Legislature(2001 - 2002)

03/26/2001 06:03 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     SENATE FINANCE COMMITTEE                                                                                 
                          March 26, 2001                                                                                      
                              6:03 PM                                                                                         
SFC-01 # 53, Side A                                                                                                             
SFC 01 # 53, Side B                                                                                                           
CALL TO ORDER                                                                                                               
Co-Chair Pete  Kelly convened the meeting at approximately  6:03 PM.                                                            
Senator Dave Donley, Co-Chair                                                                                                   
Senator Pete Kelly, Co-Chair                                                                                                    
Senator Loren Leman                                                                                                             
Senator Lyda Green                                                                                                              
Senator Gary Wilken                                                                                                             
Senator Lyman Hoffman                                                                                                           
Senator Donald Olson                                                                                                            
Also Attending:   BRUCE JOHNSON, Deputy Commissioner,  Department of                                                          
Education  and  Early  Development;  GEORGE  UTERMOHL,  Legislative                                                             
Counsel, Legislative Legal and Research Services; DEL CUMMINS                                                                   
Attending via Teleconference:   From Unalaska:  DARREL SANBORN; From                                                          
Wrangell:   JANELL  PRIVETT;  From  Kenai:   ED  MCCLAIN,  Assistant                                                            
Superintendent, Kenai Schools                                                                                                   
SUMMARY INFORMATION                                                                                                         
SB 133 - PUBLIC SCHOOL COMPETENCY EXAM                                                                                          
The Committee  heard testimony from the Department  of Education and                                                            
Early Development and reported the bill from Committee.                                                                         
SB 88 - METROPOLITAN PLANNING ORGANIZATIONS                                                                                     
After  brief debate  and testimony  from Legislative  Legal and  the                                                            
Attorney General's Office the bill was reported from Committee.                                                                 
CS FOR SENATE BILL NO. 133(HES)                                                                                                 
"An Act relating to a two-year  transition for implementation of the                                                            
public  high school  competency examination  and  to establishing  a                                                            
secondary   student  competency   examination   as  a  high   school                                                            
graduation requirement; and providing for an effective date."                                                                   
DARREL  SANBORN, testified  via teleconference  from  Unalaska.   He                                                            
indicated  that  in a  couple  places in  the  bill it  stated  "the                                                            
governing  board" and  requested clarification  as  to whether  they                                                            
meant the state board of education or the local board.                                                                          
Senator Green  clarified that  the bill was  referring to the  State                                                            
School Board.                                                                                                                   
Mr. Sanborn stated that  his second concern was that ESL (English as                                                            
a  Second Language)  was  not addressed  in  the  bill at  all.   He                                                            
pointed out that English  is a second for many students in Unalaska.                                                            
Senator Green  answered that  it might be  different if they  had an                                                            
ESL student under an Individual  Education Plan (IEP).  She deferred                                                            
the question to the department.                                                                                                 
BRUCE  JOHNSON, Deputy  Commissioner,  Department  of Education  and                                                            
Early Development,  indicated that  CS SB 133 (HES) did not  address                                                            
IEP students  directly.   He  explained that  if that  were to  take                                                            
place it would have to be done through the waiver process.                                                                      
Senator Green  pointed out  the three things  that she felt  were of                                                            
priority:   one,  continue  to give  the exam;  two,  have the  exam                                                            
address  the  essential  skills  of  the  students;  three,  address                                                            
provisions  for learning disabled  student.   She noted that  during                                                            
the process they realized  that they needed a safety valve or waiver                                                            
so  that a  district  would  be able  to  handle  any extraordinary                                                             
circumstance.    She explained  that  in  the  bill they  created  a                                                            
transition   period;  they   would   begin  giving   the  test   for                                                            
accountability  in 2002 and the students  who passed the  exam would                                                            
have it indicated  on their transcript and diploma.   She noted that                                                            
there would  also be provisions for  the learning disabled  students                                                            
who might need  some provisions made  for their exams.  She  pointed                                                            
out that  all IEP students  had the option  of a regular  assessment                                                            
without  accommodation   or  with  accommodation   or  an  alternate                                                            
assessment.  She  explained that in the year 2004  the exam would be                                                            
retooled  and they would  have the  same procedures  in place.   She                                                            
added that  there would  be a  waiver procedure  for the  following:                                                            
the student  who might  transfer in  late; illness;  injury or  what                                                            
they would  consider extenuating circumstances.   She stated  that a                                                            
school  district  would present  to  the  department the  number  of                                                            
waivers approved  and in January of  2003 the department  would come                                                            
back to the  legislature. She said  that they believed there  should                                                            
be legislation  that would place the  exit exam in a position  where                                                            
it  would be  legally defensible.    She added  that  they tried  to                                                            
create something that would avoid legal entanglement.                                                                           
Mr.  Johnson  applauded  the Senate  Health,  Education  and  Social                                                            
Services (HESS) Committee  and Senator Green.  He indicated that the                                                            
department  was pleased with the many  refinements to the  secondary                                                            
pupil  competency   testing  law   as  outlined  in  the   committee                                                            
substitute  for SB  133.   He noted  that the  department  sincerely                                                            
believed that  they were on the right path to ensure  that Alaskan's                                                            
standard space  reform effort would prevail and that  students would                                                            
be  treated  fairly.   He  indicated  that  the  fair  treatment  of                                                            
students with  special needs had been successfully  addressed in the                                                            
bill.  He further  stated that the  potential of waivers  for unique                                                            
situations had  also been addressed and could, in  their estimation,                                                            
be crafted by the State  Board of Education and Early Development to                                                            
maintain  integrity.    He  offered  two  suggestions:    first,  an                                                            
effective date of 2006,  which would allow for greater defensibility                                                            
when the law  was challenged; second,  the endorsements outlined  in                                                            
the bill  would be  best left  on the  transcript.   In closing,  he                                                            
commended  the  Senate  on  the  legislation   and  added  that  the                                                            
legislation  would ensure  that Alaska's public  schools would  have                                                            
enough time to prepare all students.                                                                                            
Senator  Wilken  referred  to  page  2,  line  7,  specifically  the                                                            
language,  "or receives  a  waiver  from the  governing  body".   He                                                          
requested clarification  that "governing body" was  referring to the                                                            
local school board.                                                                                                             
Senator  Green clarified  that  it does  refer to  the local  school                                                            
Senator  Wilken  indicated  that  he  was  uncomfortable  with  that                                                            
language.   He  asked Mr.  Johnson  to explain  how  they would  put                                                            
together regulations  that would be so tight that  they would not be                                                            
putting a  burden on 53  different school  boards to have  continual                                                            
waiver hearings.                                                                                                                
Mr. Johnson  noted that obviously  it would  be a challenging  task.                                                            
He believed  that the intention of  the Senate HESS Committee  would                                                            
be to have  it narrowly defined.   He added  that he would  preserve                                                            
regulation  that would  be narrowly  defined and  there would  be no                                                            
room for misinterpretation.   He said that they would simply look at                                                            
a student to see  if they met the requirement or not  and they would                                                            
either  be granted  a waiver  or  denied.   He explained  that  they                                                            
planned to take it out  to the Alaska public and gain their insight.                                                            
Depends on the amount of  time available.  He declared that it was a                                                            
daunting  task, but something  that the state  board was willing  to                                                            
take on and bring  back to the legislature for their  consideration.                                                            
He noted  that many  of the members  had emphasized  the  narrowness                                                            
that they desired  in the waiver process  and he did not  anticipate                                                            
that the state board would ignore that desire.                                                                                  
Senator Hoffman  wondered if Mr. Johnson would expand  on his desire                                                            
for a 2006 deadline.                                                                                                            
Mr.  Johnson pointed  out  that the  key  to defensibility  was  the                                                            
opportunity to  learn concepts.  He noted that the  key to the Texas                                                            
case  was  their  capacity  to  show  that   there  were  plenty  of                                                            
intervention  opportunities for young  people; therefore,  they knew                                                            
what  the  requirements  were  early  on  and  they  were  given  an                                                            
opportunity  for intervention.   He  explained that  in Alaska  they                                                            
have the three  benchmark exams at grades three, six  and eight.  He                                                            
said that  the 2006 deadline  would give  families and students  the                                                            
feedback from the sixth  grade and the eighth grade benchmark exams,                                                            
as well  as, the high school  qualifying exam.   He advised  that if                                                            
they stuck  with the  2004 deadline  then they  would only have  one                                                            
benchmark exam.   He concluded that collectively the  opportunity to                                                            
learn  both from  knowing the  results early  on and  more time  for                                                            
remediation and intervention  would all strengthen their capacity to                                                            
argue successfully in the court that the law makes sense.                                                                       
Senator Leman  said that  he would resist  changing the deadline  to                                                            
2006 and  believed that  the 2004  deadline would  be workable.   He                                                            
pointed out that the legislature  enacted the law in the first place                                                            
to get people  serious about standards and meeting  those standards;                                                            
therefore,  putting  it  off  for  another  two  years  would  do  a                                                            
disservice  to  the  progress.   He  noted  that  he had  seen  some                                                            
evidence  where some students  believed that  the legislature  would                                                            
not take this issue seriously  and he urged that the message be that                                                            
they were serious.   He indicated  that they would require  that the                                                            
results show  up on the transcript  and he  hoped on the diploma  as                                                            
well.  He suggested  that it be a very simple system  of endorsement                                                            
stickers or stamps.   He believed that it would be  an incentive for                                                            
students to receive those  endorsements.  He commented that he might                                                            
divert  from his colleagues  in saying  that the  math exam  needs a                                                            
little work,  but not a whole revision.   He encouraged them  in the                                                            
revision  process to not  back it off  too much  in keeping it  at a                                                            
high  school level  when it  came  to math.   He  believed that  the                                                            
process had the potential to be productive.                                                                                     
Senator  Olson  assumed  that  the children  that  were  being  home                                                            
schooled  would need to  be tested  as well.   He wondered how  that                                                            
would occur.                                                                                                                    
Senator Green  responded that  she was not  sure of the answer,  but                                                            
she believed  that they passed  legislation  two or three years  ago                                                            
that would  keep the  legislature  out of the  home school  purview.                                                            
She assumed that it applied in this case.                                                                                       
Co-Chair Kelly pointed  out that there were some home school courses                                                            
that used the  state high school curriculum;  therefore,  some would                                                            
be through private organizations and not applicable.                                                                            
Senator Green responded, "That's true."                                                                                         
Senator Olson  attempted to clarify that a student  home schooled in                                                            
rural Alaska  would not  be inhibited  in any  way from receiving  a                                                            
Co-Chair Kelly  reiterated that if  they were going through  a state                                                            
school  district  that provided  correspondence  courses  then  they                                                            
would have  to take  the test, but  if they went  through a  private                                                            
organization they would  not have to take the test rather they would                                                            
have a diploma  through that private  organization and not  from the                                                            
Senator  Wilken   requested  clarification  that   a  student  could                                                            
complete a home school  program and then if they wanted to receive a                                                            
diploma they would have the option of taking the exam.                                                                          
Mr. Johnson  explained  that they  would have  to be  enrolled  in a                                                            
public  school and  have met  the  attendance requirements  of  that                                                            
school and  all the local requirements  and the requirements  of the                                                            
exit  exam in  order to  have the  option of  taking the  exam.   He                                                            
summarized  that if  a student  was truly  home schooled  and not  a                                                            
participant  in any public program  then they would not be  eligible                                                            
to take the exit exam.                                                                                                          
JANELL PRIVETT,  testified via teleconference from  Wrangell, stated                                                            
that she was very impressed  with the work that had been done on the                                                            
bill and supported the bill the way it was currently written.                                                                   
Senator  Leman  thanked Ms.  Privett  and  noted that  the  Wrangell                                                            
community had produced  some of the best results in the early rounds                                                            
of testing and affirmed  that obviously the Wrangell School District                                                            
was doing something right.                                                                                                      
ED MCCLAIN, Assistant  Superintendent, Kenai Schools,  testified via                                                            
teleconference  from Kenai,  testified in support  of the bill.   He                                                            
thanked the  Senate HESS  Committee for their  work on the  bill, as                                                            
well as,  the Department  of Education  and Early  Development.   He                                                            
voiced  appreciation for  the encouragement  to  local districts  to                                                            
develop  additional   endorsements   and  awards  for  higher-level                                                             
achievements.  He indicated  that they also appreciated the addition                                                            
of  waivers  to  handle  the  variety  of  unexpected   and  unusual                                                            
situation.   He referred the Committee  to page 3, lines  27 through                                                            
30, with regards to the  waiver.  He commented that it would provide                                                            
a  way for  accountability  and  he  believed  that  it was  a  wise                                                            
Senator Green  thanked Mr. McClain  for his testimony and  indicated                                                            
that he had been a key  player in making the bill something that the                                                            
Committee could be proud of.                                                                                                    
Senator Hoffman offered  a conceptual amendment to delete "2004" and                                                            
insert "2006."                                                                                                                  
Senator Green objected.                                                                                                         
Senator Hoffman spoke to the amendment.                                                                                         
Senator Leman  indicated that he was  opposed to the amendment.   He                                                            
pointed  out  that  in 1997  the  previous  legislation  was  passed                                                            
effectively  setting the  date for 2002.   He  believed that  it was                                                            
appropriate  to  put  pressure  on  the  school  districts  and  the                                                            
department  to make the changes.   He also noted that they  have the                                                            
momentum now.                                                                                                                   
Co-Chair Kelly  voiced that under  the previous provisions  the bill                                                            
was more of  a "drop dead" bill, but  believed that the Senate  HESS                                                            
Committee had provided  a bill that did not present so much at stake                                                            
if a student did  not pass the exam.  He concluded  that the work of                                                            
the Senate HESS Committee removed the need to extend the date.                                                                  
Senator Hoffman  agreed with Senator  Leman and Co-Chair  Kelly, but                                                            
again the idea  of having the whole  exam held up in court  was also                                                            
very important.                                                                                                                 
Senator Green  clarified that they  would continually be  working on                                                            
improving the test.  She  pointed out that the Senate HESS Committee                                                            
was assured that all would be in order in 2004.                                                                                 
Senator Olson  indicated that  it would be  better for them  to have                                                            
more years behind them and expressed support for the amendment.                                                                 
A roll call was taken on the motion.                                                                                            
IN FAVOR:  Senator Hoffman and Senator Olson                                                                                    
OPPOSED:   Senator  Green, Senator  Leman, Senator  Wilken,  Senator                                                            
Donley and Senator Kelly                                                                                                        
The motion FAILED (5 - 2)                                                                                                       
Co-Chair Donley made a  motion to move CS SB 133 (HES), 22-LS0607/P,                                                            
from Committee with the accompanying fiscal note.                                                                               
There  was no  objection  and  CS SB  133  (HES) was  reported  from                                                            
Co-Chair Kelly  thanked the Senate HESS Committee  for the work that                                                            
they had done on the bill.                                                                                                      
SENATE BILL NO. 88                                                                                                              
"An  Act relating  to  metropolitan  planning organizations  and  to                                                            
establishment  of  a  metropolitan  planning  organization  for  the                                                            
Anchorage metropolitan  area; and providing for an  effective date."                                                            
Senator Phillips,  sponsor  of SB 88, explained  that basically  the                                                            
bill added  two members, one  from the House  side and one  from the                                                            
Senate  side,  to the  Anchorage  Metropolitan  Area Transportation                                                             
Study (AMATS) policy committee.                                                                                                 
Co-Chair   Kelly    wondered   how   many   Metropolitan    Planning                                                            
Organizations (MPOs) would be created under SB 88.                                                                              
Senator  Phillips  replied  that  there  would  be  just  one.    He                                                            
explained that under the  federal/state agreement there was only one                                                            
over 200,000;  therefore, if a community  in the North Star  Borough                                                            
reached 200,000  they would  be under the  MPO created under  SB 88.                                                            
He stated  that the  reason he  introduced the  legislation was  the                                                            
frustration that  his community had with the process,  specifically,                                                            
when a  constituent  requested that  a road be  improved the  policy                                                            
committee  would continue  to change their  meeting dates and  times                                                            
and  their  priorities.    He pointed  out  that  this  had  created                                                            
confusion and  distrust of the AMATS process by the  public. He said                                                            
that he was  getting blamed for this  when he did not even  have any                                                            
say in the process.                                                                                                             
Senator Phillips added  that the State of Hawaii had a similar AMATS                                                            
process and they allowed  for the legislature to be involved in that                                                            
Co-Chair  Kelly clarified  that  the Constitution  of  the State  of                                                            
Alaska prohibited  dual office  holdings for  profit and noted  that                                                            
this would not  be a profit making enterprise.  He  wondered if they                                                            
were creating a situation  where a few legislators would be crossing                                                            
the boundary  with regards  to the  issue of  separation of  powers;                                                            
therefore, gaining too much power over the process.                                                                             
Senator  Phillips  explained  that  essentially   the  AMATS  policy                                                            
committee would  come up with a five-year  plan and the legislature                                                             
would be unable to change  it.  He noted that of the five members on                                                            
the  policy  committee   one  would  be  the  commissioner   of  the                                                            
Department  of  Environmental  Conservation  and  one would  be  the                                                            
commissioner   of  the  Department  of  Transportation   and  Public                                                            
Facilities.   He  indicated that  they  would be  appointed and  not                                                            
elected.  He pointed  out that the mayor would be  a representative,                                                            
as well as, two assembly members.                                                                                               
Co-Chair Kelly requested clarification.                                                                                         
Co-Chair Donley clarified  that what the bill proposed to do was set                                                            
into statute what federal  law already required, which would be that                                                            
new MPOs  would have  to be done  by an act  of the legislature.  He                                                            
noted  that  when those  MPOs  did  come  along  it would  give  the                                                            
legislature  the opportunity  to address  specific  membership.   He                                                            
summarized  that  SB  88  would leave  up  to  the  legislature  the                                                            
creation of future MPOs and what their membership would be.                                                                     
Senator Hoffman  referred to the resolution passed  by the Anchorage                                                            
assembly  opposing the bill  and he wondered  what the tally  was on                                                            
the vote.                                                                                                                       
Co-Chair Donley  explained that it  was not voted on, rather  it was                                                            
put on the consent calendar and nobody objected.                                                                                
Senator Phillips affirmed that Co-Chair Donley was correct.                                                                     
Senator  Leman  stated that  the  Department  of Law's  opinion  was                                                            
consistent  with  what  they  said   in their   ruling  about  local                                                            
emergency  planning committees.   He disagreed  with the  assessment                                                            
about ten years  ago when former Representative  Eileen MaClean  and                                                            
former Representative  Gail Phillips  and himself were appointed  to                                                            
local emergency  planning committees.   He pointed out that  federal                                                            
law specifically  stated that  elected officials  would be  apart of                                                            
the membership;  therefore, the municipalities  rightfully  put some                                                            
state elected  officials  on those  committees.   He noted that  the                                                            
attorney general then came  out and said that it would be considered                                                            
dual office holding, which he believed was ridiculous.                                                                          
Co-Chair Kelly asked George  Utermohl to comment on the constitution                                                            
and also address the separation of powers issue.                                                                                
GEORGE  UTERMOHL,   Legislative  Counsel,   Legislative   Legal  and                                                            
Research  Services,  indicated   that  the  Department  of  Law  was                                                            
consistent in  addressing this legislation in previous  years before                                                            
the  legislature  that the  service  of legislators  on  MPOs  would                                                            
constitute  dual office, which was  consistent with the statute  and                                                            
the constitution.   He  added that  there was  also a good  argument                                                            
that a legislator could  not hold an office or position "of profit."                                                            
 He believed  that  they were  construing  the term  "of profit"  to                                                            
modify  not only position,  but also  office.   He pointed out  that                                                            
this legislation  attempted  to avoid that  particular concern  that                                                            
the Department  of Law had  raised, but nonetheless  that issue  was                                                            
still out there.                                                                                                                
Co-Chair  Donley said  that the "of  profit" seemed  to modify  both                                                            
office and  position.  He  wondered why they  would have that  there                                                            
Mr. Utermohl answered that it was a matter of interpretation.                                                                   
SFC 01 # 53, Side B 06:52 PM                                                                                                    
Mr. Utermohl continued  that there were other possible constructions                                                            
of that language.                                                                                                               
Co-Chair Donley wondered  why, if they were going to construct it so                                                            
that they were  standalones, would  they even need to say  "position                                                            
of profit."  He  said that it seemed like unnecessary  language as a                                                            
standalone.   He pointed  out that  they could  just say "any  other                                                            
office."  He  could not think of an  example where it would  include                                                            
"profit" where it did not already include "office."                                                                             
Mr. Utermohl  replied  that he  could see  where there  could be  an                                                            
office without compensation.                                                                                                    
Co-Chair  Donley  wondered why  they would  have  to go  on and  say                                                            
"position of  profit" if they were  going to ban all office  with or                                                            
without compensation.   He pointed out that they would  have covered                                                            
everything under the first  clause, which was a ban on dual offices.                                                            
He said  that  it would  just be  extra wordage  not  needed in  the                                                            
DEL CUMMINS,  Office of the Attorney  General, said that  it was his                                                            
second  time testifying  on this  concept  and the  facts were  very                                                            
similar that  people wanted to put  legislators on the AMATS  board.                                                            
He noted that this bill  was a radical departure from what presently                                                            
existed  on the  AMATS  board.   Currently,  the AMATS  board was  a                                                            
creature of  municipal government.   He pointed out that  there were                                                            
three voting members and two non-voting members.                                                                                
Co-Chair  Donley replied, "I  don't think that's  true."  He  argued                                                            
that the two commissioners did vote.                                                                                            
Mr. Cummins  stood  corrected.   He continued,  explaining that  the                                                            
municipal  representatives  currently  controlled   the board.    He                                                            
pointed out that  they would be changing it so the  governor and the                                                            
legislature would  be appointing people.  He further  noted that the                                                            
difficulty  in appointing legislators  would be that they  would not                                                            
be  concurring  with the  constitution  where  it states  that  they                                                            
cannot hold a dual office.                                                                                                      
Co-Chair Donley  wondered why they  would add the words "of  profit"                                                            
after "position."                                                                                                               
Mr. Cummins explained that  "position of profit" in combination with                                                            
the word  "office" just broadened  the coverage  of what it  applied                                                            
Co-Chair Donley  wondered what function the term "of  profit" served                                                            
if they had already covered all positions.                                                                                      
Mr.  Cummins   explained   that  legal  language   was  not   always                                                            
economical.   He opined that it was  merely a broader definition  of                                                            
what they were regulating.                                                                                                      
Co-Chair  Donley   said  that  the   essential  issue  was   in  the                                                            
interpretation  of the first sentence; there was no  function of the                                                            
words "of profit."                                                                                                              
Co-Chair Kelly  said that they could  probably get into an  esoteric                                                            
debate  on  this   subject,  but  he  believed  that   it  would  be                                                            
Senator  Phillips  commented that  Hawaii  allowed  for dual  office                                                            
holding and pointed out  that their constitution was very similar to                                                            
Alaska's constitution on dual office holding.                                                                                   
Senator  Hoffman referred  to  the resolution  and  wondered if  the                                                            
assembly actually voted on it.                                                                                                  
Senator Phillips indicated that they did.                                                                                       
Senator  Leman  stated  that  the  interpretation   borders  on  the                                                            
ridiculous.   He urged that the law  and the constitution  needed to                                                            
be interpreted with some common sense.                                                                                          
Co-Chair  Donley made  a motion  to move  SB 88,  22-LS0132\F,  from                                                            
Committee with the accompanying zero fiscal note.                                                                               
Senator Hoffman  objected.  He commented that the  assembly voted in                                                            
opposition  to this legislation and  pointed out that the  community                                                            
of Anchorage elected all  the assembly members.  He believed that it                                                            
was a local  issue and the assembly  should be responsible  for what                                                            
happens in  that community.   He withdrew  his objection, but  noted                                                            
that his recommendation would be "do not pass."                                                                                 
Co-Chair Kelly asked if there were any further objections.                                                                      
There was no  further objection and  the bill was reported  from the                                                            
Co-Chair Pete Kelly adjourned the meeting at 7:07 PM.                                                                           

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