEIS) is
an example of a politically motivated document and
does not reflect accurate billable costs, because
there is no objective cost benefit analysis.
Engineers and attorneys who have considered the legal
and construction costs estimate the cost in the $60-
million to $80-million-range.
House Bill 327 eliminates the public claim that costs
and benefits must be considered. Projects in remote
areas are subject to greater cost overruns. When
federal dollars are declining and state resources are
limited, it makes no sense to eliminate the only
objective criteria applicable to transportation
planning. With the new administration that is
emphasizing resource development, transportation
planning in remote areas must be cost-effective and
accountable. Transportation projects in metropolitan
areas must emphasize traffic flow, air quality, and
safety, and serve vehicular traffic, public transit,
and pedestrians; it must not be based on Bush's
entrails exclusively.
The state must allocate scarce resources for those
projects that provide the greatest benefit for the
most reasonable cost. With appropriate cost benefit
criteria, a change in administration won't mean a
bridge to nowhere .... In a time of declining
revenues, the state must retain all statutory
requirements that preserve an orderly transportation
system by subjecting all subjects to a cost benefit
analysis. I oppose HB 327 and its companion SB 371.
Number 2345
CHAIR WEYHRAUCH asked Ms. Essert if there is any part of HB 327
that she does not oppose.
MS. ESSERT replied that it is a complex bill. She said that
when she began studying the bill, she thought it was about
energy requirements, but when she got into it, she became more
confused about certain sections of it. She indicated that she
would [limit] her comments [to those parts of the bill
regarding] cost benefit analysis. In response to a follow-up
question from Chair Weyhrauch, she clarified where the Sand Lake
Community Council area is.
Number 2348
MARY WHITMORE testified on behalf of herself to address two
sections in the bill regarding the issues of cost benefits and
retroactivity. She stated her belief that HB 327 is really a
"slap in the face to American tax payers," because it removes
the economic analysis, [which is how] projects should be
evaluated.
TAPE 04-47, SIDE B
Number 2378
MS. WHITMORE opined that economic competitive analyses of
projects is really a driving force in how projects should be
done, and also "it's the way our economy works." She explained,
"You have to look at the competitive basis of projects." Ms.
Whitmore said HB 327 is insulting and detrimental to every
Alaskan, because it means that projects will not be considered
for benefits and costs to the community, but will be influenced
by whim and political clout. She said she'd like to know what
the justification is for this.
MS. WHITMORE continued as follows:
I find that HB 327 is offensive, because it raises my
suspicions of why a bill would be retroactive to 1977
- 27 years. This means that any person who's raised
any objection to a transportation plan over the last
27 years is cut out if the basis of that dispute is
based on cost. There's something very wrong with this
approach. I think that HB 327 gives the green light
to any project. No matter how poorly conceived it is,
it could go forward. If it has political backing or
clout, you never have to look at the measure [of] the
project, as far as its benefits to the community and
how much it's going to cost.
MS. WHITMORE urged the committee not to pass HB 327 but,
conversely, to bury it.
Number 2302
BOB DOLL told the committee that although he is a former
director of the Southeast region of [DOT&PF] and speaks from
that viewpoint, he is testifying on behalf of himself. He asked
the committee to withhold support from those portions of HB 327
that would delete the cost benefit analysis in transportation
planning. He continued reading his testimony as follows:
I make this request with some understanding of the
dilemma you face. You're being asked, in this bill,
to endorse bad government. You're being asked to lend
your support to enshrining the terms "arbitrary" and
"capricious," not as accusations to be avoided but as
the standard for government decision-making. I have
appeared before the committee only recently in
connection with another such arbitrary and capricious
decision, and my apprehension of such events is all
too clear.
And what is it that the bill seeks to avoid? I cannot
imagine an economist with an ounce of imagination who
could not make a positive cost benefit conclusion for
a marginal project, if that were his tasking. Such
"taskings" are accomplished routinely. Only with the
most worthless proposals would he fail, and properly
so.
The current statute does not provide us with certainty
regarding the value of a project, but it does offer
some objective criteria for us to use in examining how
our tax dollars are being spent. And given the
general deference of courts to executive agencies
which have complied with their own regulations and the
statutes in effect at the time, it is difficult to
understand why this requirement is so onerous.
Federal dollars pay for the work and the time required
is measured in months. In the timeline for most
transportation projects that's inconsequential. As a
transportation professional, I would not want to spend
my time, or that of my staff, on a project which could
not meet this simple test. As a citizen, I hope that
public money will not be thus squandered on a project
which could not meet that test.
Number 2226
MR. DOLL pointed out that federal dollars pay for "this whole
thing"; there is no imposition on the state for it. He
continued reading his testimony as follows:
The dilemma that I mentioned earlier arises because
there are transportation projects currently under
consideration that may not meet this test. Those
projects represent some of the most cherished hopes
and dreams of the residents of the locations where
they're contemplated. If their ambitions are not
realized, they would be, to say the least,
disappointed.
I would suggest to you that you could measure the
value of the project inversely to the protest at
having it examined closely. In fact, if a positive
cost benefit ratio is as easily achieved as I've
suggested to you, you may well wonder why anyone would
object to the requirement, particularly since it does
not require that the project be positive in its cost
benefit analysis. It only requires that that
information be produced so that the public and you, as
members of the legislature, can see it as well. HB
327 endorses bad government and ... should not receive
the committee's approval.
Number 2150
CHAIR WEYHRAUCH asked Mr. Doll if he conducted cost benefit
analyses for projects when he was director.
MR. DOLL answered, "Yes, Mr. Chairman, with the exceptions that
Mr. Ottesen has mentioned, we did, routinely. ... I believe
that whatever difficulty [DOT&PF] may have with this, they have
ample opportunity to overcome it." He suggested that if the
department were to encounter a project that obviously doesn't
require a cross benefit analysis - such as Mr. Ottesen's
previously stated example of "the transit case" - it would be a
simple matter to provide a two-page statement explaining that
the analysis is unnecessary. He surmised that is all that would
be required.
Number 2128
CHAIR WEYHRAUCH observed that although part of the Southeast
transportation plan indicated that it would be less expensive to
have a road than a ferry, "we didn't move forward too quickly on
the road north from Juneau."
MR. DOLL responded that writing a cost benefit analysis for that
project would be a task. He stated that he is not certain that
anyone should ever do a cost benefit analysis that compares
water transportation with land transportation, because the two
are so different that the conclusions reached would be
questionable. He added, "But I'm sure we could do it, and have
done it."
Number 2090
REPRESENTATIVE HOLM asked Mr. Doll why he didn't testify on this
issue before the House Transportation Standing Committee.
MR. DOLL responded that he had been unaware of [that committee's
meeting].
Number 2074
REPRESENTATIVE SEATON told Mr. Ottesen that the second point
made in the handout from Mr. Parker [available in the committee
packet] states that passage of HB 327 would increase the
likelihood that the state will have to refund money to the
federal government. He asked Mr. Ottesen if he is familiar with
that argument and would address it.
Number 2053
MR. OTTESEN replied, "I don't know the reason he's making that
statement, so no, I don't ... see the connection."
REPRESENTATIVE SEATON suggested that Mr. Ottesen could review
the handout from Mr. Parker and respond to the question at a
later date.
Number 2030
CHAIR WEYHRAUCH, in response to a question from Representative
Berkowitz, stated his intention for the bill is to not take
action on HB 327 until the next time the committee hears the
bill. He revealed that a lot of people have voiced their
concerns about the bill with him. He said he wants to air those
concerns and "talk about how sensitive the sponsor is to
amending it."
Number 2006
REPRESENTATIVE BERKOWITZ noted that he has amendments in mind,
as well. He stated his intent is to basically strip [the bill]
down to "just the housekeeping."
[HB 327 was heard and held.]
HB 496-YOUTH VOTE AMBASSADOR PROG/ELECTION BDS
CHAIR WEYHRAUCH returned to HOUSE BILL NO. 496, "An Act creating
the Youth Vote Ambassador Program and relating to that program;
authorizing the members of the program to be appointed to serve
on election boards; relating to qualifications for appointment
to election boards; and providing for an effective date."
Number 1981
CHAIR WEYHRAUCH said he believes that Representative Seaton had
made the motion to move CSHB 496, Version 23-LS1766\H, Kurtz,
3/25/04, [from committee]. He asked if Representative Seaton
wanted to maintain his motion.
REPRESENTATIVE SEATON expressed concern that the fiscal note
isn't accurate because he didn't see how there could be
additional employees in many places and have a zero fiscal note.
Therefore, Representative Seaton withdrew his motion.
Number 1954
REPRESENTATIVE COGHILL moved to report CSHB 496, Version 23-
LS1766\H, Kurtz, 3/25/04, out of committee with individual
recommendations and the accompanying zero fiscal note.
REPRESENTATIVE BERKOWITZ pointed out that if the committee
doesn't agree with the fiscal note, it can move to amend it.
REPRESENTATIVE COGHILL opined that the permissive language
doesn't demand that new people are hired. He further opined
that there is a lot of flexibility, and therefore he accepted
the zero fiscal note.
CHAIR WEYHRAUCH inquired as to the difference between a zero
fiscal note and an indeterminate fiscal note.
REPRESENTATIVE BERKOWITZ interjected, "An indeterminate fiscal
note goes to the Finance Committee."
Number 1907
CHAIR WEYHRAUCH asked if it's possible that since it's
discretionary to pay [for the members of the youth ambassador
program], the fiscal note may be indeterminate.
LEONARD JONES, Elections Special Assistant, Division of
Elections, Office of the Lieutenant Governor, stated that the
division, in talking with its regional supervisors, believes the
cost of these workers can be absorbed. Furthermore, the
division doesn't foresee any additional impact.
REPRESENTATIVE SEATON said that he didn't see at all that this
is discretionary with regard to whether these [youth
ambassadors] are compensated. He pointed out that page 2, lines
10-12, read: "(d) A member of the program who is appointed
under (c) of this section is compensated as provided in AS
15.15.380 only for service on the election board of the
precinct." Therefore, the discretion is with regard to whether
any [youth ambassadors] are hired or not.
CHAIR WEYHRAUCH said he understood. However, he understood
Representative Coghill to be referring to the language on page
2, line 26, which specifies "may appoint". Therefore, there
seems to be a conflict between the "is compensated" language and
the "may appoint" language. He related his understanding that
the election board is given the discretion to do this if the
funds are available. If the funds are available, the election
board "may appoint" these individuals and will compensate them.
REPRESENTATIVE BERKOWITZ withdrew his objection.
Number 1825
CHAIR WEYHRAUCH announced that there being no objection, CSHB
496(STA) was reported out of the House State Affairs Standing
Committee.
The committee took an at-ease at 9:05 a.m. to set up for the
overview on the Department of Military & Veterans' Affairs. See
9:09 a.m. minutes for this date.
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