Legislature(1999 - 2000)
03/16/1999 08:06 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
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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