Legislature(2001 - 2002)
03/26/2001 06:03 PM Senate FIN
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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 26, 2001
6:03 PM
TAPES
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.
PRESENT
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
board.
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
diploma.
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
state.
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
decision.
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
Committee.
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
process.
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
otherwise.
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
constitution.
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
to.
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
challenged.
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
Committee.
ADJOURNMENT
Co-Chair Pete Kelly adjourned the meeting at 7:07 PM.
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