Legislature(1993 - 1994)
04/22/1993 02:35 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 22, 1993
2:35 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Suzanne Little
Senator Dave Donley
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 254(JUD) am(ct rule fld)
"An Act relating to open meetings of governmental bodies."
CS FOR HOUSE BILL NO. 136(FIN)
"An Act relating to revocation of and limitations on a
driver's license; to the offenses of driving while intoxicated
and refusal to submit to a breath test; imposing a limited
license fee; amending Alaska Rule of Civil Procedure 32(b);
and providing for an effective date."
CS FOR HOUSE BILL NO. 236(RLS) am
"An Act relating to notices for the sale of certain real
property."
CS FOR HOUSE BILL NO. 113(FIN)
"An Act regulating the solicitation of contributions by
charitable organizations and paid solicitors and the
solicitation of sales by telephonic means; and amending Alaska
Rules of Civil Procedure 79 and 82."
PREVIOUS SENATE COMMITTEE ACTION
HB 254 - See Judiciary minutes dated 4/21/93.
HB 136 - See HESS minutes dated 4/21/93.
HB 236 - No previous action to record.
HB 113 - No previous action to record.
WITNESS REGISTER
Kent Swisher
Alaska Municipal League
217 2nd St.
Juneau, AK 99801
POSITION STATEMENT: Offered information on HB 254
Representative Al Vezey, Chairman
House State Affairs Committee
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Outlined differences in Senate
& House versions of HB 254
John McKay
Anchorage, AK
POSITION STATEMENT: Stated concerns with HB 254
Ann Thornsen
1733 University Ave.
Fairbanks, AK 99709
POSITION STATEMENT: Supports further hearings on
HB 254
Representative Eldon Mulder
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime Sponsor of HB 136
Juanita Hensley, Chief, Driver Services
Division of Motor Vehicles
Department of Public Safety
P.O. Box 20020
Juneau, AK 99802-0020
POSITION STATEMENT: Offered information on HB 136
Wes Coyner, Lobbyist
Alaska Journal of Commerce
3111 Douglas Highway
Juneau, AK 99801
POSITION STATEMENT: Testified in support of HB 236
ACTION NARRATIVE
TAPE 93-49, SIDE A
Number 001
Chairman Robin Taylor called the Judiciary Committee meeting
to order at 2:35 p.m.
SENATOR TAYLOR brought CSHB 254(JUD) am(ct rule fld) (OPEN
MEETING ACT) before the committee as the first order of
business.
SENATOR JACKO moved that SCS CSHB 254(JUD), version K, dated
4/21/93, be adopted as a working document. Hearing no
objection, the motion carried.
SENATOR LITTLE referred to Section 7 and the definition of
what constitutes a "meeting." She said believes that for
larger boards the language is too loose. She proposed as a
conceptual amendment that for larger bodies it would be more
appropriate to have the majority of a quorum of the
membership. She agrees that for nine and below it could be
left as a quorum.
Number 129
SENATOR TAYLOR said he didn't want to restrict a group of 16
people to a situation where they would have to post and
provide open meetings notification, etc., when five of them
wanted to get together. He said under Senator Little's
scenario, four of them could legally get together, but five
of them could not. He also pointed out that for smaller
boards, such as a nine-member board, a quorum would be five
and a majority of the quorum would be three. Any time three
people got together under the proposed amendment, they would
violate the Open Meetings Act.
Number 175
KENT SWISHER, Alaska Municipal League, said that one of the
ideas proposed earlier in another draft of another piece of
legislation was the idea that a majority of a quorum is a
standard. He agreed with Senator Taylor that only two people
could meet together without it being an official meeting, so
they were trying to create a situation in which in the smaller
governing bodies, one less than a quorum could meet.
Number 245
SENATOR LITTLE proposed amending her conceptual amendment on
the definition of a "meeting" on page 5, line 6: "A "meeting"
would be considered for boards of nine or less a quorum of the
members; for boards of more than nine, a majority of the
quorum wouldn't be a meeting so long as no more than five
members met." SENATOR TAYLOR objected for discussion
purposes. The roll was taken with the following result:
Senators Donley and Little voted "Yea"; Senators Taylor and
Jacko voted "Nay". The Chair stated the amendment failed.
Number 295
SENATOR TAYLOR requested that Representative Al Vezey,
Chairman of the House State Affairs Committee, present a brief
overview on the differences between the House and Senate
versions of the bill.
REPRESENTATIVE VEZEY, speaking to Section 1 in the Senate
draft bill, said it appears that it pretty much follows
existing statute, except that it changes the existing law that
provides that materials that are to be considered at the
meeting "may" be made available. The Senate version provides
that they "shall" be made available. In the House version the
intent was that governing bodies were to be encouraged to have
materials available at teleconference sites, but it wasn't to
be grounds to have actions legally voided. In the voice vote
language, the House version provides that the vote at a
meeting held by teleconference shall be taken by roll call and
adds the language "unless the question is approved by
unanimous consent."
Section 2 in the Senate version is totally new and was not
addressed in the House version.
Section 3 in the Senate version is comparable to Section 2 in
the House version of the bill. However, in the House version,
AS 44.62.310(c) was amended by only adding matters that are
covered by the attorney-client privilege to the list of
excepted items from the Open Meetings Act. The Senate version
has added matters involving consideration of governmental
records that are not subject to public disclosure.
Section 4 in the Senate version is comparable to Section 3 in
the House version of the bill. The Senate version has a
slight change from existing statute, whereas the House version
used existing statutory wording, except for changing the
language in paragraph (5) and relates to a public body. The
Senate version changes the language in paragraph (5) and
relates only to members of a hospital committee and adds new
paragraphs (6), (7) and (8). Representative Vezey said the
House version exempts governing bodies from having to conduct
personnel matters at a public meeting.
Section 5 in the Senate version is comparable to Section 4 in
the House version of the bill. The House version tries to
address the issue that there are communities in Alaska other
than Anchorage, Fairbanks and Juneau, and many of them do not
have the advantage of daily publications and newspapers, etc.,
and that it can quite expensive trying to meet the current
statutory requirements for notice. The Senate version is
similar.
Section 6 in the Senate version is comparable to Section 5 in
the House version of the bill. However, the Senate version
clarifies that action taken contrary to the Open Meetings Act
is voidable and it lists certain criteria that would
precipitate certain actions. The only change made in the
House was instead of actions taken by a body being voided if
the Open Meetings Act is violated, they are voidable by a
court if they so determine.
Section 6 in the House version provides a definition of a
"meeting."
Section 7 in the Senate version adds the definitions of
"governing body" and "public entity", and provides virtually
the same definition of "meeting" as contained in the House
version.
Number 560
SENATOR TAYLOR thanked Representative Vezey for his
presentation and then stated the committee would consider
amendments to the draft SCS CSHB 254(JUD) which was adopted
earlier in the meeting.
Number 565
SENATOR TAYLOR said in order to make the Senate bill a little
closer to the House bill he was offering the following
amendment:
Page 2, line 5: Delete the word "shall" and insert the word
"may"
Page 2, lines 5 - 7: Delete the sentence "Except when voice
votes are authorized, the vote shall be conducted in such a
manner that the public may know the vote of each person
entitled to vote."
Page 2, line 8: After the words "roll call" insert "unless
the question is approved by unanimous consent"
TAPE 93-49, SIDE B
Number 020
SENATOR DONLEY objected to substituting the word "may for the
word "shall", stating it is very difficult for the public to
know what is going on in a meeting if they are not provided
with the materials on the subjects being discussed. He also
stated he had no objection to the remainder of the amendment.
There being no objection to the second and third parts of the
amendment, the Chair stated they were adopted by unanimous
consent. The roll was taken on the first part of the
amendment with the following result: Senators Jacko, Halford
and Taylor voted "Yea" and Senators Donley and Little voted
"Nay." The Chair stated the word "may" was adopted in place
of the word "shall."
Number 041
SENATOR TAYLOR offered the following amendment to page 3, line
12: Delete the word "hospital" and insert the words
"governing body." Speaking to his amendment he explained this
would allow not only a hospital, but also the University Board
of Regents, to be able to consider in executive session the
professional qualifications, privileges or discipline of its
professional staff. SENATOR LITTLE objected to the amendment.
The roll was taken with the following result: Senators Jacko,
Halford and Taylor voted "Yea" and Senators Donley and Little
voted "Nay." The Chair stated the amendment was adopted.
Number 090
SENATOR DONLEY offered the following amendment to page 2, line
5: Maintain the word "shall" and after the word "locations"
insert "unless it is highly impractical to do so." SENATOR
HALFORD objected. The roll was taken with the following
result: Senators Donley and Little voted "Yea" and Senators
Jacko, Halford and Taylor voted "Nay." The Chair stated the
amendment failed.
Number 112
SENATOR DONLEY offered the following amendment to page 2, line
5: Maintain the word "shall" and after the word "locations"
insert "unless it is unreasonable to do so." Objection was
stated. The roll was taken with the following result:
Senators Little and Donley voted "Yea" and Senators Jacko,
Halford and Taylor voted "Nay." The Chair stated the
amendment failed.
Number 125
SENATOR DONLEY offered the following amendment:
Page 4: Delete all material in Section 6, subsection (f) and
insert in its place:
"(f) Action taken contrary to this section is void
unless the supreme court unanimously finds, beyond a
reasonable doubt, that voiding the action would result in
irreversible harm to the public interest."
Senator Donley stated he wants to have a higher standard for
the courts before they can say something is null and void, and
the amendment would replace Section 6 with a standard that
would modify the existing law. Objection was stated. The
roll was taken with the following result: Senators Little and
Donley voted "Yea" and Senators Jacko and Taylor voted "Nay."
The Chair stated the amendment failed.
Number 190
SENATOR DONLEY offered the following amendment:
Page 3, line 9: After "fees" insert:
" . An individual who is a member of a public body and
who participated in a meeting held by the body in violation
of this section is subject to a civil penalty of up to $500.
If an action to enforce this section is brought against an
individual, and if the individual requests, the court shall
appoint an attorney to represent the individual in the action
at state expense"
Senator Donley explained that one of the big flaws in the law
now is that there is no individual responsibility for public
officials, no recourse against them for violating the law, and
his amendment would adopt a penalty for an individual who
violates the law. SENATOR TAYLOR objected to the amendment.
The roll was taken with the following result: Senators Little
and Donley voted "Yea" and Senators Jacko and Taylor voted
"Nay." The Chair stated the amendment failed.
Number 228
SENATOR LITTLE offered the following amendment:
Page 5, lines 6, 7 & 8: Delete paragraph (2) and insert new
paragraph to read:
(2) "meeting means a gathering of more than two persons
of a governing body held for the purpose of considering a
matter upon which the governing body is empowered to act;"
Objection was stated. The roll was taken with the following
result: Senators Donley and Little voted "Yea" and Senators
Jacko and Taylor voted "Nay." The Chair stated the amendment
failed.
Number 260
SENATOR LITTLE moved the following amendment:
Page 5, line 6: Before the word "gathering" delete the word
"prearranged"
Objection was stated. The roll was taken with the following
result: Senators Donley and Little voted "Yea" and Senators
Jacko and Taylor voted "Nay." The Chair stated the amendment
failed.
Number 280
There being no further amendments, SENATOR TAYLOR stated the
committee would take testimony over the teleconference
network.
JOHN MCKAY, testifying from Anchorage, commented that it is
frustrating to an individual when a meeting is being
teleconferenced and that individual doesn't have any of the
material that is being discussed in the meeting.
Mr. McKay said he thinks the significance should not be
whether a meeting is prearranged, but should be what the
subject of the discussion is. He referred to paragraph (2)
on page 5, which defines the word "meeting" and suggested
taking out the language "for the purpose of considering a
matter" and insert in its place "in which the members consider
a matter." He said the change would properly put the focus
on what's being considered. It also gets rid of the potential
for litigation on what was the purpose of the meeting.
Mr. McKay said the quorum question is a significant concern.
The members of the press that he has talked to believe that
two people should not constitute a meeting, and they do not
have a problem with the Legislature clarifying that. He
believes that it is affirmatively good public policy to allow
two public body members to talk to each other about things.
He added that if four or five people are going to arrange to
get together, all that is required is reasonable notice and
it doesn't shut the public out of the process.
Mr. McKay referred to Senator Taylor's amendment to page 2,
which deletes the requirement that the public know how people
vote, which he said eliminates any requirement that the public
can know how their elected representatives vote on anything.
Mr. McKay said he does not understand why there is a need to
have any discussion about personnel matters or anything that
might relate to personnel matters in secret. He said the law
right now properly balances the interest here.
Concluding his testimony, Mr. McKay urged that the committee
hold another hearing on the legislation.
Number 455
ANN THORNSEN, a reporter with a public radio station in
Fairbanks and testifying from Fairbanks, requested that the
legislation be kept in committee until the public has a
greater opportunity to comment on such a major piece of public
legislation.
Ms. Thornsen suggested that instead of defining what a meeting
is, perhaps the committee should start defining what
deliberations are so that public officials will know what kind
of conversations they can have in small groups. She also
suggested defining "reasonable notice" which she said would
help the media a great deal.
Ms. Thornsen expressed concern with the language in Section
3 which relates to subjects that may be considered in
executive session.
In closing, Ms. Thornsen urged that the bill be held in
committee for more public input.
Number 510
SENATOR TAYLOR stated it was not his intention to hold the
legislation in committee because it has had two rather
extensive hearings already, it has had hearings in the House
of Representatives and it was thoroughly debated on the floor
of the House. He then asked for the pleasure of the
committee.
SENATOR HALFORD moved that SCS CSHB 254(JUD), as amended, be
passed out of committee with individual recommendations.
SENATOR DONLEY objected, stating that he thinks the
legislation should be worked on in the interim so that there
will be ample opportunity for more public input. SENATOR
LITTLE also objected, stating she thinks the legislation is
seriously eroding the public's capacity to gain information.
The roll was taken with the following result: Senators Jacko,
Halford and Taylor voted "Yea" and Senators Little and Donley
voted "Nay." The Chair stated the motion carried.
Number 560
SENATOR TAYLOR introduced CSHB 136(FIN) (DRUNK DRIVING AND
BREATH TEST OFFENSES) as the next order of business.
REPRESENTATIVE ELDON MULDER, prime sponsor of HB 136, said HB
136, along with HB 137, are recommendations made by the
Sentencing Commission in relation to alternative sentencing
solutions to potential problems and real problems that are
being experienced within the court system.
Representative Mulder explained that HB 136 focuses on
alternative sentencing for those people convicted of DWI's.
It proposes that instead of jail time, a person convicted of
DWI spend that time in a halfway house or a CRC. Currently,
there is approximately a nine-month backlog for an individual
convicted of DWI to actually serve a sentence within the jail
system. It also requires that a person convicted of DWI would
also pay for the time spent in a halfway house as well as
doing community service during the days. Further, it
requires CRC or halfway house sentencing for first and second
time individuals convicted of DWI's.
Representative Mulder said the first sections of the bill
focus on changing the issuance of a limited license.
Currently, an individual is allowed to apply for a limited
license up to the sixth time he or she is convicted of a DWI.
HB 136 rolls that back to only one time.
Representative Mulder directed attention to a letter from
Barbara Mills, Chairman of the Anchorage Chapter of Mothers
Against Drunk Driving, in support of HB 136.
Number 642
JUANITA HENSLEY, Division of Motor Vehicles, Department of
Public Safety, outlined the current law on the revocation of
a driver's license, on the issuance of a limited license, as
well as the changes that will be made in HB 136.
TAPE 93-50, SIDE A
Number 020
There being no further testimony on HB 136, SENATOR TAYLOR
asked for the pleasure of the committee.
SENATOR DONLEY moved that CSHB 136(FIN) be passed out of
committee with individual recommendations. Hearing no
objection, it was so ordered.
Number 025
SENATOR TAYLOR brought CSHB 236(RLS) am (NOTICE OF SALES OF
CERTAIN REAL PROPERTY) before the committee as the next order
of business.
Number 045
WES COYNER, Lobbyist for the Alaska Journal of Commerce,
explained the legislation addresses Title 9, which addresses
only notices of foreclosure. The current statute requires
that notices of foreclosure must be published in a newspaper
of general circulation, however, there is no definition of
"newspaper of general circulation." Title companies are
reluctant to file notices of foreclosure in other than the
metropolitan dailies. HB 236 opens it up to some of the
smaller newspapers in the state as long as they publish at
least 50 weeks each year. It will only affect foreclosure
notices and does not affect any other type of public notice.
Number 065
SENATOR LITTLE moved that CSHB 236(RLS) am be passed out of
committee with individual recommendations. SENATOR TAYLOR
objected for discussion purposes. Senator Little then
withdrew her motion and Senator Taylor stated it was his
intent to bring the legislation back before the committee at
the next meeting when there would be more time for discussion.
Number 080
SENATOR TAYLOR stated that the hearing on CSHB 113(FIN)
(CHARITABLE & TELEPHONIC SOLICITING/SALES) would be postponed
until the following day.
There being no further business to come before the committee,
the meeting was adjourned at 4:30 p.m.
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