Legislature(2003 - 2004)
05/06/2004 09:08 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
May 6, 2004
9:08 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
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING(S)
Commissioner of Administration
Ray Matiashowski, Deputy Commissioner - Douglas
- CONFIRMATION(S) ADVANCED
HOUSE BILL NO. 544
"An Act providing that public members of the Board of Trustees
of the Alaska Permanent Fund Corporation may be removed only for
cause; and providing for an effective date."
- MOVED CSHB 544(STA) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 354(STA) am(efd fld)
"An Act relating to complaints filed with, and investigations,
hearings, and orders of, the State Commission for Human Rights;
and making conforming amendments."
- HEARD AND HELD
CS FOR SENATE JOINT RESOLUTION NO. 33(STA)
Urging our United States Senators to work to allow a timely vote
on the floor on all judicial nominations.
- WAIVED OUT OF COMMITTEE
CS FOR SENATE BILL NO. 379(FIN)
"An Act providing that public members of the Board of Trustees
of the Alaska Permanent Fund Corporation may be removed only for
cause; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 544
SHORT TITLE: PERM FUND BOARD PUBLIC MEMBER REMOVAL
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/25/04 (H) READ THE FIRST TIME - REFERRALS
03/25/04 (H) STA
04/22/04 (H) STA AT 8:00 AM CAPITOL 102
04/22/04 (H) Heard & Held
04/22/04 (H) MINUTE(STA)
05/06/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: SB 354
SHORT TITLE: HUMAN RIGHTS COMMISSION PROCEDURES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/27/04 (S) READ THE FIRST TIME - REFERRALS
02/27/04 (S) STA, JUD
03/23/04 (S) STA AT 3:30 PM BELTZ 211
03/23/04 (S) Heard & Held
03/23/04 (S) MINUTE(STA)
04/01/04 (S) STA AT 3:30 PM BELTZ 211
04/01/04 (S) Moved CSSB 354(STA) Out of Committee
04/01/04 (S) MINUTE(STA)
04/02/04 (S) STA RPT CS FORTHCOMING 1DP 2NR
04/02/04 (S) NR: STEVENS G, STEDMAN; DP: COWDERY
04/05/04 (S) STA CS RECEIVED SAME TITLE
04/14/04 (S) JUD AT 5:30 PM BUTROVICH 205
04/14/04 (S) Scheduled But Not Heard
04/20/04 (S) JUD RPT CS(STA) 1DP 3NR
04/20/04 (S) DP: SEEKINS
04/20/04 (S) NR: THERRIAULT, OGAN, FRENCH
04/20/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/20/04 (S) Moved CSSB 354(STA) Out of Committee
04/20/04 (S) MINUTE(JUD)
05/02/04 (S) TRANSMITTED TO (H)
05/02/04 (S) VERSION: CSSB 354(STA) AM(EFD FLD)
05/03/04 (H) READ THE FIRST TIME - REFERRALS
05/03/04 (H) STA, JUD
05/04/04 (H) STA AT 8:00 AM CAPITOL 102
05/04/04 (H) Heard & Held
05/04/04 (H) MINUTE(STA)
05/05/04 (H) STA AT 8:00 AM CAPITOL 102
05/05/04 (H) Heard & Held
05/05/04 (H) MINUTE(STA)
05/05/04 (H) JUD AT 1:00 PM CAPITOL 120
05/05/04 (H) Scheduled But Not Heard
05/06/04 (H) STA AT 8:00 AM CAPITOL 102
05/06/04 (H) JUD AT 3:00 PM CAPITOL 120
WITNESS REGISTER
RAY MATIASHOWSKI, Acting Commissioner
Office of the Commissioner
Department of Administration
Juneau, Alaska
POSITION STATEMENT: Testified as appointed commissioner of the
Department of Administration.
MICHAEL BARNHILL, Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: Testified on behalf of the department
during the hearing on HB 544.
LISA FITZPATRICK, Chair
Human Rights Commission
Office of the Governor
Anchorage, Alaska
POSITION STATEMENT: Responded to committee questions on behalf
of the commission during the hearing on SB 354.
SCOTT J. NORDSTRAND, Deputy Attorney General
Civil Division
Office of the Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
354.
ACTION NARRATIVE
TAPE 04-80, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs Standing
Committee meeting to order at 9:08 a.m. Representatives Holm,
Seaton, Lynn, and Weyhrauch were present at the call to order.
Representatives Coghill, Berkowitz, and Gruenberg arrived as the
meeting was in progress.
^CONFIRMATION HEARING(S)
^Commissioner of Administration
Number 0066
CHAIR WEYHRAUCH announced the first order of business, the
confirmation hearing on the appointment of Ray Matiashowski as
Commissioner of Administration. He noted that Mr.
Matiashowski's appointment follows the resignation of
Commissioner Mike Miller.
Number 0089
RAY MATIASHOWSKI, Acting Commissioner, Office of the
Commissioner, Department of Administration, testifying as
appointed commissioner of the Department of Administration, told
the committee that he has been the Deputy Commissioner at the
department for the last 14 months. He also noted that he is a
lifelong Alaskan, born and raised in Ketchikan, who owns a real
estate firm in Ketchikan that he started in 1985.
ACTING COMMISSIONER MATIASHOWSKI revealed that the department
has several significant initiatives underway. He stated his
goal is to complete those projects. He mentioned information
technology integration and an ongoing consolidation of human
resource managers. He described the department as a catchall
agency which is primarily charged with the responsibility to
manage state government. The department conducts the back
office operations for state government; it writes payroll checks
and warrants for purchases, leases and procures items, manages
and provides the information technology for state government and
retirement and benefits for state employees. He noted that
there is another side of the department which "touches upon the
public more." He said that side includes: the Public Defender,
the Office of Public Advocacy, and the Division of Motor
Vehicles. Acting Commissioner Matiashowski said he finds the
assignment fun, exciting, challenging, and "fairly interesting."
Number 0243
CHAIR WEYHRAUCH asked, "Where are we on employee contracts?"
ACTING COMMISSIONER MATIASHOWSKI replied that he thinks the
department is doing well; it has signed six bargaining units,
and two of those have ratified, while the others remain. He
listed the bargaining units signed. He explained that as [each
bargaining unit] is signed, it is forwarded to the legislature
and to the Office of Management & Budget. He listed the
remaining [bargaining units].
Number 0333
REPRESENTATIVE HOLM asked, "Where are we in our negotiations
with the unions and employees, with regards to the [Public
Employees' Retirement System (PERS)] difficulties that we have?"
ACTING COMMISSIONER MATIASHOWSKI answered that the department
doesn't bargain on PERS and [the Teachers' Retirement System
(TRS)]. He said those are set up in statute. He added, "What
we are doing with the PERS and TRS boards right now is
undertaking a process where we are reviewing whether or not we
should set up an additional tier - a Tier IV for PERS and a Tier
III for TRS - which would lessen the liability that the
employers - the State of Alaska, the municipalities, and the
school districts have going forward." He explained that with
the defined benefit plan of PERS, the employer takes all the
risk regarding investment loss and increasing costs, such as
health care. He added, "So, we're kind of upside down on it
right now, trying to catch up." He said that's a stark contrast
to where things were in the late 1990s when "we" were going into
an over-funded status and were cutting employer contribution
rates.
Number 0430
REPRESENTATIVE SEATON noted that he had had a conversation the
other day with Acting Commissioner Matiashowski regarding
attempting to offer employees the option of a defined
contribution plan, such as the University of Alaska has. He
asked Acting Commissioner Matiashowski to comment on that.
ACTING COMMISSIONER MATIASHOWSKI said he appreciated a prior
conversation with Representative Seaton, as well as a letter
Representative Seaton had sent along with backup information
describing what the University of Alaska had done. For the
benefit of the committee, he explained that if a Tier IV is
designed, it may be a defined contribution plan, which puts the
investment risk on the employee. If a Tier IV is chosen as a
vehicle to move forward for all state employees, that can only
be done prospectively "going forward for new hires." He noted
that [in their prior conversation], Representative Seaton had
indicated the possibility of making a defined contribution plan
an elective benefit that current employees may be able to
select. He stated that that [possibility] has been analyzed
more than he realized and he is close to having a response
regarding whether or not that would be an option.
REPRESENTATIVE SEATON noted that last year the legislature moved
the Alaska Vocational Technical Center (AVTEC) in Seward from
the Department of Education and Early Development to the
Department of Labor & Workforce Development. Furthermore, the
legislature allowed anyone who was in TRS continue in that
system. He offered his understanding that current negotiations
are saying that someone who has a teaching degree who goes to
AVTEC would be required to change from TRS to PERS, because the
job doesn't require a teaching degree. He asked for an
explanation.
ACTING COMMISSIONER MATIASHOWSKI said he doesn't know what the
ultimate resolution to that is, but he will look into that.
Number 0674
CHAIR WEYHRAUCH asked what the worst thing is about the
Department of Administration.
ACTING COMMISSIONER MATIASHOWSKI responded that he couldn't
reply negatively about the department. He stated that it has
been intriguing for him to go from being a private business
owner to being a government employee again. He said when he is
in private business, he can change his mind and do something,
and by the end of the day it's happening. Conversely, when
running a department with hundreds of employees, the process of
implementing ideas takes much longer. He said he finds the
department interesting because it is so diverse.
Number 0758
REPRESENTATIVE SEATON, in regard to the consolidation of human
resources, asked if the department has looked at an analysis of
the dollars that are being charged to all the different
departments, versus the dollars that those departments were
individually expending prior to [the consolidation]. He noted
that some budget subcommittees have been charged by the
Department of Administration more than the service had cost
previously.
ACTING COMMISSIONER MATIASHOWSKI answered that money is being
saved "on a consolidated view"; the department had to show a
savings or the Office of Management & Budget would never have
allowed [the consolidation] to happen. He noted that Kevin
Jardell has been "bird-dogging" the consolidation. He offered
his recollection that the savings has been between $500,000-
$700,000 annually. He explained that all the different agencies
were brought in to the department under the Division of
Personnel. He noted that the current administration has chosen
to look at state government with an enterprise perspective,
statewide, rather than department-by-department. With the
statewide view, he explained, sometimes cost savings is achieved
as a whole, but in unique circumstances one agency may "go up
because of unique needs." He noted another consolidation has
been to centralize mail operations to within the facility in the
State Office Building. He said the department has to prove its
fiscal and financial case to each department when it undertakes
a consolidation.
Number 0888
REPRESENTATIVE SEATON asked Acting Commissioner Matiashowski to
return during the next legislative session with part of an
overview with a specific breakdown on the actual charges that
are being made to all the departments and the savings.
ACTING COMMISSIONER MATIASHOWSKI said he would love to do that.
Number 0925
REPRESENTATIVE HOLM noted that the current regulatory reform
occurring in both the House and Senate is an attempt to bring
the control for the regulatory process back to the legislature.
He asked for Acting Commissioner Matiashowski's comments with
regard to his acceptance or resistance to that move.
ACTING COMMISSIONER MATIASHOWSKI responded that he is not
familiar with that issue and would therefore have an open mind
to it.
REPRESENTATIVE HOLM surmised that the thought process is that
the Administrative Procedures Act gives too much "control for
the administration versus legislative intent."
CHAIR WEYHRAUCH asked, "If you can only do one thing while
you're commissioner, what do want to do?"
ACTING COMMISSIONER MATIASHOWSKI answered, "If I could walk out
the door with successfully signed labor contracts ... that
clearly show that we respect and appreciate the great value that
state employees give the State of Alaska, while recognizing the
fiscal constraints (indisc. - coughing), I would feel very, very
good about that." He emphasized that there is so much more that
he wants to address, but that is "the current fire burning" that
he is "anxious to have a successful conclusion to."
Number 1049
REPRESENTATIVE GRUENBERG asked if Acting Commissioner
Matiashowski, whose experience has primarily been in Southeast
Alaska, will be sensitive to the needs of all parts of Alaska.
ACTING COMMISSIONER MATIASHOWSKI answered "Yes, without
question." He said it is a great honor to be in a seat that
truly transcends where he comes from.
REPRESENTATIVE GRUENBERG asked if Acting Commissioner
Matiashowski will attempt to be sensitive and bipartisan and
work with people form both parties.
ACTING COMMISSIONER MATIASHOWSKI again answered, "Yes, without
question."
REPRESENTATIVE GRUENBERG asked Acting Commissioner Matiashowski
to reconfirm that he would be as sensitive to the needs of labor
as well as management.
ACTING COMMISSIONER MATIASHOWSKI responded, "Certainly, without
question." He stated that he feels good about the fact that six
contracts are already signed. He added, "I believe that's a
great ... show of our willingness to bargain in good faith,
which we will continue to do."
REPRESENTATIVE GRUENBERG asked Acting Commissioner Matiashowski
to remember the aforementioned questions and his answers to
them, because "the people of the state depend on you."
Number 1132
REPRESENTATIVE COGHILL thanked Acting Commissioner Matiashowski
for being willing to step up and fill the position. He
emphasized the importance of "the face of government" and making
the public comfortable with engaging its government. He
mentioned the [Division] of Motor Vehicles (DMV) and said he
would like "to see us become more consumer friendly." He asked
Acting Commissioner Matiashowski to be aware that government
tends to be difficult to engage.
ACTING COMMISSIONER MATIASHOWSKI spoke of taking great strides
towards user access so that people can interface with the
government online. For example, he mentioned applying for
driver's licenses and fishing licenses online. He acknowledged
that [the face of government] also pertains to cleaner buildings
and smiling faces, for example. He stated, "We want to make it
easy. I mean, we're here for them - for the public."
Number 1289
CHAIR WEYHRAUCH noted that Acting Commissioner Matiashowski is a
Ketchikan native with ties in that city in the real estate
market and the political scene. He mirrored Representative
Gruenberg's concern by asking the acting commissioner to confirm
that he understands clearly that he is representing the state.
He said, "Sometimes you're going to have to make decisions that
don't benefit Ketchikan and your friends and your business." He
said Acting Commissioner Matiashowski may actually have to make
decisions that may harm them and it would be difficult to do.
ACTING COMMISSIONER MATIASHOWSKI agreed that it would be hard to
do, but he stated that he takes the position of commissioner
quite seriously. He said, "I'm painfully aware of the
responsibility I take on as becoming commissioner of the
department.
CHAIR WEYHRAUCH explained that he asked because there was a
contentious issue that occurred this year in moving the Alaska
Marine Highway System [to Ketchikan]. He mentioned leases that
the department had to sign and real estate issues. He said, "I
imagine there's a lot of people in Ketchikan that may believe
now they have a friend in the Department of Administration and
... you may have to say no."
ACTING COMMISSIONER MATIASHOWSKI responded that he can only hope
that everyone, no matter where in the state he/she is from,
would feel there is someone to call at the department that will
respond courteously and efficiently to his/her request. He said
his intent is not to serve only the people of Ketchikan. He
remarked that he appreciates the comments [from the committee],
and he said that clearly it's a sensitive issue. He concluded,
"You can expect and take comfort in the fact that I will deal
with that professionally and transparently."
Number 1338
REPRESENTATIVE LYNN remarked, "We're all from someplace; we all
look for the greater good of Alaska."
Number 1385
REPRESENTATIVE GRUENBERG clarified that he certainly didn't mean
to single out Acting Commissioner Matiashowski. He said he
intends to ask future commissioner designees the same question.
Number 1414
REPRESENTATIVE COGHILL moved to forward the name of Acting
Commissioner Matiashowski to the joint session of the House and
Senate for confirmation. There being no objection, the
confirmation of Acting Commissioner Matiashowski was advanced
from the House State Affairs Standing Committee.
HB 544-PERM FUND BOARD PUBLIC MEMBER REMOVAL
Number 1450
CHAIR WEYHRAUCH announced that the next order of business was
HOUSE BILL NO. 544, "An Act providing that public members of the
Board of Trustees of the Alaska Permanent Fund Corporation may
be removed only for cause; and providing for an effective date."
Number 1465
REPRESENTATIVE SEATON moved to adopt the committee substitute
(CS) for HB 544, Version 23-GH2142\H, Cook, 5/4/04, as a work
draft. [No objection was stated and Version H was treated as
before the committee.]
Number 1483
MICHAEL BARNHILL, Assistant Attorney General, Commercial/Fair
Business Section, Civil Division (Juneau), Department of Law,
said HB 544 would limit removal of permanent fund trustees only
for cause. He noted that the last committee substitute (CS) for
HB 544 that was adopted before the committee was Version 23-
GH2142\D, Cook, 5/4/04, and it included language regarding the
types of cause, a provision for a hearing, and filing of a
decision with the lieutenant governor. He recollected that, at
the last hearing of the bill, Representatives Seaton, Gruenberg,
and Holm expressed concerns about "all the bells and whistles in
the bill." Subsequently, the bill was trimmed down so that
public members of the permanent fund board of trustees could be
removed only for cause. He continued as follows:
We took that version to the Senate side. It passed
out of [the Senate Finance Committee], went to the
floor yesterday, [and] passed out of the Senate floor
20-0. In the mean time, a request for a House CS was
sent over to [Legislative Legal and Research Services]
and they prepared Version H, which is before you now,
and that added this first sentence to clarify that a
governor may remove a nonpublic member from the board.
That sentence is not in the Senate version that passed
out yesterday, and it's my view that that concept is
absolutely understood in the Senate version and is not
necessary. It can be in there; it doesn't have to be
in there. But certainly we've all along intended that
the governor may remove nonpublic members - [for
example] the commissioner of the Department of Revenue
and the other cabinet member - from the board at any
time.
Number 1578
CHAIR WEYHRAUCH offered his understanding that the synonym for
nonpublic is private.
MR. BARNHILL responded, "I suppose that's one interpretation."
CHAIR WEYHRAUCH concluded that the governor may remove a private
member from the board.
MR. BARNHILL replied that that's not what was intended by
Legislative Legal and Research Services. He said, "They
intended that to refer to the commissioner of the Department of
Revenue and the other cabinet members.
REPRESENTATIVE GRUENBERG, in response to a comment from Chair
Weyhrauch, said he thinks the term "public" in "this area" is a
term of art which means, "the people who are appointed not from
the administration."
Number 1612
REPRESENTATIVE SEATON said he doesn't think that the additional
wording that was added is really necessary. He said he thinks
when it says the governor may remove a public member that it is
fully known what that means.
Number 1637
REPRESENTATIVE COGHILL said he thinks the governor has a
constitutional right to move his commissions, at will, and he
doesn't know that language needs to be added to reinforce that.
He suggested, "Putting it in here might create a chain
reaction."
REPRESENTATIVE GRUENBERG suggested deleting the sentence that
read: "The governor may remove a nonpublic member from the
board."
CHAIR WEYHRAUCH clarified that Version H was before the
committee.
Number 1703
CHAIR WEYHRAUCH clarified that Representative Gruenberg's
[Amendment 1] would delete the previously stated sentence from
page 1, line 6, of Version H. He asked if there was any
objection to [Amendment 1]. There being none, it was so
ordered.
Number 1725
REPRESENTATIVE SEATON moved to report CSHB 544, Version 23-
GH2142\H, Cook, 5/4/04, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 544(STA) was reported out of the
House State Affairs Standing Committee.
The committee took an at-ease from 9:39 a.m. to 9:46 a.m.
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES
Number 1749
CHAIR WEYHRAUCH announced that the last order of business was CS
FOR SENATE BILL NO. 354(STA) am(efd fld), "An Act relating to
complaints filed with, and investigations, hearings, and orders
of, the State Commission for Human Rights; and making conforming
amendments."
CHAIR WEYHRAUCH reminded the committee that the motion to adopt
Amendment 2 on May 5, 2004, had been left pending in order to
wait for response from Lisa Fitzpatrick, Human Rights
Commission, to questions from the committee. [Amendment 2 would
delete paragraphs (4), (6), (8), and (9), on page 3, lines 2, 5,
7, and 8, and renumber accordingly.]
Number 1785
LISA FITZPATRICK, Chair, Human Rights Commission, Office of the
Governor, responding to the committee's questions on behalf of
the commission, indicated that the commission is concerned about
leaving in language [on page 3, paragraphs (6) and (9)].
Paragraph (6) read: "(6) a hearing will not represent the best
use of commission resources;". Paragraph (9) read: "(9)
proceeding to a hearing will not serve the public interest."
She explained that the commission is concerned that its caseload
is becoming overwhelming again, to the point of backlog. She
offered an example where an individual may only be entitled to a
nominal amount of relief and it may not be in the public
interest to proceed to a hearing on a case like that. She said
the commission would like some latitude to exercise some
discretion in the degree to which a caseload is worked, in order
to "be successful in housekeeping the caseload."
MS. FITZPATRICK, in response to a request for clarification from
Representative Seaton, said the commission would like
[paragraph] (6) and either [paragraphs] (8) or (9) [on page 3]
to remain in the bill.
Number 1970
SCOTT J. NORDSTRAND, Deputy Attorney General, Civil Division,
Office of the Attorney General, Department of Law, in response
to a question from Representative Gruenberg as to whether he
sees any benefit in keeping both [paragraphs] (6) and (9),
answered that the department would defer to the commission on
what it wants in terms of its prosecutorial discretion. He
stated that the department agrees with the commission that "the
necessity of number (8) is very important."
Number 1980
CHAIR WEYHRAUCH directed attention to Amendment 2 and clarified
that the committee is faced with deleting [paragraph] (4), [and
is considering] leaving in [paragraph] (8). He said, "Then the
committee has a policy decision to make on whether [to] leave in
[paragraphs] (6) and (9)."
Number 1995
REPRESENTATIVE GRUENBERG moved [Amendment 1] to Amendment 2, to
delete from Amendment 2, [paragraph] (8). He explained that
that would keep [paragraph] (8) in the bill.
CHAIR WEYHRAUCH offered his understanding that by leaving in
[paragraph] (8) - which read, "(8) the probability of success of
the complaint on the merits is low; or" - the concern is that a
prejudgment would be made without really hearing the alternative
side to the story.
REPRESENTATIVE GRUENBERG interjected, "No, that's not it at
all."
CHAIR WEYHRAUCH clarified that that was a concern that had been
stated by a previous testifier.
REPRESENTATIVE GRUENBERG stated:
Any litigator needs to weigh the merits of their case,
and if they feel they have a very low probability of
success, they definitely need to have the discretion
not to pursue it or, if they're a defendant, to settle
the matter. This is the heart of being an attorney.
It's bad policy to force litigation when there's no
chance of success; that's just not good.
CHAIR WEYHRAUCH offered his understanding that the executive
director would determine the probability of success of the
complainants, based on merits.
REPRESENTATIVE GRUENBERG responded, "I would hope ... that this
is really a form of litigation, and it may be a legal question,
it may be that the facts are weak. And ... if it's a legal
question I assume the commission director would be getting
advice from the assistant attorney general."
Number 2083
REPRESENTATIVE SEATON told Chair Weyhrauch:
As the bill's originally there, I agreed with you, but
now that we've amended it so that there has to be ...
concurrence of the commission, I think that we've
taken care of the arbitrariness of an executive
director. So, there's got to be that concurrence.
So, if ... the facts were being ... misjudged, the
commission could say, "No, we need to take a look at
this anyway." So, I think I'm not uncomfortable
leaving that one in with the previous amendment.
Number 2140
CHAIR WEYHRAUCH clarified that [Amendment 1] to Amendment 2
would delete [paragraph] (8) from Amendment 2. He asked if
there was any objection to Amendment 1 to Amendment 2. There
being none, it was so ordered.
CHAIR WEYHRAUCH stated that the question before the committee
now was whether to delete [paragraph] (6) or (9).
Number 2150
REPRESENTATIVE SEATON noted that paragraphs (6) and (9) have
subtle differences; the former addresses finance, while the
latter addresses the public interest. He suggested that they
both be removed from Amendment 2, thereby leaving them in the
bill.
Number 2170
REPRESENTATIVE BERKOWITZ stated his preference to leave both
paragraphs (6) and (9) in [Amendment 2]. He noted that the
cases in question are those brought by an individual; therefore,
there could conceivable be instances where the public interest
is marginally served. Having been a prosecutor who has
dismissed cases because they have been too expensive, he said
that doing so is something that must be noted. He indicated
that if he had to pick one of the paragraphs to delete from
Amendment 2, it would be [paragraph] (6).
CHAIR WEYHRAUCH suggested combining [paragraphs] (6) and (9)
with an "or".
REPRESENTATIVE GRUENBERG said he would like to keep [paragraph]
(6) in the bill [thus removing it from Amendment 2] for the same
reason Representative Berkowitz just stated. He said he would
like to further discuss whether to retain or delete [paragraph]
(9). He asked if the two paragraphs could be addressed one at a
time.
Number 2244
REPRESENTATIVE HOLM concurred with Representative Seaton that
there is oversight by the commission. He said, "It would appear
to me you'd want to keep this in so that you wouldn't - as
Representative Berkowitz says - ... have cases where it would be
so terribly [expensive] you couldn't afford to do them." He
noted, "The State of Alaska - we don't print the money; the
[federal government] prints the money ...."
REPRESENTATIVE GRUENBERG [moved to adopt Amendment 2 to
Amendment 2], to delete "(6)".
CHAIR WEYHRAUCH asked if there was any objection to Amendment 2
to Amendment 2. [No objection was stated and Amendment 2 to
Amendment 2 was treated as adopted.]
Number 2305
REPRESENTATIVE GRUENBERG said he would like at least one example
of the kind of case that would fall under the category of
[paragraph (9)].
Number 2317
MR. NORDSTRAND said he thinks the commission would be in a
better position to talk about examples of cases. He said he
thinks the administration would be comfortable in keeping either
[paragraph] (6) or (9). He said if [paragraph] (6) is more
specific and therefore "more palatable," that would be
acceptable. He stated, "There may be circumstances ... - and I
don't have an example for you - where in the public interest a
case should be dismissed. And it might be easy to characterize
it as a resource issue, and it might be better to [require] them
... to say, 'Yes, it is, in fact, in the public interest, and
here's why.'"
REPRESENTATIVE BERKOWITZ asked, "Why was this section drafted in
there?"
MR. NORDSTRAND answered that the Department of Law tried to come
up with a list that made sense, in terms of what discretion
should be exercised. He noted that some original language said
that [cases] may be dismissed for administrative convenience.
He said that language was problematic for the Senate and was
removed. He explained that there was some thought that there
shouldn't be limits, and an effort was made to find "some
description of discretion that we could be comfortable with."
REPRESENTATIVE GRUENBERG asked Ms. Fitzpatrick for an example of
"something that would fall in that category [that] wouldn't fall
in some other category."
TAPE 04-80, SIDE A
Number 2378
MS. FITZPATRICK offered an example where there is no monetary
loss to the individual but the situation has been remediated.
She said that might be a situation that could conceivably fall
under the ambit of [paragraph] 9.
REPRESENTATIVE GRUENBERG said that satisfies him. He asked
Representative Berkowitz for his feedback.
Number 2324
REPRESENTATIVE BERKOWITZ responded:
When you are making a prosecutorial decision, I think
it's fundamentally incompatible to smith individual
justice, which is what we do in our justice system,
... taking a step back and saying, "Well, how does
this fit in the best interest of the system?"
I can think of a circumstance ..., for example, where
someone has been horribly discriminated against by an
institution that's vitally important to the state.
And what do [we] say to that person? "Oh no, we're
not going to pursue your case, because it might bring
injury to an institution that's of vital importance to
the state." And so, ... we're going to deny the
individual justice, because the state's best interests
aren't served. So, I think deletion of [paragraph] 9
from the bill is appropriate.
MR. NORDSTRAND reiterated that the department will support the
commission's position.
Number 2274
REPRESENTATIVE COGHILL asked, "If we delete this [paragraph]
out, would it take away the discretion for that very scenario
that the commissioner brought before us?" He indicated that
what is being talked about is "a dismissal without prejudice."
He said, "I understand the other extremity of the argument, but
there's also a place where satisfaction has been brought and
we're still compelled to take action." He indicated that he
wouldn't worry about deleting the language if he had comfort
from the commissioner that the discretion would still be in
place.
Number 2213
CHAIR WEYHRAUCH clarified that the previously stated idea to
delete paragraph (9) from Amendment 2 would be called Amendment
3 to Amendment 2. He asked if there was any objection to
Amendment 3 to Amendment 2.
REPRESENTATIVE COGHILL responded:
Only with one caveat that if we keep the wording of
[paragraph] (6) in there, that it's with the
understanding that, if there is remedy found in ...
the circumstances given that that's what that applies
to. So, I won't object.
REPRESENTATIVE GRUENBERG said, "I think that's the legislative
history."
CHAIR WEYHRAUCH asked again if there was any objection to
Amendment 3 to Amendment 2.
Number 2176
REPRESENTATIVE BERKOWITZ objected.
Number 2165
A roll call vote was taken. Representatives Holm, Coghill, and
Lynn voted in favor of Amendment 3 to Amendment 2.
Representatives Berkowitz, Gruenberg, and Weyhrauch voted
against it. Therefore, Amendment 3 to Amendment 2 failed by a
vote of 3-3.
Number 2132
CHAIR WEYHRAUCH asked if there was objection to adopting
Amendment 2, as amended. [The objection to Amendment 2, without
amendments, originally stated by Representative Holm during the
previous hearing on SB 354, on May 5, 2004, was treated as
withdrawn.] There being no objection to Amendment 2, as
amended, it was so ordered.
ADJOURNMENT
The House State Affairs Standing Committee meeting was recessed
at 10:08 a.m. to a call of the chair. [The meeting was
reconvened May 8, 2004.]
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