Legislature(1995 - 1996)
03/21/1996 09:20 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
MINUTES SENATE FINANCE COMMITTEE March 21, 1996 9:20 a.m. TAPES SFC-96, #45, Sides 1 and 2 SFC-96, #46, Side 1 (000-346) CALL TO ORDER Senator Rick Halford, Co-chairman, convened the meeting at approximately 9:20 a.m. PRESENT In addition to Co-chairman Halford, Senators Donley, Phillips, Rieger, and Zharoff were present. Co-chairman Frank arrived soon after the meeting began. Senator Sharp did not attend. ALSO ATTENDING: Representative Therriault; Robert E. Ruby, Division Administrator, Alaska Division, Federal Highway Administration, U.S. Department of Transportation; Jim Bryson, Right-of-Way Officer, Alaska Division, Federal Highway Administration, U.S. Department of Transportation; Chris Christensen, Staff Counsel, Alaska Court System; Geron Bruce, Legislative Liaison, Dept. of Fish and Game; Dwight Perkins, Special Assistant, Dept. of Labor; Sam Kito, III, Legislative Liaison/Special Assistant, Dept. of Transportation and Public Facilities; Sara Hannan, Alaska Environmental Lobby; Carol Carroll, Director, Administrative and Support Services Division, Dept. of Military and Veterans Affairs; Crystal Smith, Legal Administrator, Dept. of Law; Nancy Weller, Medical Assistance Administrator, Division of Medical Assistance, Dept. of Health and Social Services; Brett Huber, aide to Senator Green; and aides to committee members and other members of the legislature. PARTICIPATING VIA TELECONFERENCE: Beth Kerttula, Assistant Attorney General, Dept. of Law, Anchorage; Janice Adair, Director, Division of Environmental Health, Dept. of Environmental Conservation, Anchorage; Rick Barrier, President, Alaska Campground Owners' Association, Anchorage; Daniel Strouse, R/V Park Owner, Palmer; Red Starr, R/V Park Owner, Palmer. SUMMARY INFORMATION SB 181 - PROHIBITED HIGHWAY ADVERTISING Discussion was had with Robert Ruby; Jim Bryson; Sam Kito, III; and Brett Huber. Teleconference testimony was presented by Rick Barrier, Daniel Strouse, and Red Starr. The bill was subsequently held in committee for additional work by Co- chairman Frank and the sponsor, Senator Green. SB 199 - ENVIRONMENTAL & HEALTH/SAFETY AUDITS Testimony was presented by Sara Hannan, Geron Bruce, Dwight Perkins, and Sam Kito, III. Janice Adair and Beth Kerttula responded, via teleconference from Anchorage, to questions from members. The bill was then held in committee for additional work by Senator Phillips and the sponsor, Senator Leman. HJR 5 - LIMITING TERMS OF STATE LEGISLATORS Representative Therriault noted differences between CSHJR 5(Fin)am and SCS CSHJR 5(Jud). Chris Christensen spoke in opposition to the Senate Judiciary version. Following discussion with members, Co-chairman Halford advised that the resolution would be held in committee and that the House version would be used by committee as the starting point for further review. SENATE BILL NO. 199 An Act relating to environmental audits and health and safety audits to determine compliance with certain laws, permits, and regulations; and amending Alaska Rules of Appellate Procedure 202, 402, 602, 603, 610, and 611. Co-chairman Halford directed that SB 199 be brought on for continued discussion. He noted teleconference participation by JANICE ADAIR, Director, Division of Environmental Health, Dept. of Commerce and Economic Development, to respond to questions relating to the bill. No questions were raised. SARA HANNAN, Alaska Environmental Lobby, came before committee and spoke in opposition to the bill which she termed "the violator's secrecy act." She referenced previous testimony indicating that fourteen other states have similar legislation which grants immunity and privilege in cases of self-audit, and she advised that thirty-six states have chosen not to pass similar laws and have instead crafted narrow language. Ms. Hannan suggested that the legislation deals with an issue that is not a problem in Alaska. In hours of testimony before Senate Resources, not one local case was brought forward whereby penalties were forced on someone working to comply with environmental or safety regulations. Laws in Texas and Louisiana and examples of EPA leveling punitive damages on corporations to comply with environmental laws relate to other states. Referencing prior comments that penalties might be levied for failure to follow "simple paperwork procedures," Ms. Hannan suggested that action would most likely only be taken if the violation impacted public safety. She stressed that corporations do not have the same level of privilege and privacy as individual citizens. When corporations seek to do business in Alaska, they should comply with local law. If they do not do so, they have an undue business advantage over those who comply. The state should not create an incentive to forego compliance costs. Ms. Hannan acknowledged that compliance with environmental and safety laws costs money. Those laws, however, are put in place to protect the public. If they are unduly burdensome, they should be repealed. The legislature should not grant corporations privilege and immunity for violations and non-compliance that makes them more competitive in the marketplace. Ms. Hannan reiterated that there is no problem with Alaska's environmental and safety laws. No examples of problems have been presented. She stressed need for free, open, and easy discussion between corporations and regulators. The "dog" hired by the state to make sure laws are complied with should be respected by both sides. Ms. Hannan reiterated that the granting of privilege puts the public right to know at risk. Much of the problem with the proposed legislation relates to privilege rather than immunity. She suggested that the legislation would create problems that do not now exist and urged that the bill not pass from committee. GERON BRUCE, Legislative Liaison, Dept. of Fish and Game, next came before committee to speak to current statutory protection of anadromous fish habitat and why the proposed bill would require additional funds to fulfill department responsibilities. Protection laws within AS 16.05.870-80 require that those proposing activity in a fish stream provide notification and plans to the department. The department reviews the plans and works with applicants to develop a viable project that protects fish habitat. Stipulations on the permit are used to accomplish that goal. The department has a high rate of permit approval under the foregoing process (over 99% of those applying receive a permit). [Co-chairman Frank arrived at the meeting at this time.] Concern regarding the legislation relates to the fact that the department has no post-permit inspection capability. The department thus depends upon the public and fishery biologists who may be in the field and notice "a stream running dirty" to notify the state that there may be a problem. The department then contacts the permittee and attempts to discover the problem. Under the proposed bill, someone could conduct an audit, and the information would be privileged. The department would no longer be able to "go to the main source of information" traditionally utilized to determine what the problem is and develop corrective action. As a consequence, the department would need staff to collect independent information to determine the cause of the problem and ascertain whether proper corrective action is being taken. The department thus seeks funding for an additional staff person. DWIGHT PERKINS, Special Assistant, Dept. of Labor, next came before committee. He referenced two department concerns raised when the bill was before Senate Resources. The first relates to OSHA and the second to worker's compensation. Senate Resources amended the legislation and removed worker's compensation proceedings. Issues relating to OSHA remain and give rise to concern that the state will no longer comply with federal requirements. Alaska presently has a "state plan" under which it operates its own OSHA program. There are, however, certain things the state must do to comply with federal law. Mr. Perkins acknowledged that the Texas plan has privilege language similar to that in the proposed bill. However, the federal government ignores those statutes and goes in and gets the information it needs. If Alaska were to proceed under the proposed bill, the state could potentially lose its program. As in Texas, the federal government would retain ability to get the information it needs. Mr. Perkins questioned whether the legislature would want OSHA to revert to the federal program. Speaking to penalties and OSHA compliance, Mr. Perkins explained that the department has the ability to reduce "up to 97.5% of the fines" levied against an employer or individual for "things that they had wrong on their job sites." In most situations, where good faith is shown and it is acknowledged that an employer is attempting to take corrective action, that is taken into consideration. More importantly, the department "will go in, on consultation, and . . . provide and perform the audits at no charge to the employer." That information is privileged. Compliance staff does not have access. Privileges are thus already available on the consultation side of state OSHA proceedings. Provisions in the proposed bill are not needed. Mr. Perkins next referenced 29 U.S. Code No. 651 and noted that Sec. 17 relates to penalties, Sec. 8 relates to inspections and investigations, and Sec. 18 mandates that state requirements be "at least" as stringent as federal requirements. He then asked that the committee consider removing references to "health and safety" throughout the bill. That would take care of the remaining Dept. of Labor concern. SAM KITO, III, Legislative Liaison/Special Assistant, Dept. of Transportation and Public Facilities, next came before committee. He described the circumstances whereby the majority of airports in Alaska are owned and managed by the department. Under the proposed bill, hundreds of industrial leaseholders and tenants using lands at airports and elsewhere would be subject to privileges and immunities. State land managers would be unable to maintain tenant environmental audit documents pertaining to use of public lands. At the same time, state agencies, including airports, would be subject to and responsible for environmental compliance and violations occurring on those lands and facilities. The bill would further reduce limited information on the condition of state property and increase the environmental liability of the state. DOTPF airports have an overriding interest in obtaining environmental audits and related documents because the state is liable for environmental damages. Non-compliance, cleanup, ground water contamination, public health and safety, and costs caused by tenant activities are also included. The intent of SB 199 is to encourage environmental cleanup and compliance without penalizing individuals. However, as the bill is written, landowners and tenants are placed at odds. The department recommends that Sec. 09.25.465 (non- privileged materials) be amended to add: material required in public lease agreements, permits, and licenses Co-chairman Halford observed that testimony indicates that under the proposed bill existing information would not be available. He then voiced his understanding that bill provisions state that if audit information is currently required for other purposes, it does not warrant privileges and immunities. Mr. Kito attested to "a little bit of a clarity issue . . . on the lease provisions as a contract and not a matter of law or regulation." Clarification of this issue would take care of concerns regarding leases. Senator Randy Phillips remarked on numerous statements in opposition to the bill and asked who, other than the sponsor, was supportive. Co-chairman Halford explained that the bill emanated from an energy council recommendation. He advised that he offered a different approach in Senate Resources in terms of codifying existing federal privileges and immunities. He stressed that a legitimate question is raised in situations where an entity conducts an optional audit, finds a deficiency, and is working on correction. Action to fix the problem should not be used against the entity. The Co-chairman acknowledged problems with the fact that the proposed bill: sets up a situation where both the privilege and immunities can be used as a defense, possibly, against actions that . . . aren't being cleaned up . . . . Instead of being a shield, it becomes a sword. Senator Phillips again inquired concerning whether there was Alaskan support for the bill. Co-chairman Halford acknowledged much work on the bill in Senate Resources and remarked on the complexity of the issue and associated federal involvement. Senator Zharoff inquired concerning the impact of the legislation on tariff litigation. BETH KERTTULA, Assistant Attorney General, Dept. of Law, spoke via teleconference from Anchorage. She noted two impacts: 1. The state will have to pay for its own audits. Based on '95 TAPS tariff litigation, it is estimated the state would have to pay approximately $25 million to "gain the same kind of information we're getting out of audits from the owner companies and from Alyeska." 2. An overall impact on the tariff. Under state royalty and production tax statutes, the state is responsible for "about a quarter of the tariff." In the '95 case, which totals approximately $330 million overall, the state portion is $82 million. Under privileges and immunities sections of the bill, the state would not be getting or using the information. The state would thus be at quite a loss in tariff cases in terms of environmental and safety audits which comprise the greater part of the information in the '95 case. In response to a further question from Senator Zharoff, Ms. Kerttula clarified that while the case itself is worth approximately $82 million to the state, under the proposed bill the cost associated with obtaining needed information to bring the case would have cost $25 million. Senator Zharoff asked if there are other tariff cases for which the proposed bill would require the state to gather information on its own. Ms. Kerttula advised of ongoing tariff cases and stressed that the state would not have access to future audits. Co-chairman Halford asked if privileges and immunities provisions attach if the audit is required by law. Ms. Kerttula voiced her belief that that would be a point of contention. The joint pipeline office conducts certain audits, and there would be no problem obtaining those. The audits in question are owner audits not directly required by the state or federal government. In response to a question from Senator Zharoff, Co-chairman Halford advised of his understanding that the bill would apply to the entity reporting to the state rather than the state itself. Ms. Kerttula concurred. Co-chairman Halford queried members regarding disposition of the bill. Senator Randy Phillips expressed his belief that the bill should be returned to Senate Resources for additional substantive work. Co-chairman Frank agreed, saying that while it could be placed in a Senate Finance subcommittee, it might be more appropriately returned to Resources. As an alternative, he suggested that the sponsor be asked to develop a committee substitute. Co-chairman Halford directed that the bill be held in committee and asked that Senator Phillips work with the sponsor, Senator Leman. SPONSOR SUBSTITUTE FOR SENATE BILL NO. 181 An Act relating to the promotion of Alaska businesses through signs, displays, and devices within or adjacent to highway rights-of-way, to municipal regulation of directional signs, displays, and devices, and to penalties for violations related to outdoor advertising. BRETT HUBER, aide to Senator Green, came before committee. Directing attention to CSSSSB 181 (STA), he explained that the bill would establish the Dept. of Transportation and Public Facilities tourist oriented directional signs (TODS) program in statute and allow placement of signs on private property outside of the right-of-way. Codification of the program will provide for a well-planned and regulated system of directional signs to benefit visitors and businesses that serve them. The department presently administers TODS as an experimental program consistent with standards established by FHA and the manual of uniform traffic control devices. The absence of statutory authorization for the program has left the public out of the regulatory process. Statutory enactment would provide firm legal footing for the program to continue. Opinion from legislative counsel suggests that without statutory standing the program would be unlikely to withstand judicial challenge. Private property placement of uniform (18" x 90") directional signs would allow establishments a limited, strictly controlled opportunity to direct clientele. Stringent guidelines (more strict than federal law allows) and requirements for individual application and approval offer ample opportunity for the state to maintain roadway view sheds. As evidenced by signatures of visitors gathered by campground owners, tourists seek more adequate directional signs. Mr. Huber directed attention to additional material from the Federal Highway Administration and noted that it highlights concerns regarding language within the bill. Referencing FHA indications that TODS signs may only be placed in the right-of-way, Mr. Huber advised of the sponsor's intent to develop a uniform program allowed by Dept. of Transportation and Public Facilities and approved on a case-by-case basis to give businesses an opportunity to provide directional signs while maintaining state control of roadway appearance. Mr. Huber then voiced his understanding that directional signs outlined in the bill would be allowed under federal guidelines but would be under a different program than TODS. The second concern raised by FHA relates to sign dimensions. Mr. Huber referenced information stating that signs should not exceed seventy-two inches in width. The current TODS program allows for ninety-inch signs. Mr. Huber asked that the committee assist in developing language to remedy federal concerns and to satisfy business needs. BOB RUBY, Division Administrator, Alaska Division, Federal Highway Administration, came before committee accompanied by JIM BRYSON, Division Right-of-Way Officer, Federal Highway Administration. Mr. Ruby directed attention to a handout (copy on file in the Senate Finance file for SB 181) and advised that it contains: 1. An overview relating to outdoor advertising 2. Umbrella law (outdoor advertising) 3. Information on "on-premise" signs 4. Requirements for the TODS program. 5. General comments on SB 181 In response to questions by Co-chairman Halford relating to sign dimensions, Mr. Ruby acknowledged that TODS was established as an experimental program. In an attempt to be as flexible as possible, "the ninety inches was accepted at that time." That is not considered a significant issue and would not be considered a fatal flaw. Federal law covers all fifty states. The administration has authority at the state level to make reasonable adjustments for unique conditions. Brief discussion occurred between Co-chairman Halford and Co-chairman Frank regarding prior billboard legislation that failed to become law. Further comments followed regarding sign requirements for commercial/industrial areas. Referencing the above-noted information regarding outdoor advertising, Mr. Ruby acknowledged that Alaska law is more severe than federal law in that federal law allows for commercial/industrial areas. Aside from that, one cannot have signs in rural areas or beyond the right-of-way. The problem with the proposed bill is the private property allowance. TODS signs and motorist information signs are considered official signs and formatted in accordance with MUTCD. All directional and official signs must be located within the highway right-of-way so that there is proper control over the signs. Senator Randy Phillips asked if there is an official size for such signs. Mr. Ruby responded affirmatively, saying that all official signs for the traveler (gas, food, lodging) or tourist oriented destination signs have restrictions as far as size, placement, number, location within the highway right-of-way, etc. There is little state control of signs on private property outside of the right- of-way. Senator Rieger directed attention to language in his proposed amendment: The program must allow the department to maintain control over the location of signs, and the department must control the location of signs in a manner which maintains the quality of scenic areas. He advised that the language should be inserted in the "heart of the bill" which describes the sign program. Co-chairman Halford asked if the foregoing language meets control requirements. Mr. Ruby stressed that official signs must be located within physical right-of-way limits. Co- chairman Frank attested to the fact that the Dept. of Transportation and Public Facilities maintains control outside of the right-of-way. He advised that he had placed a sign outside of the right-of-way, on private property, and was told to take it down. In response to a suggestion from Co-chairman Frank that two parallel programs be developed, Mr. Ruby said that federal regulations do not apply to zoned, commercial/industrial areas. The Co-chairman then suggested that the state could have a program, existing outside of the right-of-way but limited to size restrictions, which would mirror the TODS program in zoned, commercial/industrial areas. END: SFC-96, #45, Side 1 BEGIN: SFC-96, #45, Side 2 Discussion occurred between Senator Zharoff and Mr. Ruby regarding civic organization signs. Mr. Bryson explained that they are considered official and directional signs under outdoor advertising laws and regulations. They are legitimately erected off-right-of-way signs relating to public-interest, nonprofit groups. Mr. Ruby acknowledged that one problem relates to the fact that state law is much more restrictive than federal law in commercial/industrial areas where signs are expected. That has generated some of the controversy. Discussion followed between Senator Rieger and Mr. Ruby and Mr. Bryson regarding signs along the Glenn Highway. Mr. Bryson said that if state legislation enabled signs to be erected in unzoned commercial/industrial zones, a specific definition would have to be developed. The erection of signs would then have to comply with the definition of "unzoned commercial" within the state of Alaska. Mr. Ruby acknowledged that, because of the wide right-of-way in Alaska, when a sign is placed on private property outside of the highway right-of-way, it is too far from the line of sight to be seen. Many property owners thus place signs in the right-of-way and are subsequently asked to remove them. To address the issue, the federal government developed a program unique to Alaska. It allows property owners to lease highway right-of-way from the state and place signs immediately adjacent to property in areas where they are visible and safe from collisions. The federal government has tried to address individual issues in rural areas of Alaska. Mr. Ruby voiced his understanding that the approach is working satisfactorily but acknowledged room for improvements and suggestions. Senator Rieger referenced the handout from Mr. Ruby and requested a definition of "an unzoned commercial or industrial zone." Mr. Ruby explained that a single entity does not constitute a commercial area. It is merely a business located along the road. A series of businesses along a strip creates a commercial or industrial area. Senator Rieger cited an example of a number of road houses located in close proximity. Mr. Ruby said that, on request, the FHA could make a site-specific evaluation and a clear determination. Co-chairman Frank voiced need to accommodate federal restrictions within the proposed bill. He then suggested that the sponsor be asked to develop a committee substitute that allows for directional signs in commercial and industrial areas. While those signs would be limited to specific size, they would not be restricted to location within the right-of-way. For areas other than commercial and industrial, the existing TODS program would prevail and location of signs would be within the right-of-way. Further discussion followed among members citing sign situations at Tok, the Glenn Highway, and the Seward Highway. Senator Zharoff inquired regarding the federal definition of a rural road. Mr. Ruby answered, "Something outside of a built-up city, town, village." Unincorporated villages and small communities are considered commercial areas for sign purposes. He advised that he would produce a definition for "rural." SAM KITO III, Legislative Liaison/Special Assistant, Dept. of Transportation and Public Facilities, came before committee in opposition to SSSB 181. He pointed to difficulties associated with enforcement of sign restrictions for signs located outside of the right-of-way. At the present time, these signs are easily identified as illegal signs. A specific category of such signs would make enforcement against illegal signs difficult. Further, proposed decrease of the penalty from a misdemeanor to a violation will leave the state no recourse in instances of repeat offenders. Co-chairman Halford asked if the department was opposed to all signs outside of the right-of- way. Mr. Kito attested to concern regarding placement of signs from both a legal enforcement and aesthetic standpoint. Co-chairman Frank questioned concern in commercial and industrial areas, given size restrictions. Mr. Kito cited Wasilla and Soldotna as examples of local control of signage outside of the right-of-way. He noted the proliferation of signs and spoke to resulting confusion for motorists. Both Co-chairmen took exception to Mr. Kito's comments. They said that feedback from visitors indicates Alaska lacks sufficient directional signs. RICK BARRIER, President, Alaska Campgrounds Owners' Association, next spoke via teleconference from Anchorage. He advised that the association consists of 70 to 80 campground owners and "over 100 other associate members . . . primarily along the highway system." Mr. Barrier voiced association support for the legislation and cited safety issues relating to proper advance notice of sites for visitors driving large campers. The bill would enable business owners to do a better job of informing the public of their locations without deteriorating "the public image." DANIEL STROUSE, R/V park owner, Palmer, Alaska, next testified from Palmer. He observed that after eight years in the business, the number one visitor complaint is lack of tourist-related signs. The second most often asked question is "Where are your route sign numbers." Mr. Strouse stressed that many of Alaska's tourists are elderly visitors driving large "eighteen wheelers." It is difficult for them to anticipate need to stop when a business is only allowed an entrance sign. Visitors have constantly remarked on need to improve signage. Mr. Strouse further attested to complaints from visitors that when they see a viewpoint sign and pull over, they are confronted with "nothing but cottonwood trees and overflowing trash cans." Further, Mr. Strouse noted that his campground is across the road from a state recreation area. There are two, huge signs announcing the entrance to the state park while Mr. Strouse is denied opportunity to give advance notice of his private park. Referencing Mr. Strouse's comment regarding lack of route numbers, Co-chairman Halford noted that Alaska has so few highways that it names rather than numbers them. Mr. Stouse stressed that while that is known by Alaskans, it is new to visitors who are "nervous when they can't find a route sign." The Milepost is "almost useless anymore because there are relatively few mileposts left on the highway." RED STARR, R/V park owner, next testified from Palmer. He attested to the two-and-a-half-year effort involved in procuring TODS along the Old Glenn Highway. While those signs are working, there is still need for additional signage. TODS are small and located at intersections. There is no effective advance sign. Mr. Starr referenced his prior conversation with Mr. Ruby regarding placement of signs on commercial property as well as comments by the state that such signs would lead to loss of federal highway funding. It appears obvious from discussion with FHA personnel that the state has been using federal requirements and loss of federal funding as "a scapegoat" to allow DOTPF to do "whatever they wanted to." Mr. Starr stressed need for a cooperative effort. He then commented further on size restriction on signs, suggesting that even larger signs than presently allowed would not obstruct most views. Co-chairman Halford asked that Co-chairman Frank work with the sponsor in development of a committee substitute for the bill. He then directed that it be held in committee pending receipt of a new draft. CS FOR HOUSE JOINT RESOLUTION NO. 5(FIN) am Proposing amendments to the Constitution of the State of Alaska relating to terms of legislators. Co-chairman Halford directed that CSHJR 5 (Fin) am be brought on for discussion. He then referenced SCS CSHJR 5 (Jud) and a proposed amendment by Senate Judiciary to correct an overreach relating to magistrates. CHRIS CHRISTENSEN, General Counsel, Alaska Court System, came before committee. He explained that the supreme court has taken no position on sections applying to non-judicial officers. However, it opposes sections that would create fifteen-year term limits for judges and magistrates. Alaska's system of judicial appointment and retention is considered a model and has been adopted by other states. The system will not be improved by the proposed bill but will, instead, be severely compromised. Judicial office is fundamentally different than political office. Alaska's constitution recognizes that difference. Justices and judges are appointed by the Governor rather than elected by voters. After assuming office, they do not face contested election. They stand for retention on a vote by the public. Magistrates are not constitutional officers. They are merely employees of the court system who serve at the pleasure of the presiding judge. Mr. Christensen noted that supporters of the original version of HJR 5 made several arguments in support of their views. He then said that none of the arguments "have any applicability, whatsoever, to the judiciary." While it is argued that public opinion polls show support for term limits, most polling data relates to Congress. Mr. Christensen said he had seen none that relates to term limits for judicial officers. No such initiatives or statutes have been passed elsewhere in the nation in the last few years. Mr. Christensen further advised, Second, it's argued that term limits will bring in people with new ideas. Mr. Chairman, I think I don't have to tell you, judges aren't supposed to have ideas, new or otherwise. Judges are supposed to take your laws and apply them to individuals. The third argument is that term limits level the playing field for challengers. There are no challengers in judicial retention elections. The voting public has an opportunity to approve or disapprove the action of each judge. Judges have been rejected by the voters in the past. The retention election is the appropriate form of judicial term limit. Mr. Christensen stressed that the practical effect of imposing a fifteen-year term limit on judges would be to deter "anyone under the age of 45 from applying to be a judge." Those under that age would be forced to leave the bench before retirement age and begin a second career at that time. The term limitation would also have a negative impact on the retirement system. Most judges presently serve longer than fifteen years before retiring. The actuarial basis of the judicial retirement system assumes that judges will continue to make contributions to the system after they have fully vested. If all judges are required to retire at fifteen years, there will be substantially more judges drawing retirement pay at any one time, and the state will be forced to increase its contributions to the retirement system. As evidence of further negative fiscal impact, Mr. Christensen noted that court system fiscal notes for new criminal law do not reflect the cost of a sitting judge but use of a recently retired judge on a pro-tem appointment. Because such judges draw retirement pay, the court system pays only the difference between their retirement and what a sitting judge receives. Legislation is thus implemented based on a cost of approximately fifty cents on the dollar. Under the proposed bill, judges would be prohibited from serving for three years after retirement. The court system will thus have difficulty getting pro-tem judges. That will substantially slow the process, and the court system will probably have to pay more to obtain judicial services. In his closing remarks, Mr. Christensen stressed the supreme court's belief that the state judicial system will work best if members "come from the widest possible demographic pool, and if the voters are allowed to decide which judges are doing a good job and deserve to be retained." Co-chairman Frank inquired concerning changes made in Senate Judiciary. Mr. Christensen explained that the Judiciary version adds municipal officers to term limits. The House resolution bill applies only to the legislature. REPRESENTATIVE THERRIAULT, sponsor of the resolution, next came before committee. He explained that the House version required an individual to "sit out for two, full, consecutive terms." Changes in Senate Judiciary would require a former legislator to "sit out for four years unless you were appointed to fill somebody's seat," if they left office. Senator Randy Phillips inquired concerning the rationale behind the resolution. Representative Therriault spoke to the "power of incumbency" that is not available to challengers. He voiced his belief that, "after a certain amount of time, you should break that incumbency." Senator Phillips remarked that cumulative averages since statehood indicate that "every two years 35 percent of the Senate is gone, and every two years 45 percent" of the House is gone. He suggested that being an incumbent puts one in a negative rather than positive position. Representative Therriault acknowledged a healthy turnover in the state legislature. He explained that the bill is aimed at those in office for 25 to 30 years. Senator Phillips raised concern that the resolution would deny voters the right to vote for whomever they wish. He stressed that voters can rid themselves of legislators they do not want. They have utilized that opportunity numerous times. The facts do not support the theory behind the resolution. Representative Therriault pointed to prohibitions denying both the President and Alaska's Governor third terms. Senator Phillips noted that much power is concentrated in those positions while it is shared among 60 members of the legislature. Co-chairman Halford told members that the National Council on State Legislatures views Alaska's legislature as one of the weakest in the country, in terms of power held by the Governor. He added that while he generally supports term limits, there is need for institutional legislative memory in the balance of power between the legislative and executive branches. He further observed that things done in response to public interest have weakened the legislature in several areas. Nothing since statehood has weakened the Governor. Questions are thus raised concerning the balance of power. Representative Therriault acknowledged need for an adequate learning curve for legislative proficiency. END: SFC-96, #45, Side 2 BEGIN: SFC-96, #46, Side 1 Senator Donley concurred in comments by Co-chairman Halford, advising of the following limitations on the legislature: 1. 120-day session 2. stringent ethics law applied to the legislature while the executive branch operates under much less burdensome law 3. requirement for a three-quarter vote on override of the Governor's veto on appropriation items. Alaska is the only state where the Governor has reapportionment power. Further, few states provide the line-item veto power enjoyed by Alaska's Governor. The need for centralized power has lessened rather than increased since statehood, yet the power of centralized government has increased over that period of time. Philosophically, "it's gone the opposite of what it should have gone." Senator Donley said he could support the resolution if provisions are packaged with other reforms such as legislative power over state-created public corporations. Senator Rieger concurred in need to maintain a balance of power. He expressed additional concern over placing multiple proposals before the voters that "make it look more and more like a constitutional convention." He questioned the kind of precedent that would set. Co-chairman Halford noted that the upcoming election would provide a test for voters confronted with complex, multi- page initiatives dealing with topics that are generally supported. He attested to the time required to read full ballot provisions and suggested that voters may reject "things that they would otherwise like, because they're too complex and presented with too many facets." The Co- chairman specifically cited issues relating to both fish and game and campaign reform. Representative Therriault voiced his belief that the Senate Judiciary version confuses the issue and asked that committee deliberations revert to the House resolution. Co- chairman Halford concurred in regard to Judiciary inclusion of magistrates. He said that magistrates would be removed from the resolution since they were inadvertently incorporated. Comments followed by Co-chairmen Frank and Halford regarding the regulatory powers of the executive branch. In response to a question from Senator Zharoff, Representative Therriault advised that the House resolution speaks specifically to House and Senate legislators. It does not include municipal officials. Further brief discussion followed regarding voter rejection of judges. Senator Rieger voiced concern that mandating a greater degree of turnover in the judiciary further tilts the balance of power toward the executive branch since the Governor has the power to appoint judges. Co-chairman Frank concurred and indicated a preference for the House resolution. He remarked that judicial retention is a separate issue. Senator Donley suggested that requirement of a super majority (60 to 65 percent) for retention of a judge might be a better approach. Additional discussion of an elected judiciary followed. Co-chairman Halford concurred that the balance of power question was made worse by inclusion of the judiciary within the resolution. Senator Zharoff suggested that term limits on the legislature should do away with the prohibition of having to wait a year prior to pursuing certain employment opportunities. Further discussion of the balance of power between the legislature and executive branch followed. As a counter argument to need for institutional memory within the legislature, Co-chairman Frank cited the institutional tendency toward the status quo that occurs the longer an individual serves. He noted that freshmen legislators "are willing to come in and change things more aggressively than are those that have been here for twelve years plus . . . ." The viewpoint of those who know they will serve limited terms may be valuable to the process. Co-chairman Halford voiced his belief that the greatest abuse of legislative incumbency in other states is leadership incumbency. Alaska has a tradition of not repeating presiding officers. Abuses occur when individuals retain the position of senate president or speaker of the house for twenty years. Co-chairman Halford directed that the bill be held in committee and noted consensus to "go back to the House bill as a starting point and work from there." ADJOURNMENT The meeting was adjourned at approximately 11:15 a.m.