Legislature(1999 - 2000)

03/16/1999 08:06 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
       HOUSE STATE AFFAIRS STANDING COMMITTEE                                                                                   
                   March 16, 1999                                                                                               
                     8:06 a.m.                                                                                                  
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative Jeannette James, Chair                                                                                           
Representative John Coghill                                                                                                     
Representative Scott Ogan                                                                                                       
Representative Jim Whitaker                                                                                                     
Representative Beth Kerttula                                                                                                    
Representative Harold Smalley                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
Representative Bill Hudson                                                                                                      
                                                                                                                                
OTHER HOUSE MEMBERS PRESENT                                                                                                     
                                                                                                                                
Representative Sharon Cissna                                                                                                    
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
HOUSE JOINT RESOLUTION 18                                                                                                       
Proposing an amendment to the Constitution of the State of Alaska                                                               
relating to an office of administrative hearings.                                                                               
                                                                                                                                
     - MOVED CSHJR 18 (STA) OUT OF COMMITTEE                                                                                    
                                                                                                                                
HOUSE JOINT RESOLUTION 21                                                                                                       
Relating to new evaluation and selection criteria for military base                                                             
realignment and closure actions.                                                                                                
                                                                                                                                
     - MOVED HJR 21 OUT OF COMMITTEE                                                                                            
                                                                                                                                
(* First public hearing)                                                                                                        
                                                                                                                                
CONFIRMATION HEARING                                                                                                            
                                                                                                                                
State Commission for Human Rights                                                                                               
                                                                                                                                
     Ruth Benson - Fairbanks                                                                                                    
                                                                                                                                
     - CONFIRMATION POSTPONED                                                                                                   
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: HJR 18                                                                                                                    
SHORT TITLE: CONST. AM: ADMINISTRATIVE HEARINGS                                                                                 
SPONSOR(S): REPRESENTATIVES(S) OGAN, Foster, Dyson, Rokeberg                                                                    
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/24/99       300     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 2/24/99       300     (H)  STA, JUD, FIN                                                                                       
 2/26/99       328     (H)  COSPONSOR(S): FOSTER                                                                                
 3/04/99               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
 3/04/99               (H)  HEARD AND HELD                                                                                      
 3/05/99       377     (H)  COSPONSOR(S): DYSON, ROKEBERG                                                                       
 3/09/99               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
 3/09/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 3/16/99               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
                                                                                                                                
BILL: HJR 21                                                                                                                    
SHORT TITLE: MILITARY BASE REALIGNMENT/CLOSURE ACTIONS                                                                          
SPONSOR(S): REPRESENTATIVES(S) MULDER, Murkowski, Kott, James,                                                                  
Phillips,                                                                                                                       
Foster                                                                                                                          
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/26/99       323     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 2/26/99       324     (H)  MLV, STA                                                                                            
 3/09/99               (H)  MLV AT  4:30 PM SENATE FINANCE 532                                                                  
 3/09/99               (H)  MOVED OUT OF COMMITTEE                                                                              
 3/10/99       406     (H)  MLV RPT  5DP                                                                                        
 3/10/99       407     (H)  DP: MURKOWSKI, KOTT, JAMES, FOSTER,                                                                 
 3/10/99       407     (H)  PHILLIPS                                                                                            
 3/10/99       407     (H)  ZERO FISCAL NOTE (H.MLV)                                                                            
 3/10/99       407     (H)  REFERRED TO STA                                                                                     
 3/10/99       417     (H)  COSPONSOR(S): MURKOWSKI, KOTT, JAMES                                                                
 3/10/99       417     (H)  PHILLIPS, FOSTER                                                                                    
 3/16/99               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
REPRESENTATIVE SCOT OGAN                                                                                                        
Alaska State Legislature                                                                                                        
Capitol Building, Room 128                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-3878                                                                                                      
POSITION STATEMENT:  Presented HJR 18                                                                                           
                                                                                                                                
TERESA WILLIAMS, Assistant Attorney General                                                                                     
Fair Business Practices Section                                                                                                 
Civil Divisions                                                                                                                 
Department of Law                                                                                                               
1031 West Fourth Avenue, Suite 200                                                                                              
Anchorage, Alaska  99501                                                                                                        
Telephone:  (907) 269-5100                                                                                                      
POSITION STATEMENT:  Testified in opposition to HJR 18.                                                                         
                                                                                                                                
REPRESENTATIVE ELDON MULDER                                                                                                     
Alaska State Legislature                                                                                                        
Capitol Building, Room *507                                                                                                     
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2647                                                                                                      
POSITION STATEMENT:  Presented HJR 21.                                                                                          
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-15, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIR JEANNETTE JAMES called the House State Affairs Standing                                                                   
Committee meeting to order at 8:06 a.m.  Members present at the                                                                 
call to order were Representatives James, Coghill, Ogan, Whitaker,                                                              
Kerttula and Smalley.                                                                                                           
                                                                                                                                
HJR 18-CONST. AM: ADMINISTRATIVE HEARINGS                                                                                       
                                                                                                                                
CHAIR JAMES announced HJR 18, Proposing an amendment to the                                                                     
Constitution of the State of Alaska relating to an office of                                                                    
administrative hearings is before the committee.                                                                                
                                                                                                                                
Number 0015                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN mentioned that the Administration repeatedly                                                                
said that the administrative hearing law judges would thwart the                                                                
ability of the Administration to set policy.  He said that the                                                                  
policy is set by regulation and that administrative law judges will                                                             
interpret that legislation very much like the Alaska Supreme Court                                                              
interprets Alaska statutes.                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN referred to the comment that HJR 18 also                                                                    
creates the fourth branch of government.  He indicated that the                                                                 
fourth branch of government is the bureaucracy .  Representative                                                                
Ogan further stated that, "There's no separation of powers, the due                                                             
process is cloudy at best, and I feel very strongly that this                                                                   
approach would at least create some fairness in due process to that                                                             
fourth branch of government that the legislature has created                                                                    
through statute."                                                                                                               
                                                                                                                                
REPRESENTATIVE OGAN offered Amendment 1 which reads:                                                                            
                                                                                                                                
     Page 1, line 1:                                                                                                            
     Delete: "an amendment"                                                                                                     
     Insert: "amendments"                                                                                                       
                                                                                                                                
     Page 1, following line 13:                                                                                                 
     Insert a new section to read:                                                                                              
                                                                                                                                
     "*Sec.2. Article XV, Constitution of the State of Alaska, is                                                               
     amended by adding a new section to read:                                                                                   
                                                                                                                                
     Section 30. Application of Amendment Relating to                                                                           
     Administrative Hearings.  The 2000 amendment relating to                                                                   
     administrative hearings made in Section 28 of Article III                                                                  
     applies only to administrative hearing begun on or after                                                                   
     July 1, 2002."                                                                                                             
                                                                                                                                
     Renumber the following section accordingly.                                                                                
                                                                                                                                
     Page 1, line 14:                                                                                                           
     Delete: "amendment"                                                                                                        
     Insert: "amendments"                                                                                                       
                                                                                                                                
REPRESENTATIVE OGAN explained that Amendment 1 would extend the                                                                 
effective date two years after the constitutional amendment is                                                                  
passed which would give the Administration and the legislature time                                                             
to implement the statutes and the program.                                                                                      
                                                                                                                                
Number 0080                                                                                                                     
                                                                                                                                
CHAIR JAMES asked whether there was any objection to the amendment.                                                             
There being none, Amendment 1 was adopted.                                                                                      
                                                                                                                                
REPRESENTATIVE KERTTULA said that Ms. Cook, [Director, Legal and                                                                
Research Division, Legislative Affairs Agency] said she couldn't                                                                
tell the committee what HJR 18 was going to do in terms of: was it                                                              
going to include all hearings, including correctional hearings and                                                              
all agencies.                                                                                                                   
                                                                                                                                
REPRESENTATIVE OGAN responded that the constitution is intended to                                                              
be written simplistically so that it could be interpreted rather                                                                
broadly.  The intent of the amendment is to remove the power to                                                                 
hold in-house administrative hearings and set up an independent                                                                 
agency, which is very much like the judiciary oversees Alaska's                                                                 
statues, and that the administrative law judges would adjudicate                                                                
regulations.                                                                                                                    
                                                                                                                                
REPRESENTATIVE KERTTULA said she believes that this is the "cart                                                                
before the horse."  She asked Representative Ogan if he intended to                                                             
include the judicial council, if so there would be a separation of                                                              
powers.  She also asked Representative Ogan if he intended to                                                                   
include all correctional hearings and all "good-time" hearings.                                                                 
                                                                                                                                
Number 0174                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA stressed that, "The problem with HJR 18 is                                                              
that we will run into constitutional issues and that this is too                                                                
broad as a start."  She asked what the cost would be in the long                                                                
run because she read that it cost Colorado and Maryland millions of                                                             
dollars to set up something like this.                                                                                          
                                                                                                                                
REPRESENTATIVE OGAN responded that he believes the state will                                                                   
realize millions in savings.  He said "We identified about $7                                                                   
million a year in the fiscal notes on our bill last year that we                                                                
spent for administrative adjudication process and it was a very                                                                 
difficult fiscal note to sort out and some of the agencies didn't                                                               
respond."                                                                                                                       
                                                                                                                                
REPRESENTATIVE KERTTULA said she sincerely doesn't believe that                                                                 
that's the case, HJR 18 is creating another huge bureaucracy that                                                               
has no sidebars on it.  She further stated, "I don't think that the                                                             
resolution says that you've got the administrative law judges                                                                   
deciding regulations and I think if you did you'd have another                                                                  
separation of powers issue. ... You're going to cost more money,                                                                
you're going to create another bureaucracy."                                                                                    
                                                                                                                                
REPRESENTATIVE OGAN disagreed.                                                                                                  
                                                                                                                                
CHAIR JAMES noted that Representative Cissna is present.                                                                        
                                                                                                                                
Number 0242                                                                                                                     
                                                                                                                                
TERESA WILLIAMS, Assistant Attorney General, Fair Business                                                                      
Practices Section, Civil Divisions, Department of Law, testified                                                                
via teleconference from Anchorage.  She said Representative                                                                     
Kerttula has raised some of the concerns that the Department of Law                                                             
has seen on this bill [HJR 18].  Ms. Williams further stated that,                                                              
"We've got a creation, by constitution, as was reported by                                                                      
Representative Ogan, to be broadly interpreted. Representative Ogan                                                             
himself said that he identified a number of persons within the                                                                  
Administration who carry out adjudicative functions who are not                                                                 
hearing officers, these people are not attorneys, they're people                                                                
who's career it is to adjudicate matters.  If those functions are                                                               
centralized in a central office, they could not be carried out by                                                               
the 14 to 16 persons that Representative Ogan is visualizing, it                                                                
would have to be a much larger office.  In addition, that office                                                                
would have to have its own experts in order to - in any way try to                                                              
simulate the level of expertise that would be available in the                                                                  
agency where you're having a person with a lifetime of experience                                                               
adjudicating matters which are within that area of expertise."                                                                  
                                                                                                                                
CHAIR JAMES noted that she worked on the negotiated regulation                                                                  
making bill which the past last year.  She stated that the                                                                      
legislature, by the Administrative Procedures Act, has given the                                                                
authority to the Administration to provide for the Administrative                                                               
Code which is law.  Chair James also said that she has heard huge                                                               
outcries from the Administration, however, they did not come                                                                    
forward with ideas and stood pat that they are doing a good job.                                                                
                                                                                                                                
CHAIR JAMES stated that she tried to create a central location for                                                              
writing regulations by professional staff.  She mentioned that the                                                              
writers of the regulations hate it because it interferes with their                                                             
other duties and that after the regulations have been reviewed by                                                               
the Office of the Attorney General they do not come back as they                                                                
were originally written.  Chair James referred to a memorandum from                                                             
Governor Knowles which listed five or six points on how he was                                                                  
going to streamline the regulation process.  One point that was                                                                 
made was that they were to be written in plain English so that an                                                               
ordinary person could understand it.  She said that she hasn't                                                                  
noticed any difference.                                                                                                         
                                                                                                                                
Number 0315                                                                                                                     
                                                                                                                                
CHAIR JAMES stated that her biggest concern is that the people who                                                              
write the regulation should not be the people who enforce the law,                                                              
and that the people who enforce the law should not be the people                                                                
who take the appeals.  House Joint Resolution 18 is intended to fix                                                             
that.                                                                                                                           
                                                                                                                                
CHAIR JAMES indicated that she also tried to get the cost of                                                                    
writing down.  If the state had people that did nothing else but                                                                
write regulations, and that they had all the tools they needed,                                                                 
they could also schedule regulation hearings through noticing.                                                                  
                                                                                                                                
CHAIR JAMES mentioned that she hears complaints from the public                                                                 
regarding regulations.  She reiterated that most of these folks                                                                 
have no money to go to court and that whatever they get out of the                                                              
department is the end of the road for them.                                                                                     
                                                                                                                                
Number 0372                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA mentioned that she has been the attorney                                                                
for many (indisc.--coughing) agencies, worked with hearing                                                                      
officers, and has gone through this process.  She pointed out that                                                              
the agencies and the administrative hearing officers, who are                                                                   
independent of the agencies, have an ethical duty and that they                                                                 
have bent over backwards to help people, including the individuals                                                              
who don't have the money to go forward.  Representative Kerttula                                                                
said she thinks there is a misperception about independence from                                                                
the agency and believes that that needs to be looked at to be sure                                                              
to keep that integrity in the system or to bolster it where it is                                                               
necessary.                                                                                                                      
                                                                                                                                
REPRESENTATIVE COGHILL asked if HJR 18 is designed to hold agencies                                                             
accountable, and if there was an appeal, is this a final court of                                                               
appeal.                                                                                                                         
                                                                                                                                
REPRESENTATIVE OGAN replied that this is not a final court, as with                                                             
all hearing officers and adjudication of administrative law,                                                                    
citizens have the right to appeal to the superior court.  This is                                                               
simply a stop gap to that if they're not happy with the outcome.                                                                
                                                                                                                                
Number 0413                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN referred to a memorandum which was written by                                                               
a hearing officer on April 30, 1997 to then Commissioner Hensley.                                                               
Representative Ogan read the following:                                                                                         
                                                                                                                                
     It is vitally important that the hearing officer remain truly                                                              
     neutral and impartial party to that end.  The sections should                                                              
     continue to be treated separately with its own secretary and                                                               
     offices.  Offices should not be located within the physical                                                                
     parameters of the Division of Occupational Licensing since the                                                             
     tendency to engage in causal conversation is too great and any                                                             
     new office space configuration, the department should also                                                                 
     seriously consider giving the Division of Occupational                                                                     
     Licensing, boards and commissions, in the hearing officer's                                                                
     sections, their own separate hearing and meeting room.  The                                                                
     boards and commissions are forced to find various meeting                                                                  
     rooms all over town which leads to confusion of the public.                                                                
     The hearing officer section is constantly scrambling to find                                                               
     an available space which many times is not appropriate for the                                                             
     number of people involved in the hearing or the type of                                                                    
     hearing being held.  It is also disturbing for the members of                                                              
     the public to have to walk all over the building to various                                                                
     offices to find a hearing.  In several cases we have not been                                                              
     able to use our recording equipment because of disturbances                                                                
     from offices next door.  The spacious, well functioning                                                                    
     hearing and meeting room reserved for this use should be                                                                   
     included in any plans for remodeling office spaces.                                                                        
                                                                                                                                
REPRESENTATIVE OGAN said that this memorandum speaks to the                                                                     
conflict of interest.                                                                                                           
                                                                                                                                
CHAIR JAMES noted that her previous comments were not meant to be                                                               
derogatory to anyone.  She asked Representative Kerttula if she was                                                             
hired as an outside hearing officer.                                                                                            
                                                                                                                                
REPRESENTATIVE KERTTULA replied that she was serving as the                                                                     
Department of Law's attorney and that hearing officers were hired                                                               
in some cases.                                                                                                                  
                                                                                                                                
Number 0451                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL referred to experiences with families that                                                               
went through horrific circumstances when the agencies were the                                                                  
authority over them.  Quite often the people in the "hot-seat" have                                                             
felt that they are outside the loop and had no recourse and became                                                              
frustrated with the whole process.  Representative Coghill stated                                                               
that, "But their life was in the hands of these people who were                                                                 
almost in a closed loop even though they were supposed to be                                                                    
independent of each other.  And it's so frustrating when it's your                                                              
child who might be taken away based on a misunderstanding of the                                                                
charge and you can't break that loop.  And I think this would hold                                                              
an accountability to the agency and kind of separate that loop a                                                                
little bit."                                                                                                                    
                                                                                                                                
REPRESENTATIVE OGAN mentioned that Dave Stancliff, Legislative                                                                  
Assistant to Representative Ogan, spoke with Ms. Cook (Director,                                                                
Legal and Research Division, Legislative Affairs Agency), Ed Hein                                                               
(former legal drafter and now administrative a law judge for the                                                                
federal government) and Ed Felder (Colorado's chief administrative                                                              
law judge who is a nationally recognized expert on central panels),                                                             
and all agreed that the wording of this act [HJR 18] does not                                                                   
prohibit exemptions for certain agencies.  The intent is to allow                                                               
the legislature to have some latitude when the statutes are drafted                                                             
on who is in and who is out because there are some inherent                                                                     
conflicts with the judicial council.  He said he could recognize                                                                
that that could be a separation of powers and it would be                                                                       
appropriate if they weren't included.                                                                                           
                                                                                                                                
REPRESENTATIVE OGAN further stated that all the parties agreed that                                                             
HJR 18 doesn't create a fourth branch of government and that it                                                                 
preempts the executives' ability to carry out policy because the                                                                
Administration has the ability to write policy in the regulation.                                                               
He said they also do not agree that the language interferes with                                                                
the judicial branch, especially if we have the latitude to exclude                                                              
the judicial council.                                                                                                           
                                                                                                                                
Number 0493                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL moved to report HJR 18 as amended out of                                                                 
committee with individual recommendations and the accompanying                                                                  
fiscal notes.                                                                                                                   
                                                                                                                                
REPRESENTATIVE KERTTULA objected.                                                                                               
                                                                                                                                
Upon a roll call vote, Representatives Coghill, Whitaker, James and                                                             
Ogan voted in support of moving HJR 18.  Representatives Smalley                                                                
and Kerttula voted against it.  Therefore, CSHJR 18(STA) passed by                                                              
a vote of 4-2.                                                                                                                  
                                                                                                                                
HJR 21-MILITARY BASE REALIGNMENT/CLOSURE ACTIONS                                                                                
                                                                                                                                
Number 0507                                                                                                                     
                                                                                                                                
CHAIR JAMES announced HJR 21, Relating to new evaluation and                                                                    
selection criteria for military base realignment and closure                                                                    
actions, sponsored by Representative Mulder, is before the                                                                      
committee.                                                                                                                      
                                                                                                                                
REPRESENTATIVE MULDER explained that HJR 21 emphasizes the                                                                      
strengths of Alaska's bases for future Base Realignment and Closure                                                             
(BRAC) processes.  The joint task force for military bases in                                                                   
Alaska met during the interim and proposed this resolution.                                                                     
                                                                                                                                
REPRESENTATIVE MULDER noted that the task force met with various                                                                
members within the Pentagon, Alaska's military leaders, and other                                                               
experts and concluded that if congress was going to go through                                                                  
another round of base realignment and closure, they really needed                                                               
to update their criteria from which they make those decisions.  The                                                             
BRAC process was impaneled in the early 80s and had established a                                                               
number of criteria, but the most important item was cost which was                                                              
a very harmful criterion for Alaska.  He said that the military                                                                 
bases in the United States have changed substantively over the past                                                             
decade.                                                                                                                         
                                                                                                                                
REPRESENTATIVE MULDER referred to news events within the last                                                                   
couple of years.  He said that, "We have gone from a base-                                                                      
projection platform of having military installations outside our                                                                
country, now we've withdrawn them back mostly to within our                                                                     
country, so we now are faced with the power of projection of base                                                               
structure as opposed to a foreign deployed base structure but that                                                              
is not accounted for within the BRAC process."                                                                                  
                                                                                                                                
REPRESENTATIVE MULDER stated that HJR 21 simply calls for congress                                                              
to establish new criteria, not only focusing on cost, but also on                                                               
the importance of power projection which is very important for                                                                  
Alaska.  He indicated that most people don't understand that you                                                                
can get to most hot spots in the world as quickly, or more quickly                                                              
from Alaska than you can from the other deployment forces, for                                                                  
example, Fort Brag, North Carolina, as well as the joint mobility                                                               
and deployment.  Fort Richardson, Elmendorf Air Force Base, Fort                                                                
Wainwright and Eielson Air Force Base have joint mobility to put                                                                
the troops together to get them to a position or staging point in                                                               
an international hot spot.  He also mentioned that that criterion                                                               
was not highly ranked or placed within the criteria.                                                                            
                                                                                                                                
REPRESENTATIVE MULDER said HJR 18 requests that the Congress and                                                                
the President establish new Joint Cross-Service Groups this year to                                                             
study power projection and deployment, and also to develop a new                                                                
evaluation in selection criteria because with the new force                                                                     
structures and the new alignment of bases within the United States,                                                             
it begs the question why these criteria are not more highly valued                                                              
or established.  Representative Mulder also noted this came with                                                                
the recommendation of Senator Stevens because Senator Stevens felt                                                              
that Alaska's bases are being devalued unnecessarily.                                                                           
                                                                                                                                
Number 0573                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN moved to report HJR 21 out of committee with                                                                
individual recommendations and the accompanying fiscal notes.                                                                   
There being no objection, it was so ordered.                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
Number 0578                                                                                                                     
                                                                                                                                
There being no further business before the committee, the House                                                                 
State Affairs Standing Committee meeting was adjourned at 8:42 a.m.                                                             

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