Legislature(1995 - 1996)
03/27/1996 01:50 PM Senate FIN
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
March 27, 1996
1:50 p.m.
TAPES
SFC-96, #55, Side 1 and 2
SFC-96, #56, Side 1
SFC-96, #56, Side 2 (575-241)
CALL TO ORDER
Senator Rick Halford, Co-chairman, convened the meeting at
approximately 1:50 p.m.
PRESENT
In addition to Co-chairmen Halford and Frank, Senators
Phillips and Rieger were present. Senators Sharp and
Zharoff arrived shortly after the meeting began. Senator
Donley did not attend.
ALSO ATTENDING: Senate President Drue Pearce; Senator
Leman; Laurie Otto, Deputy District Attorney, Criminal
Division, Dept. of Law; Beth Kerttula, Assistant Attorney
General, Oil, Gas, and Mining Section, Dept. of Law; Annie
Carpeneti, Assistant Attorney General, Criminal Division,
Dept. of Law; Rick Cross, Deputy Commissioner, Dept. of
Education; Eddy Jeans, School Foundation, School Finance,
Dept. of Education; Dwight Perkins, Special Assistant, Dept.
of Labor; Doug Mertz, representing the Prince William Sound
Regional Citizens Advisory Committee; Pam LaBolle,
President, Alaska State Chamber of Commerce; Wanda Cooksey,
representing Single Site Schools; Eddy Grasser, Alaska
Outdoor Council; Charles Campbell, Juneau, Alaska; Susie
Gregg Fowler, Juneau, Alaska.
ALSO PARTICIPATING VIA TELECONFERENCE: Ken Donajkowski,
Audit Consultant (E.H.& S. area) ARCO Alaska, Anchorage; Dan
Elliot, representing the MatSu Citizens Advisory Board,
Wasilla, Alaska.
SUMMARY INFORMATION
SB 52 - CAPITAL PUNISHMENT FOR MURDER
Testimony was presented by Charles Campbell, Susan
Gregg Fowler, and Annie Carpeneti. CSSB 52 (Jud)
was REPORTED OUT of committee with zero fiscal
notes from the Court System and Dept. of Public
Safety and a $2.2 note from the Governor's
Office/Elections.
SB 199 - ENVIRONMENTAL & HEALTH/SAFETY AUDITS
Testimony was presented by Senator Leman, Doug
Mertz, Laurie Otto, Beth Kerttula, Pam LaBolle,
Dwight Perkins, and via teleconference by Ken
Donajkowski. Conceptual language, proposed by the
Dept. of Law, effecting an exemption for audits
and voluntary disclosures relating to the TAPS
tariff or enforcement of the state pipeline right-
of-way was adopted as an amendment for
incorporation within a Senate Finance version of
the bill. CSSB 199 (Fin) was then REPORTED OUT of
committee with a $39.0 note from the Dept. of
Environmental Conservation, a $40.0 note from the
Dept. of Natural Resources, a $66.5 note from
Dept. of Fish and Game, and zero notes from the
Dept. of Transportation and Public Facilities and
the Dept. of Military & Veterans Affairs.
SB 230 - LEG APPROVE PERM'NT RECREAT'NL RESTRICT'N
Discussion was had with Senator Pearce, Eddy
Grasser, and via teleconference with Dan Elliot.
A draft committee substitute dated 3/26/96 was
adopted. CSSB 230 (Fin) was then REPORTED OUT of
committee with a $105.8 fiscal note from the Dept.
of Natural Resources.
SB 244 - CALCULATION OF STATE AID TO EDUCATION
Discussion was had with Rick Cross, Eddy Jeans,
and Wanda Cooksey. The bill was subsequently held
in committee 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
discussion and noted a prior hearing on the bill. DOUG
MERTZ came before committee on behalf of the Prince William
Sound Regional Citizens' Advisory Committee, a non-profit
corporation formed to promote environmentally safe operation
of the Alyeska terminal and associated tanker traffic. The
group consists of 18 organizations in communities and
boroughs throughout the area impacted by the EXXON VALDEZ
spill as well as commercial fishing, aquaculture, native,
recreation, tourism, and environmental representatives.
While the group supports the fundamental goal of fostering
greater compliance with environmental health and safety
requirements through a cooperative approach that encourages
regulated entities to find and correct problems themselves,
SB 199 would not accomplish that in its current form. It
would instead invite abuse, generate more public distrust
and cynicism, and widen the chasm between regulators and
regulated entities.
The group thus recommends the following changes:
1. Eliminate the self-audit provision. It creates a
shield that is too broad and which interferes with
the public's right to know. EPA has found
that a self-audit privilege is not necessary
to encourage self-auditing by industry.
Immunity from prosecution for self-disclosed
violations is sufficient to encourage self-
auditing.
2. That regulatory agencies not request or use
environmental audit reports to initiate a civil or
criminal prosecution of a self-disclosed
violation. That is the device
successfully used by EPA.
3. More precision be added to standards language. As
an example, Mr. Mertz noted language requiring
disclosure of a violation to occur "promptly."
EPA policy requires disclosure within 10 days. He
noted the use of vague generalities in other areas
of the bill and correspondent use of precise
numbers in federal policy.
4. Immunity be narrowed so that violators are not
allowed to retain any of the economic benefits
derived from violations. Immunity should
extend only to punitive portions of
enforcement actions. That would provide for
fundamental fairness to competitors who have
complied, by eliminating the economic
advantage of noncompliance.
5. Certain provisions that presently create a safe-
haven for violators be tightened or eliminated.
Specifically, the violator should not be
able to disclose a violation and invoke
immunity after there has already been
notice of a citizen suit or a whistle-
blower complaint concerning the same
violation. The violator should also not
be able to disclose a violation and
invoke immunity if the violation has
imminently and substantially endangered
the public or the environment. The
violator should not be able to create a
permanent safe-haven by repeated or
continuous self-audits or by announcing
an audit after it already has reason to
believe a violation may have occurred.
6. Disclosure of a violation should not shield the
violator from prosecutions for other violations based
on disclosed facts or which are discovered
because of disclosed facts.
As currently written, the bill would lead to more litigation
and effectively shield the violator from future
investigations and prosecutions, even for violations that
are not voluntarily disclosed.
KEN DONAJKOWSKI, Audit Consultant (E.H.& S area) ARCO
Alaska, next testified via teleconference on behalf of the
Alaska Oil and Gas Association--a trade association whose 19
members account for the majority of oil and gas exploration,
production, transportation, refining and marketing in
Alaska. The Association supports the intent of SB 199. A
majority of members currently conduct self-audits as a means
of ensuring compliance and thus see value in the proposed
legislation.
Over the past 25 years, health, safety, and environmental
regulations have become increasingly complex. Not
incidentally, interpretation of these regulations has become
correspondingly difficult. Self-auditing identifies areas
of inadvertent noncompliance and leads to corrective action.
Self-audit is encouraged not only to ensure compliance but
to generally improve health, safety, and environmental
performance. The proposed legislation encourages greater
utilization of self-audits by providing immunity and
confidentiality.
Immunity should be offered as an incentive for companies to
identify, disclose, correct and prevent recurrence of
noncompliance. To be effective, self-auditing should be
undertaken without fear of consequences from regulatory
agencies and without concern for final outcome. Providing
immunity for deficiencies that are discovered through self-
auditing recognizes efforts by companies to comply rather
than penalizing them for those efforts. Immunities should
not, however, extend to those who knowingly and willfully
commit violations and subsequently audit in order to shield
themselves from the consequences.
Privilege further protects companies from inappropriate and
unnecessary repercussions of disclosing audit results to
agencies. It also ensures that the auditing process is not
compromised. The issue is not one of secrecy but ability to
conduct candid interviews with personnel. To remain
effective, it is necessary to preserve the integrity of the
audit process and maintain the trust and cooperation of
employees. Traditional legal privileges limit the
flexibility important to the self-auditing process. As with
immunity, there are reasonable limits to application of
privilege. It should protect the products of an audit
(audit report, working papers, and action plan), but it
should not be a vehicle to hide underlying facts.
In his concluding remarks, Mr. Donajkowski advised that SB
199 moves health, safety, and environmental compliance in a
positive direction through encouragement of self-auditing.
He urged passage of legislation containing the intent of SB
199. He reiterated that looking for deficiencies,
identifying them, disclosing them to appropriate agencies,
and correction is the essence of self-auditing. It is an
important tool for voluntary compliance. Without privilege
and immunity, voluntary self-audits can put a company at a
competitive disadvantage relative to companies that do not
audit.
Discussion followed between Senator Randy Phillips and Mr.
Donajkowski regarding the association's interaction with
various federal and state agencies on problem areas in the
proposed bill.
[Senator Sharp arrived at the meeting at this time.]
LAURIE OTTO, Deputy Attorney General, Criminal Division,
Dept. of Law, came before committee. She said that while
the intent of the bill is good, she would speak to the
effect of the legislation on prosecutors. Two things impact
ability of the state to prosecute crimes involving
environmental or health and safety laws:
1. Privileges as they apply to criminal prosecution.
2. Immunities.
It is the opinion of the Dept. of Law that the combined
effect of the foregoing provisions "is to make it impossible
to prosecute any offense where an environmental audit
privilege is claimed." The bill makes an exception for "bad
actors." The definition of "environmental audit," at the
end of the bill, is so broad that "anything could fall
within it." There are no standards, certification, or
licensing requirements for auditors. There is broad
disagreement, within the field, on what constitutes an
environmental audit. Presumably, a bid proposal for cleanup
would be considered privileged under the bill.
The extent of the privilege is not carefully delineated.
Every witness interview, document, scientific test, gathered
pursuant to what is identified as an audit would be
privileged. The bill provides a full, complete, and
absolute shield against provision of "any document to the
state and against prosecution of anybody." It would allow
companies to "go in and vacuum up every piece of evidence
that might be incriminating, . . . under the shield of an
environmental audit." Environmental crimes are regulatory
offenses. Like any other white collar offense, they are
proven with documents generally obtained from the offender.
If the legislature does not want environmental offenses
prosecuted as crimes, it would be easier and more
straightforward to eliminate criminal penalties for the
crimes covered by SB 199. Retention of such crimes in
statute and passage of the proposed bill would give the
appearance of ability to prosecute. The public would then
demand the filing of charges in areas where the department
has no practical ability to prosecute.
Ms. Otto said she asked staff in the office of special
prosecutions and appeals to review the legislation to
determine whether arguments around cited problems could be
made. She then advised that the view presented by staff was
"even more negative than what I'm expressing to you today."
Ms. Otto said that since the proposed bill is modeled on
Texas law, she contacted the national district attorneys
association to determine what the national experience has
been. The response indicated experience similar to cited
concerns. The association unanimously passed a resolution
against "this kind of legislation." Ms. Otto referenced
both the resolution and correspondence from the association,
outlining problems experienced with similar legislation.
Senator Randy Phillips expressed frustration over department
criticism of the legislation in the absence of suggested
alternatives or corrective provisions. Ms. Otto said that
EPA has a model that appears to work effectively. There are
also other things that can be done from a prosecution
standpoint. She cited ability of a judge who sentences a
corporation for a crime discovered as a result of an audit
to take that into account at sentencing. Language could
lower the class of offense if discovered via audit.
Further, provisions could require that documents be turned
over to the state but not utilized in court. The state
would, at least, have access to documents to evaluate what
is and is not admissible. The current bill creates a bar to
receipt of documents and provides companies transactional
immunity from prosecution.
Ms. Otto explained that environmental regulation is not her
field. She advised that she was merely telling members what
effect the bill would have on prosecutors who are asked to
enforce legislation. She said she was providing practical
information "about what this bill does." She further
advised that the legislation should not be applied to the
"criminal arena." The state should not let those who are
knowingly and intentionally violating the law "off the
hook." That does not help anybody in the industry since it
provides a competitive advantage to wrong-doers. Tightening
the bill and providing definitions would help.
PAM LaBOLLE, President, Alaska State Chamber of Commerce,
next came before committee in support of the legislation.
She asked that members keep in mind the goal of having
regulations that protect the environment, health, and
safety. Having "everyone comply with those regulations"
makes the bill "very reasonable." It allows those who have
inadvertently been out of compliance to voluntarily correct
the situation without fear of prosection. There is no
incentive for self-audit if the end result is liability for
fines, jail, and lawsuits. The legislation provides an
opportunity to reach the goal of a partnership between
business and government. Similar legislation has been
successful in other states.
[Senator Zharoff arrived at the meeting at this time.]
In response to questions from Senator Phillips, Mrs. LaBolle
noted that self-audits discover things "that nobody knows
about." The state does not have enough regulators and
enforcers to find them. The proposed bill would put
business in the position of "helping to bring these about."
BETH KERTTULA, Assistant Attorney General; Oil, Gas, and
Mining Section; Dept. of Law; next came before committee.
Co-chairman Halford asked what would need to be changed,
within the bill, to remove application to tariff cases and
associated fiscal implications. Ms. Kerttula noted that, as
presently written, privilege sections impact self-audit
information now received from pipeline owners and Alyeska.
Those provisions would have to be rewritten so that the
privilege would not apply. The state currently receives
both safety and environmental audits. Further, immunity
provisions would impact state ability to recover under the
existing tariff. Exemption of the tariff and APUC-related
filings could solve the problem.
Discussion followed between Ms. Kerttula and Co-chairman
Halford regarding placement of exemption language within
CSSB 199 (Res). Ms. Kerttula expressed need for time within
which to develop appropriate language. She also said she
could not guarantee that the "fix" would work. She advised
she would attempt to craft an appropriate amendment.
Senator Leman, sponsor of the legislation, came before
committee referencing comments in support of the "intent" of
the bill. He then described past discussions with the Dept.
of Law regarding provisions within the legislation. He
concurred that the bill "does the good things," but he said
he did not agree that it would have the negative impact
suggested by the department. The sponsor stressed that the
intent is greater compliance with environmental laws and
increased worker safety. He took exception to misstatements
regarding the contents of the bill.
Referencing comments by Ms. Kerttula relating to tariff
problems, Senator Leman suggested that she was "probably
reaching a little far." It is not the intent that the
legislation prevent the state from moving forward on tariff
cases. He agreed that some measure of comfort could be
provided if the issue was clarified under "non-privilege
materials."
The sponsor referenced comments by Ms. Otto, and voiced
reluctance to define "exactly what constitutes an audit."
He further noted that 17 other states have passed similar
legislation and cited some of the provisions adopted by
those states.
Senator Sharp attested to slow-downs by representatives of
the administration who offer nothing tangible as an
alternative. He then described a past situation in which an
offer by OSHA for voluntary inspection led to successive
OSHA monitoring. He expressed need for legislation that
provides for voluntary audit and compliance without fear of
administrative repercussions.
Senator Zharoff asked if the legislation would impact
ongoing cases. Would it limit state ability to obtain
information and necessitate state expenditures to obtain
reports and information now routinely received from
companies? Co-chairman Halford noted that the bill applies
to environmental and health and safety audits conducted "on
or after the effective date." Senator Leman referenced page
4, line 4, and explained that privilege does not apply if a
person or company is required to report specific information
to the state. Senator Zharoff noted correspondence from the
Dept. of Law indicating that in the case of the 1995 tariff
case, it would have cost approximately $25 million to
conduct needed audits. If the proposed bill is enacted, the
state will not have access to that type of information and
would have to bear the cost of obtaining it. Senator Leman
said he did not want to compromise state ability to pursue
tariff cases. He voiced his belief that necessary tariff
information, which is presently being provided, would be
exempt under provisions at page 4, lines 4 through 15. He
further advised that he would not object to clarifying
language. Information needed for tariff cases should be
part of the operating permit.
The sponsor again stressed lack of state resources to police
operations and need for voluntary efforts toward compliance.
Co-chairman Halford asked that Ms. Kerttula prepare
conceptual language dealing with pipeline tariff cases under
non-privileged material provisions.
Senator Rieger referenced discussion concerning the intent
of the bill versus the manner in which it is drafted. He
voiced his recollection that Captain Hazelwood was
ultimately "let off" because he voluntarily disclosed the
EXXON VALDEZ oil spill. He cautioned that the committee
must "think through" how the bill is written.
END: SFC-96, #59, Side 1
BEGIN: SFC-96, #59, Side 2
Senator Leman countered the foregoing comment by voicing his
belief that Captain Hazelwood got off because the jury made
a bad decision "about his state of intoxication." He
stressed that for privilege and immunity to apply, the
agency must be notified in advance that a self-audit is
being performed. It would thus not apply in the Hazelwood
situation.
Co-chairman Halford raised a question regarding potential
loss of federal funds should the state program be less
stringent than OSHA requires. Mr. Leman said he was
satisfied that would not occur under the proposed bill. It
is not the intention that that occur. He reiterated that 17
other states have adopted similar legislation and suggested
that they would not knowingly jeopardize their federal
funding.
Senator Zharoff sought clarification of language at page 6,
subsection (g). Senator Leman explained that the state
cannot initiate an inspection solely upon receiving notice
of self-audit.
DWIGHT PERKINS, Special Assistant, Dept. of Labor, came
before committee. He explained that Alaska presently has a
state plan and total jurisdiction over safety and
environmental review through federal funding. The program
consists of auditing and compliance. If a company asks that
the department perform an audit, the information becomes
privileged. Staff then works with the company to achieve
compliance. Audit information is not shared with
enforcement staff. Alaska has the only state plan of that
kind. The federal government requires that the state be as
stringent as federal requirements. If that is not the case,
funding is jeopardized, and OSHA functions will revert to
the federal government. Senator Leman suggested that EPA
has made similar threats to other states. That agency has
not changed its policy to encourage self-audits.
Mr. Perkins advised of initial discussions with the sponsor
to the effect that the department would have no problem with
the bill if it does not change current operations and impede
inspectors. Following introduction, the department found
areas of concern. The Commissioner does not want to put the
federal government to the test with a program that is less
stringent. Mr. Perkins stressed major concerns regarding
worker safety. He noted that the bill would remove part of
the department's enforcement powers. The state faces the
possibility of losing its plan. He then referenced
correspondence from Region 10, sharing those concerns.
Senator Leman stressed that the issue is not whether or not
the state receives audits that are already being done. The
balance is self-audit and subsequent attempts at compliance
versus no audits and "not knowing what you're doing wrong."
The intent is to encourage audits and corrective action.
Discussion of compliance plans followed between Senator
Leman and Senator Zharoff.
Co-chairman Halford referenced the following conceptual
amendment proposed by the Dept. of Law:
Page 1, line 8:
Except for any audit reports relating to
the TAPS tariff or enforcement of the
state pipeline right-of-way.
Page 4, line 17:
Except for any voluntary disclosures
relating to the TAPS tariff or
enforcement of the state pipeline right-
of-way.
Senator Phillips MOVED for adoption. No objection having
been raised, the amendment was ADOPTED.
Co-chairman Halford next queried members regarding
disposition of the bill. Senator Sharp MOVED for passage of
CSSB 199 (Fin) with accompanying fiscal notes. Senator
Zharoff OBJECTED. Co-chairman Halford called for a show of
hands. CSSB 199 (Fin) was REPORTED OUT of committee on a
vote of 4 to 1, accompanied by the following fiscal notes:
Dept. of Military and Veterans Affairs 0
Dept. of Transportation and Public Facilities 0
Dept. of Environmental Conservation 39.0
Dept. of Natural Resources 40.0
Dept. of Fish and Game 66.5
Senator Sharp signed the committee report with a "do pass"
recommendation. Co-chairmen Halford and Frank and Senators
Phillips and Zharoff signed "no recommendation." Senator
Rieger indicated need for amendment.
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 52
An Act authorizing capital punishment, classifying
murder in the first degree as a capital felony, and
establishing sentencing procedures for capital
felonies; authorizing an advisory vote on instituting
capital punishment; and providing for an effective
date.
Co-chairman Halford directed that SSSB 52 be brought on for
discussion and referenced CSSSSB 52 (Jud). He explained
that the judiciary version provides only for an advisory
vote on the issue of capital punishment. The only reason it
was referred to Finance is the $2.2 fiscal note from the
Division of Elections.
CHARLES CAMPBELL first came forward to speak to the bill.
He advised that he came to Alaska in 1979 as director of
corrections and would be testifying based on many years of
experience in criminal justice.
He voiced his belief that an advisory vote on capital
punishment could initiate a public policy with tremendous
costs in the future. Further, an affirmative majority on
the advisory vote will make it extremely difficult for
legislators to vote against the death penalty. Since the
death penalty would not be good for Alaska, the committee
would be prudent to set the bill aside until there is
opportunity for additional research beyond that conducted in
Senate Judiciary.
If presented to the public at this time, Alaska's residents
will be voting on the basis of "a great deal of
misinformation." It would be a disservice to present the
question to voters under those circumstances.
Mr. Campbell voiced his belief that there are no rational
arguments in favor of the death penalty. He then referenced
evidence which he said indicates that the death penalty in
America "has caused murders that might have otherwise not
been committed." Death penalty states consistently show
higher murder rates than states without capital punishment.
Reinstitution of the death penalty has preceded increases in
murder rates. Canada abolished the death penalty in 1976,
and the murder rate decreased. In the past year, the state
of Texas executed three times more prisoners than any other
state, and the murder rate in Texas is 14 per 100,000--twice
the national average. Review of the death penalty in New
York State over a 60-year period (1906-1966) evidences a
pattern of two additional murders during each month
following one or more executions. Findings indicate that
those who are predisposed to violent behavior are more
likely to be incited than deterred by the prospect of
execution. Mr. Campbell acknowledged that statistics
provide indications rather than absolute conclusions.
Mr. Campbell said he recognized the political appeal of
capital punishment, particularly in districts where
constituents feel strongly about the issue. While most
people believe in the death penalty from time to time, for
particular crimes, when all facts are considered, there are
no arguments in favor of it. There are no national
organizations working for perpetuation of the death penalty.
A better approach would be for the legislature to research
what is happening throughout the United States and provide
information to constituents. In his closing remarks, Mr.
Campbell stressed that capital punishment is not good public
policy. It will not control crime.
Senator Randy Phillips referenced prior advisory votes and
noted that the legislature took no action based on any of
them. Mr. Campbell suggested that on this issue the
legislature should advise the voters rather than the voters
advising the legislature. Senator Phillips said that voters
would review the facts prior to a vote. Mr. Campbell
suggested that the right information might not be provided.
Surveys indicate that the majority thinks the death penalty
is inexpensive and would save money.
SUSIE GREGG FOWLER next came before committee. She voiced
concern that the intent of the advisory vote is to limit
discussion on merits and costs of capital punishment. That
discussion should occur with statewide public participation.
Presenting Alaskans with an advisory vote on capital
punishment would be a great disservice in that many
residents are not well informed about current punishment for
those convicted of murder. A recent poll shows that 78
percent of Alaskans believe that those convicted of first
degree murder are released after one to twenty years. In
fact, there is no release after twenty years, and the
average sentence is eighty to ninety years. People are
frightened by stories of those who get out and kill again.
Those stories have remained in the mind of the public rather
than actual facts about what the criminal justice system
provides.
A second problem with the advisory vote relates to the
question being asked. The death penalty information center
released a report, three years ago, which indicated that
when the public is simply asked whether it is for or against
the death penalty, a high percentage (77%) responds
affirmatively. When asked if they support the death penalty
or life without parole plus restitution, support for capital
punishment dropped to 49 percent, and 44 percent preferred
life imprisonment. Opposition to the death penalty does not
suggest that one is soft on crime. At issue is the moral
question of life or death and the appropriateness of the
state taking a life.
Mrs. Fowler voiced need for leadership which does not pander
to public fears but seeks different opinions and then makes
courageous and responsible decisions. She suggested that
there is no compelling reason for the advisory vote.
ANNIE CARPENETI, Assistant Attorney General, Criminal
Division, Dept. of Law, next came before committee voicing
opposition to the bill. She stressed that the death penalty
is an extremely difficult subject. It is associated with
issues that need debate within the legislature. Asking a
single question for or against capital punishment is unfair.
Will voters know that it costs from three to six times more
to execute a prisoner than to house an inmate for the rest
of his or her life?
Ms. Carpeneti next spoke to problems capital punishment
would cause prosecutors because it "skews the case law for
all cases." Many decisions in a criminal case are committed
to the discretion of a trial judge. When the stakes are as
high as the death penalty, judges will want to ensure that
they are correct. They will bend over backwards to do so.
The criminal justice system is not perfect. It has resulted
in execution of innocent people in the past. There is no
reason to expect that will not occur in the future. No
information evidences that capital punishment deters murder.
The Dept. of Law is getting long sentences for those
convicted of first degree murder.
In territorial days, when capital punishment was in effect,
evidence indicates that non-whites were executed at a much
higher rate than whites, for similar offenses. This is a
problem all states with death penalty provisions are
attempting to address.
In her concluding remarks, Mrs. Carpeneti advised that the
death penalty is wrong. Violence should not be answered
with violence. Research shows that if a single question, as
contemplated by the advisory vote, is placed before the
public, the response is affirmative. A selection of options
provides a much different response. There is concern that
an advisory vote asking only one question will be perceived
as a public mandate.
Comments followed by Senator Randy Phillips reiterating
earlier statements that the legislature has not, in the
past, acted on advisory votes.
Senator Sharp requested a brief at ease.
RECESS - 3:15 P.M.
RECONVENE - 3:30 P.M.
Senator Sharp MOVED that CSSSSB 52 (Jud) pass from
committee. Senator Zharoff OBJECTED. Co-chairman Halford
called for a show of hands. The motion carried on a vote of
5 to 1, and CSSSSB 52 (Jud) was REPORTED OUT of committee
with a $2.2 fiscal note from the Office of the Governor
(Division of Elections) and zero notes from the Dept. of
Public Safety and the Alaska Court System. Co-chairmen
Halford and Frank and Senators Phillips and Sharp signed the
committee report with a "do pass" recommendation. Senators
Rieger and Zharoff signed "no recommendation."
SENATE BILL NO. 244
An Act relating to state foundation aid and
supplementary state aid for education; and providing
for an effective date.
Co-chairman Halford directed that SB 244 be brought on for
discussion. RICK CROSS, Deputy Commissioner, Dept. of
Education, came before committee accompanied by EDDY JEANS,
School Foundation, School Finance, Dept. of Education.
END: SFC-96, #55, Side 2
BEGIN: SFC-96, #56, Side 1
Mr. Cross referenced the 20 percent test that must be met to
include $35 million in federal funds in the foundation. He
further advised that SB 244 deducts 95 percent from REAAs as
opposed to 90 percent of federal impact aid, but it also
redistributes back a $500.00 unit value to ensure that the
20 percent disparity test is met.
Senator Sharp asked how the bill would impact the current
per student rate flowing to districts. Mr. Jeans said it
would increase the per student allocation in some instances
and decrease it in others. He noted that the legislature
has traditionally provided supplemental funding for single-
site school districts. He pointed to the current $1.2
million supplemental request and said that it is equivalent
to a $500.00 allocation to REAAs, per instructional unit.
The proposed bill would increase the impact aid deduct to
offset that cost. Mr. Jeans next pointed to an accompanying
fiscal note reflecting a net general fund increase of
$224.0.
Co-chairman Frank voiced appreciation for the department's
attempt to develop an approach that is "somewhat neutral in
terms of costs and revenues." He then asked how much of the
cost is attributable to single sites and how much relates to
the new allocation for disparity. Is that fully offset by
the increased deduct, except for the $224.0? Mr. Jeans
responded that the fiscal note does not address the single-
site allocation because it is currently built into the
department K-12 operating budget. Increase of the deduct
from 90 to 95 percent saves the state slightly over $1
million. Single-site funding totals $3,149.0. In response
to a further question from Co-chairman Frank, Mr. Jeans
acknowledged disparity costs of $1.2 million in FY 96.
Co-chairman Frank asked if the department considered
increasing disparity to 97 or 98 percent to make it totally
revenue neutral. Mr. Jeans explained that the increase from
90 to 95 percent was the recommendation of the foundation
task force. That recommendation was forwarded to the state
board of education, approved, and forwarded to the
Governor's Office. Co-chairman Frank referenced resistance
to supplemental funding and a movement to make SB 244 apply
to the FY 96 allocation to produce a revenue neutral
situation for FY 96 and the future. Mr. Jeans cautioned
that the situation would not be revenue neutral for all
school districts. A small number would be adversely
impacted by that approach. The problem relates to the
increase in the 5 percent deduct versus the $500.00
allocation. Mr. Jeans next directed attention to the three-
column spread sheet attached to the fiscal note and
explained the significance of each column.
Senator Sharp noted that Anchorage receives $3,847.00 in
state funds per student while other districts receive from
$10,000.00 to $24,465.00. It appears that the proposed bill
would increase that spread rather than provide a "true fix"
for state aid. Mr. Jeans acknowledged that some districts
would benefit from increased revenue per student. If those
numbers were divided by the number of students served, the
increase would "be very minimal on a per-student basis."
Senator Sharp commented that all the increases would go to
districts that are "probably a little bit above average
already on ADM." Mr. Jeans acknowledged that might be true.
Senator Sharp next asked about the effort to revamp the
entire foundation formula. Mr. Cross said that the state
board of education had met three times, as a committee of
the whole, to work on the issue. Two more meetings are
scheduled to work on a new foundation formula that will be
significantly different from that before members today.
Senator Rieger asked if disregard of 2 mills of local effort
would achieve the same disparity numbers as those proposed
in SB 244. Mr. Jeans explained that the disparity is caused
by excess local contributions that districts are allowed to
make over and above 4 mills. Lowering that to 2 mills would
increase disparity. Local effort would have to be increased
to lower disparity. Senator Rieger suggested that the
excess could be taken off the top rather than from the
required minimum. There are a variety of ways to come
within federal guidelines.
Senator Rieger next voiced his understanding that the state
of Kansas, which is at 25 percent disparity, is planning to
"take it to Congress and get the law changed rather than try
to meet the 20 percent disparity." Mr. Jeans concurred in
that understanding.
Co-chairman Frank noted that it is difficult to increase
dollars to districts that appear to be getting the most per
student. He then asked if that results from a requirement
that disparity be calculated in the same fashion as moneys
are distributed. Mr. Jeans explained that the department
could compute the disparity test on a per-pupil basis. That
standard was computed and, excluding all exceptions allowed
under federal law, it came out worse at 27 percent. Co-
chairman Frank asked that computations be provided for
committee review.
Discussion followed concerning the possibility of changes at
the federal level. Mr. Jeans explained that the impact aid
program was reauthorized through 1999. The disparity drops
to 20 percent for FY 98 and 99. Mr. Cross stressed that the
administration believes the proposed bill is the best
solution at this time, rather than for all time. Until the
foundation is substantively changed, this is the best way to
meet present rules.
In response to a question from Co-chairman Halford regarding
funding for pupil transportation, Mr. Jeans explained that
transportation moneys are allocated to a special revenue
fund outside of the disparity standard. Disparity is
measured on the operating fund only. Capital and federal
programs are also outside.
Co-chairman Frank voiced his understanding that the single-
site issue is separate from the disparity issue. Mr. Jeans
concurred. He added, however, that the department would
encourage inclusion of the single-site allocation within the
foundation program. The federal government has taken note
of the single-site appropriation outside of the foundation
formula and has put the department on notice that it appears
Alaska is creating an entitlement program, and the state's
determination could be in jeopardy.
WANDA COOKSEY, representing single-site school districts,
came before committee and directed attention to file
materials (copies on file in the master Senate Finance
Committee file for SB 244). She explained that the formula
in Sec. 4 is the formula the single-site school district
consortium has requested for the last several years. It is
also the formula used to determine the grant amount.
Ms. Cooksey noted that there is no fiscal note relating to
single-site funding because it does not involve new money.
It is in the department budget.
Co-chairman Halford asked for a list of single-site
districts and the funding they receive. Ms. Cooksey
directed attention to the attachment to the transmittal
letter from the administration.
In response to a question from Senator Zharoff, Ms. Cooksey
said that the proposal was agreed to by all the single
sites, the state board of education, the school board
association, the school administrators association, and NEA.
Co-chairman Halford noted that additional people who signed
up to testify on the bill were no longer present and
suggested that SB 244 be set aside pending their return.
SENATE BILL NO. 230
An Act providing that state land, water, and land and
water may not be classified so as to preclude or
restrict traditional means of access for traditional
recreational uses.
Co-chairman Halford directed that SB 230 be brought on for
discussion and directed attention to a work draft committee
substitute (9-LS1538\R, Luckhaupt, 3/26/96). SENATE
PRESIDENT DRUE PEARCE, sponsor of the legislation, came
before committee. She explained that she introduced the
bill to protect the right of Alaskans to access state land
and water for recreational use.
Several things, specific to Denali State Park, have occurred
which led to introduction. The state division of parks
closed Curry Ridge (a traditional landing area) within
Denali State Park to aircraft use. Further, an area
adjacent to the park, containing Blair Lake, was transferred
to the division of parks by the division of land under an
ILMA. Since transfer, the area has been managed as though
it was part of the park, and access to the lake has been
closed as part of that management effort.
Sec. 1 of the work draft adds a new section to the list of
department duties so that the division will be required to
provide the legislature an annual report on any designation
of incompatible use that prohibits or restricts traditional
access.
Sec. 2 adds a further section to the list of duties required
under AS 41.21.020. Language within the new section says
that the department may not manage, as special purpose park
land, areas that are not inside park boundaries as
designated by the legislature. The new provisions do not
prohibit the division of parks from operating recreational
sites, under present authority.
Sec. 3 adds slightly under 11 acres of land to the Chilkat
State Park. This provision was included in the work draft
at the request of the department. The three parcels
involved were purchased by the department in the late 1970s.
They were transferred to park management using an ILMA
arrangement, but they were never designated as part of the
park. Since the legislature mandates that land acquired by
the department be managed under the more open statute, the
department asked that the land be added to the park. This
area has been managed as a park since purchase.
Sec. 4 is specific to Denali State Park. The park was
designated by the legislature in the late 1960s. It was
extremely remote at the time and lacked today's access.
There is no special management requirement for traditional
access in statutes designating the park. Sec. 4 thus adds a
description of incompatible uses. Language requires that
management regulations provide ample access for sport and
subsistence hunting. Regulations must:
1. Recognize that traditional subsistence and
recreational activities include the use of small
outboard motors and snow machines.
2. Permit reasonable access by aircraft for
recreational purposes.
3. Provide ample access for recreational mining.
Sec. 5 specifies that past regulations and regulations
currently being promulgated for Denali State Park will take
effect only if consistent with provisions in the proposed
bill. Regulations that are not consistent would be
annulled.
Senator Pearce next addressed a new fiscal note. She
acknowledged there would be fiscal impact stemming from the
annual report to the legislature, but she said that the
entire Denali State Park master plan need not be completely
rewritten. There is thus no need for additional natural
resource officers and associated costs. The four
designations in Sec. 4 are the only things that must be
changed within the master plan.
Co-chairman Halford referenced similar overreaching closures
by the Dept. of Fish and Game and asked if they had also
been considered when the proposed bill was developed.
Senator Pearce responded negatively. She surmised that the
situation at the Dept. of Fish and Game is similar.
Research relating to the proposed bill indicates that the
Dept. of Natural Resources had no specific authority to
effect closures. The action was taken because no one has
challenged it in the past.
Brief discussion followed regarding access by various types
of aircraft (wheels, skiis, floats).
Senator Pearce attested to department closure of access to
recreational areas to Alaskans in deference to an unfettered
experience for visitors to the park. Co-chairman Halford
voiced his understanding that environmentalists testified
that the situation was badly handled in terms of the vested
interest of the commercial operator versus other users.
Co-chairman Halford further voiced frustration over
department closure of lakes, transferred to the state as
navigable waters, to float plane landings. He then
suggested an amendment disallowing that practice unless
there is a compelling public purpose. Senator Pearce said
she would have no problem with the amendment, but she
questioned whether it would fit under Title 41--the subject
of the proposed bill. Title 38 legislation by
Representative Masek was noted as an alternative. Senator
Pearce said she would also be willing to pursue questions
raised by Dept. of Fish and Game closures. Co-chairman
Halford expressed a preference for movement of the bill, at
this time, as long as cited areas could be addressed in
Rules or on the Senate Floor.
Senator Rieger referenced an amendment which he explained
draws a distinction between park service action that
squeezes out traditional access at historic levels as
opposed to increasing access beyond that level. The
amendment would add "at the level it has historically been
conducted" to language at page 3, line 15 and line 21.
Discussion followed regarding definition of the word
"level." Co-chairman Halford referenced allocation problems
associated with limiting the number of users. He noted that
it is easier to limit activities that have not yet occurred.
END: SFC-96, #56, Side 1
BEGIN: SFC-96, #56, Side 2
Senator Sharp voiced opposition to strengthening department
authority to manage people. Senator Rieger withdrew his
amendment at this time. Senator Sharp MOVED for adoption of
CSSB 230 (Finance). No objection having been raised, CSSB
230 (Finance) was ADOPTED. Senator Rieger then MOVED for
adoption of his amendment. Senator Pearce voiced concern
that amendment language would prohibit commercial activity
within park areas. She clarified that the proposed bill was
not intended to prohibit commercial operations. It seeks to
ensure that commercial activity is not given preference over
access for Alaskans. Senator Rieger explained that the
amendment applies to language dealing with actions that
prohibit or restrict traditional means. He referenced
competing motorized and non-motorized activities in Chugach
State Park and explained that the amendment would provide
direction to the department to maintain the status quo
rather than give preference to one over the other. Co-
chairman Halford called for a show of hands. The motion
failed on a vote of 2 to 4.
Discussion followed regarding regulations for Denali State
Park and Chugach State Park. Senator Pearce explained that
when the majority of Alaska's parks were designated, the
legislature did not specify uses that would be incompatible
because recreational areas were not experiencing the
pressures of today. She then cited AS 41.21.110 from
statutes designating the Chilkat State Park:
The commissioner shall designate, by regulation,
incompatible uses within the boundaries in
accordance with 41.21.110, and those incompatible
uses shall be prohibited or restricted as provided
by regulation. Nothing in this section affects
the rights and uses of water and facilities in the
city of Haines located within the boundaries of
this area.
In designating this more recent park, the legislature made
provisions for uses that had to be continued. Language
within 41.21.020 (the general purposes section for parks)
merely says that the "department shall adopt regulations
governing the use and designating incompatible uses within
the boundaries of state parks." There is no definition of
"incompatible uses." There had been no problem in Denali
until recently.
EDDY GRASSER, representing the Alaska Outdoor Council, next
came before committee in support of the bill. He referenced
a recent edition of an Anchorage based environmental group
newsletter and noted that it raises concern over the "tiny
amount of land in Alaska that has been set aside for . . .
quiet recreation." Mr. Grasser stressed that two-thirds of
Alaska has been set aside for that type of recreation while
other Alaskans have been restricted to "these types of areas
along the road system." He further spoke to lack of
vehicular access to many park areas. Most of Alaska is off
limits to "non-quiet" recreational purposes. The proposed
bill represents a balancing proposition. Park lands belong
to all Alaskans rather than to a specific group. The
proposed bill protects traditional activities on these
lands.
DAN ELLIOT, representing the MatSu Citizens Advisory Board,
next testified via teleconference from Wasilla. He spoke
against the legislation, terming it a "poor bill, both in
its intent and also in its imprecise language," and
suggested that it caters to a lobbying effort. Mr. Elliot
explained that development of the Denali State Park
masterplan included the public, at all stages, over a number
of years. The plan evolved through compromise and
consensus. It protects the resource while accommodating all
user groups and prepares for increased pressure on park
resources. The proposed bill negates the masterplan, takes
management of the park away from the department, and vests
control in the legislature which is reacting to interests
that seek to bypass the public process and masterplan.
Mr. Elliot noted that the alpine terrain of Curry/Kesugi
Ridge is recognized as a "unique, fragile, natural resource"
recommended to be subject to restricted uses. Vast areas of
the park are open to snow machines, four-wheelers, and
aircraft. But special management considerations were
recommended for Kesugi Ridge to provide both Alaskans and
visitors an areas free from motorized access. The park plan
attempts to accommodate all user groups.
Mr. Elliot cited the new Princess Hotel, road access, and a
number of other activities as evidence of increased use of
the area. He reiterated that lobbying efforts are
attempting to bypass the exhaustive public process that led
to the masterplan. The proposed bill not only negates that
process, it makes no provisions for a new masterplan. It
allows no provisions for dealing with all user groups in a
compatible way. It is imprecise in defining traditional,
historical, popular use, providing ample access, reasonable
access, etc. If the legislature intends to take over park
management, it "better get specific." Most activities
listed in the bill have only sporadically occurred and
increased demand has been fairly recent. The proposed bill
ignores its negative impact on future uses and resulting
incompatibilities. Mr. Elliot asked that the legislature
not supplant the exhaustive public process and place an
unmanageable situation upon the Dept. of Natural Resources.
Senator Randy Phillips noted that the bill appears to have
undergone major transformations from the original, dealing
with Title 38, to CSSB 230 (Res) which relates to Title 41.
Senator Pearce acknowledged that it changed in many
respects. Application changed from public lands statutes to
public resource statutes when the department pointed out
that attempting to place provisions within Title 38 would be
"overkill" in terms of specific park management. Inclusion
within Title 38 would have led to "a number of fairly
unsurmountable problems in . . . management of other state
lands." Title 41 was the better place for proposed
language. The drafter made the initial decision to use
Title 38. He subsequently agreed that Title 41 was
preferable.
Co-chairman Halford queried members regarding disposition of
the bill. He said he would research the question of
aircraft access on navigable waters. Senator Rieger voiced
concern over impact on Chugach State Park because of the
way traditional access and activities are defined. He
suggested that failure of his amendment and subsequent
passage of the bill would upset a balance in that park.
Senator Zharoff raised concern relating to traditional uses
and advised that he would work with the sponsor.
Senator Sharp raised a question regarding ILMAs. Senator
Pearce explained that they are "interagency land management
agreements" authorized under Title 38 and administered by
the division of land. They provide for land transfers to
all agencies for purposes such as material sites for the
Dept. of Transportation and Public Facilities,
telecommunications repeater sites for the division of
communications, fire bases for the division of forestry,
etc.
In response to a further question from Senator Sharp,
Senator Pearce advised that ILMAs are not always adjacent to
parks. She noted the Chilkoot Trail, the Eagle Trail
Recreational Site, and the Sitka Historical Site as
examples. These areas have been designated through ILMA
transfers, and the division of parks manages them as state
recreational sites, state historical sites, etc. This
arrangement has provided more land to division management
than the legislature has designated. However, the
legislature set up the process so the state could take
advantage of such areas.
Senator Sharp MOVED for passage of CSSB 230 (Finance) with
individual recommendations and accompanying fiscal notes.
No objection having been raised, CSSB 230 (Finance) was
REPORTED OUT of committee with a $105.8 fiscal note from the
Dept. of Natural Resources. Co-chairmen Halford and Frank
and Senator Sharp signed the committee report with a "do
pass" recommendation. Senators Rieger, Phillips, and
Zharoff signed "no recommendation."
ADJOURNMENT
Co-chairman Halford announced that the committee would
continue discussion of legislation listed on the agenda at
8:30 a.m. the next morning. The meeting was adjourned at
approximately 4:45 p.m.
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