Legislature(2003 - 2004)
01/30/2004 08:02 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
January 30, 2004
8:02 a.m.
TAPE(S) 04-1
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 244
"An Act relating to fines for offenses committed within school
zones."
HEARD AND HELD
SENATE BILL NO. 203
"An Act relating to certain administrative hearings; and
establishing the office of administrative hearings and relating
to that office."
HEARD AND HELD
PREVIOUS ACTION
SB 244 - No previous action to record.
BILL: SB 203
SHORT TITLE: OFFICE OF ADMINISTRATIVE HEARINGS
SENATOR(s):
04/29/03 (S) READ THE FIRST TIME - REFERRALS
04/29/03 (S) STA, JUD, FIN
05/06/03 (S) STA AT 3:30 PM BELTZ 211
05/06/03 (S) Moved CSSB 203(STA) Out of Committee
05/06/03 (S) MINUTE(STA)
05/07/03 (S) STA RPT CS 1DP 3NR SAME TITLE
05/07/03 (S) DP: STEVENS G; NR:COWDERY, GUESS, DYSON
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (S) Heard & Held
05/09/03 (S) MINUTE(JUD)
WITNESS REGISTER
Senator Gary Wilken
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 244
Mr. Bob Myers
2084 Lakeview Terrace
Fairbanks, AK
POSITION STATEMENT: Supports SB 244
Mr. Henry Springer
No address provided
POSITION STATEMENT: Supports SB 244
Mr. Al Storey
Division of Alaska State Troopers
Department of Public Safety
3700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Supports SB 244
Mr. Dave Stancliff
Staff to Senator Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of SB 203
Mr. Dan Houghton
Chief Financial Officer
Alaska Regional Hospital
POSITION STATEMENT: Supports SB 203
Mr. Andy Hemenway
Hearing Officer
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Answered questions about SB 203
ACTION NARRATIVE
TAPE 04-1, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:02 a.m. Senators Therriault,
Ellis, French and Chair Seekins were present. Chair Seekins
announced that Senator Ogan would be arriving shortly and asked
Senator Wilken to present SB 244.
SB 244-INCREASE FINE FOR SCHOOL ZONE VIOLATIONS
SENATOR GARY WILKEN, sponsor of SB 244, informed members that in
1998, the Legislature enacted a law that doubled fines for
traffic violations in construction zones, which was supported by
the Alaska General Contractors (AGC) and others. During the
interim, someone suggested to him that a law be passed to double
traffic violation fines in school zones. After looking into the
matter, he found other states have found that their construction
zone laws changed people's attitudes so that they slow down in
construction zones. SB 244 would allow a judge to impose a $600
rather than $300 fine for speeding in a school zone. The six-
point assessment on one's license for that infraction would
remain the same.
SENATOR WILKEN pointed out that members' packets contain two
zero fiscal notes: one from the Alaska State Troopers (AST), the
other from the Alaska Court System. In addition, Bob Myers and
Ann Shortt, Superintendent of the Fairbanks North star Borough
School District, submitted letters of support.
SENATOR ELLIS noted that former Senator Robin Taylor
vociferously criticized increasing the penalties in the drug
free school zone statute and asked if there is any interplay
between that statute and this legislation.
SENATOR WILKEN said not that he is aware of.
SENATOR ELLIS asked him to look into how the two might fit
together in relation to signage and penalties.
SENATOR WILKEN agreed to do so.
SENATOR ELLIS asked Senator Wilken if he anticipates any
additional signage requirements for local school districts.
SENATOR WILKEN explained that on roads maintained by the
Department of Transportation and Public Facilities (DOTPF),
DOTPF will be responsible for the signs; school districts or the
local governments will be responsible for the signs on other
roads.
SENATOR ELLIS questioned whether any of the fiscal notes reflect
the cost to local school districts.
SENATOR WILKEN answered that cost would be part of the local
school districts' normal operating budgets and DOTPF has
indicated that the signage will have no impact on its budget.
SENATOR ELLIS asked if school districts have indicated the cost
to them.
SENATOR WILKEN said he is relatively confident the cost will be
minimal to attach a small double-fine sign to the school zone
sign.
SENATOR ELLIS asked Senator Wilken if he envisions that a third
sign would be attached under the school zone sign and the drug
free school zone signs.
SENATOR WILKEN said he assumes there would be some signage
somewhere that warns drivers of double fines for speeding in a
school zone, much like the signs used for construction zones.
CHAIR SEEKINS announced that he expects members to converse
freely with the witnesses without having to address the chair
for each question. He prefers to allow the matter to be fully
discussed while maintaining the same amount of decorum as
committee members showed last year. He then noted that with no
further questions from committee members, the committee would
hear from Mr. Myers.
MR. BOB MYERS, testifying on his own behalf, stated support for
SB 244 as a father, grandfather, foster parent, and elementary
school employee. He told members he has been a crossing guard on
Danby Street in the mornings for four years. Two intersections
in that area feed students from military housing to an
elementary and middle school. Speeding is a daily occurrence.
The peak morning rush hour occurs at the same time children are
heading to school. Twice since the winter break, cars have run
his stop sign while children were in the crosswalk. He has made
many attempts during his four years to increase community
awareness of the danger to children but believes more needs to
be done. He asked members if the Legislature is willing to
protect construction workers, why not children? In October he
contacted Senator Wilken and asked that he introduce
legislation. Just the day before, a student was killed in Juneau
while riding a bike to school. He pointed out that the existing
signage in Fairbanks is inadequate and not visible in the dark.
He urged members to pass this legislation to better protect
children.
8:15 a.m.
SENATOR HOLLIS FRENCH asked Senator Wilken if SB 244 would apply
24 hours per day or only during the actual hours that children
travel to and from school. He noted in Anchorage, flashing
lights at the school zone are turned on 45 minutes before school
starts and drivers must slow down to 20 mph. Once school begins,
the lights are turned off and normal highway speed applies. He
questioned whether a person could get a double fine at 3:00 a.m.
or only during times when children are present.
SENATOR WILKEN responded:
...subject to a statute there's a change in the speed
as you've just spoken to and it lowers or raises the
speed limit depending on time and that's already
addressed in current statute so if you violated this
speed at that time - the time of day that that
particular speed was in effect, then that would be the
double fine, so your example - 3 a.m. - no.
SENATOR FRENCH asked if this law would apply only during the
lowered speed limit times.
SENATOR WILKEN said if a person breaks the speed limit when the
speed is lowered because children are arriving at or leaving
school, that person would be subject to SB 244. This bill would
not apply at other times; the normal speed limit law would
apply.
SENATOR FRENCH asked if the driver would violate normal speed
violations during evening hours and double fine speed violations
during heightened school hours.
SENATOR WILKEN affirmed that is correct.
CHAIR SEEKINS pointed out the language in the bill says "in a
school zone" so that a literal reading of that language would
mean the fine would be double if a person sped in a school zone
any time of day. He said if Senator Wilken's intent is to apply
the double fine in a school zone during the time the reduced
speed is in effect, the language should be clarified.
SENATOR ELLIS noted that was his question - he understands the
sponsor's intent but read the bill to say differently.
SENATOR WILKEN said current law allows for a change to the speed
limit in a school zone but he would find the citation to clarify
it or suggest language to amend the bill.
CHAIR SEEKINS asked who would get the revenue from the fines.
SENATOR WILKEN thought it would go to the general fund like any
criminal fine.
CHAIR SEEKINS recalled that many years ago, a line-up of Seattle
motorcycle cops would stop drivers in school zones one minute
after the restricted speed was in effect. Fines from those
violations were a major source of revenue for the city.
SENATOR WILKEN said he recently spoke with a Washington State
official to learn about Washington's program; the state splits
the revenue with the municipalities. He was told the fines bring
in millions of dollars. He then informed members he would work
on the definition of "school zones."
8:21 a.m.
SENATOR THERRIAULT asked if the state has a surcharge on
different traffic fines that goes to the police officers'
training fund.
SENATOR WILKEN said he is not aware of that and does not believe
this bill would have any effect on it.
CHAIR SEEKINS suggested that enforcement would be immediately
heightened if the revenue goes to the municipalities.
SENATOR THERRIAULT said [if that were the case], those
municipalities that want to provide services to their
constituents could pay for the program.
SENATOR WILKEN informed members that in FY '03, there were 481
school zone violations so the bill could be a revenue generator.
CHAIR SEEKINS asked Mr. Springer to testify.
MR. HENRY SPRINGER, testifying on his own behalf from Anchorage,
told members that he was the executive director of the
Associated General Contractors (AGC) when the construction zone
legislation was enacted. He worked closely with former Senator
Donley on that bill at that time. That bill doubled traffic
violation fines in construction zones and was modeled after
similar legislation enacted in other states. Statistics have
shown that legislation has been very successful for two reasons.
First, it does not take a lot of effort to implement; the new
signage can be coupled with other signs that identify school
zones. Second, it is inexpensive from the standpoint of law
enforcement. The goal is to increase safety for pedestrians. He
said he is confident that what worked in construction zones will
work in school zones.
[Senator Ogan arrived.]
LIEUTENANT AL STOREY, Alaska State Troopers, Department of
Public Safety (DPS), told members that 481 citations were issued
in school zones in FY '03. The Anchorage Police Department
issued 410 of those. The Anchorage Police Department has
enhanced its enforcement effort for several years; that effort
has had a real impact on the driving habits of people in school
zones. He believes that a statewide effort to slow drivers in
school zones would modify driving behavior and make those areas
safer for children.
LIEUTENANT STOREY said that while comparing SB 244 with the
programs in Oregon and Washington, he discovered a few
interesting points. Washington State has an aggregated penalty
for school zone violations. The base fine amount for the slowest
speeding violation is $100. The penalty in Washington for
passing a school bus when its flashing lights are activated is
$327. The State of Oregon's violation and infraction system
differs from Alaska's. Oregon has class A through D violations.
The lowest school zone violation is a class B violation, which
costs $123 for driving 1 to 10 miles over the speed limit in a
school zone. A class A violation - driving 30 miles per hour or
more in a school zone - costs $672. The cost for a commercial
vehicle is $1,248. Oregon has taken a strong stand on school
zone violations and has experienced great success in making
those areas safer for children. He told members DPS supports
this legislation. He also said, speaking of the issue of when
the zone is activated for enforcement purposes, the area is only
considered a school zone when the yellow lights are flashing or,
in areas with no lights, during the hours posted on the signage.
SENATOR OGAN expressed concern about school zones without
flashing lights. He said a school zone exists between 7:25 a.m.
and 8:15 a.m. around a new charter school in his district.
Drivers must stop before they get to the school zone and look at
their watches, which he believes is hazardous. In addition, not
all drivers have watches. He confessed that he has driven
through those school zones without slowing down because he has
been driving in that area for years before it was a school zone
and forgot about the change. He said he would be more
comfortable if the double fine penalty applied only in school
zones with flashing lights and planned to talk to the sponsor
about offering an amendment to that effect. He asked Lieutenant
Storey if he is aware of a person using the defense that he or
she was not wearing a watch.
LIEUTENANT STOREY said not that he is aware of.
SENATOR THERRIAULT asked how a construction zone is delineated
and whether, when a school is constructed, the property owner
must establish the school zone with signage.
LIEUTENANT STOREY said that construction zones, by statute, are
clearly identified by signs. Typically, signs are placed that
warn drivers they are approaching and leaving a construction
zone and then another sign is posted that warns of double
penalties for violations within that zone. He said it is his
impression that the intent of the bill is to post an additional
sign warning of double penalties on the established school zone
signage.
SENATOR THERRIAULT asked if the double fine could be imposed
around new or charter schools that have no signage.
LIEUTENANT STOREY said for enforcement purposes, the school zone
would have to be marked with either flashing lights or an
additional warning sign.
SENATOR THERRIAULT replied, "So no signs, no double fine."
LIEUTENANT STOREY said that is correct.
CHAIR SEEKINS asked if anything in statute or regulations
requires a driver to be aware of the time.
LIEUTENANT STOREY said not that he is aware of.
CHAIR SEEKINS noted a driver could fall prey to a violation
inadvertently.
LIEUTENANT STOREY said that is a possibility but many variables
would alert a driver that children are traveling to school.
CHAIR SEEKINS asked if the double fine sign requirement for
construction zones is in statute or regulation.
LIEUTENANT STOREY thought it was required by regulation.
SENATOR WILKEN thought Chair Seekins was asking whether double
fines could not be imposed if no signs are posted.
LIEUTENANT STOREY said he believes the statute says the area
must be an identified highway construction zone. He affirmed
that the AST does not write citations for double fines unless
the signs are posted.
SENATOR WILKEN added that 13 AAC 02.325 says to be a school
zone, the area must be posted with an official school, school
crossing, or speed control sign.
SENATOR ELLIS stated, "But it need not be posted as double fines
in a school zone because before we talked about - you anticipate
there being additional signage that says double fines so that
would have to be in place to trigger the doubling of the fine."
SENATOR WILKEN asked Senator Ellis if he was asking if no double
fines could be imposed if no double fine signs were posted.
SENATOR ELLIS asked if that is what SB 244 says.
SENATOR WILKEN said he does not believe so.
CHAIR SEEKINS agreed and noted that is why he asked if that
requirement is in regulation or statute. He noted it appears to
be in regulation.
SENATOR WILKEN replied:
That I don't know. I guess I just anticipated that it
would be much like the construction zones - that if
you really wanted the law to have some teeth, you
would go to the minimal effort of just putting up a
sign to complete the process of what we're trying to
do here - get people to slow down.
SENATOR ELLIS asked if the fines would be doubled only in those
school districts that choose to bear the cost of additional
signage.
SENATOR WILKEN said he would get an answer to that question.
CHAIR SEEKINS said that is the situation with construction
zones. He asked Senator Wilken if his intent is to get drivers
to slow down to protect children.
SENATOR ELLIS said he appreciates Senator Wilken's intent but
feels some of the details need to be worked out.
SENATOR WILKEN offered to get back to the committee with
answers.
MR. MYERS said sometimes rules and regulations are imposed on
schools with no funding and asked if some of the revenue from
the fines could go to the school districts to cover the cost of
the signage.
SENATOR THERRIAULT said part of the answer is linked to some of
the information Senator Wilken will be providing because there
may be no requirement to post that the fines are doubled so the
existing school zone signs may suffice. He said once members get
an answer to the first question, they will know whether the
second question is a problem.
SENATOR WILKINS said he would also find out where the funds go.
CHAIR SEEKINS announced the committee would put SB 244 aside to
await answers to members' questions and take up SB 203.
8:44 a.m.
SB 203-OFFICE OF ADMINISTRATIVE HEARINGS
SENATOR GENE THERRIAULT, sponsor, told members that the Senate
Judiciary Committee held a few hearings on this subject last
year. SB 203 is a complex piece of legislation. He has continued
to discuss with the Murkowski Administration how to fashion and
implement the legislation. He said his goal is to refresh
members' memories on the legislation and to prepare members to
consider another committee substitute (CS) in the next week.
SENATOR THERRIAULT explained that the concept of a panel of
administrative law judges has been in the legislative process
for a number of years. Senator Ogan worked on this issue for a
number of years. The purpose of SB 203 is to separate the
administrative adjudication process from the agencies that
promulgate and enforce regulations. Currently, an agency writes
regulations and that agency's in-house staff acts as the
enforcer, judge and jury over the enforcement of the
regulations. Quite often constituents have contacted legislators
complaining that they are not getting a legitimate opportunity
to question the fairness of regulations from the agency that
wrote those regulations.
SENATOR THERRIAULT pointed out the concept of SB 203 is to form
a centralized panel of hearing officers within the Department of
Administration (DOA) to provide an arm's length between the
agency and the person acting as judge and jury. The federal
government and a number of states use this approach with good
results. He said it is not his intent to create a centralized
pool and lose expertise. However, the staff with adjudicatory
functions in some agencies have extra time. His thought is to
have two or three hearing officers specialize in certain issues
and be assigned to a department. They would also be cross-
trained so that if they have extra time they could help out with
the caseload in another agency. He believes that will enable the
state to better utilize the staff it has and increase confidence
among Alaskans that they are getting a fair shake. In addition,
it should lead to better regulations because agencies will know
that the regulations they write will be adjudicated by a truly
independent person who is not pressured to back the department.
SENATOR THERRIAULT informed members that their packets contain a
CS that contains technical changes.
CHAIR SEEKINS clarified that version U was before the committee.
SENATOR THERRIAULT told members that a blank committee
substitute was brought before the committee last year but,
rather than propose one more [at this time], he is attempting to
incorporate input from the departments into one document. He
noted that the testimony the committee will hear today will
provide members with an overview and will not address any
particular version.
SENATOR OGAN told members that several years ago, he and staff
worked to move a hearing officer out of what he recalled to be
the Department of Revenue (DOR) because of the industry's
perception [of an unfair system]. He said the change worked
well.
CHAIR SEEKINS said he totally supports the concept and that his
questions are for the purpose of clarification. He then asked
Mr. Stancliff to testify.
MR. DAVID STANCLIFF, staff to the Administrative Regulation
Review Committee (ARRC), gave the following synopsis of the
measure.
Just to bring committee members back up to speed a
little bit and give you an idea of where we're at
after work over the interim, the version you had
before you was the State Affairs version. We had
discussed some amendments to that version but, as
Senator Therriault mentioned, it would probably be a
better use of the committee's time to now put those
together in a package of larger, more policy-oriented
amendments that have been discussed with us by the
administration.
As has happened in other states, this issue is really
not a partisan... [END OF SIDE B]
TAPE 04-1, SIDE B
MR. STANCLIFF continued:
... of how to make government operate better, save
money, and also deliver better adjudication to people
who may want to challenge government regulations. The
devil's in the details - you've heard that before and,
in this case, we have a very fragmented adjudication
system spread out all over the state. We have hearing
officers of every size and level of expertise located
in all sorts of places. We have many boards and
commissions that do a lot of hearings and what the
administration has asked us to do is to be sensitive
to the diverse situation we have and to try to amend
this legislation to have as seamless a transition as
possible.
Underlying the basis for that request are two things.
First of all, I know it's Senator Therriault's desire
and I'm sure the committee's also, not to simply
disrupt the interest of the state in such a major
piece of reform. Maybe, more importantly, costs are
involved and so to keep costs minimal and this
transition as seamless as possible, we're now going
through approximately 25 suggestions that have been
given to us by this administration - we're still
discussing some of those.... We hope to have at your
next meeting, Mr. Chairman, those in the form of a CS
and we will go through each one for the committee
members to consider.
I want to state for the record that we have worked
with people both inside and outside the process. We've
worked with hearing officers, we've worked with other
rd
ALJs and, on February 3 ... there is an expert panel
assembled by the state Association of Administrative
Law Judges who are going to discuss this piece of
legislation. There's quite a bit of interest in it,
it's sort of a new model. And they're going to be
available on-line in the Terry Miller building from
noon to 2. It's not a legislatively convened meeting
but we're going to be able to listen to what they have
to say about, first of all, how their states
implemented and constructed their model, how it
compares to ours, and hopefully they'll warn us on
some of the things to avoid and some of the things to
try to do. So I want to make members and staff to
members aware of that meeting.
So we've had a lot of input from a lot of places. You
do have on-line this morning Mr. Dan Houghton who is a
chief financial officer for Alaska Regional Hospital.
His particular institution, I believe, has been kind
of in the centrifuge of the regulation process for
almost 10 years now and is still not out. He would
like to, if he could, speak to the committee and
unless there are questions you would want me to answer
at this time, I would defer to Mr. Houghton if he's
on-line.
CHAIR SEEKINS asked Mr. Houghton to proceed with his testimony.
MR. DAN HOUGHTON, Chief Financial Officer at Alaska Regional
Hospital, provided the following timeline of events that
correlate to the discussion on SB 203.
· During 1991 to 1993, the Alaska Regional Hospital felt
the Medicaid rates it was given were inadequate for
its costs.
· Alaska Regional Hospital filed a rate appeal in 1994.
· A series of events left the hearing officer position
vacant for approximately a two-year period so a
hearing officer did not hear the case until 1997. The
hearing lasted approximately three weeks.
· On May 26, 2000, the hearing officer who heard the
case issued her decision. The Alaska Regional Hospital
was seeking reimbursement of an additional $4 million
in costs.
· In June of 2000, the hearing officer's decision was
submitted to Commissioner Jay Livey.
· In April of 2001, Commissioner Livey issued a
decision. Most of his ruling reversed the hearing
officer's decision.
· The Alaska Regional Hospital filed an appeal in April
of 2001 in the Alaska Superior Court.
· The Superior Court ruled on the case on January 9,
2003. The Alaska Regional Hospital felt that ruling
was in its favor and the dollar impact at that time
was about $4.2 million.
· The Superior Court, as part of the administrative
ruling process, sent that ruling to the commissioner
for action on the ruling itself. In February or March
of 2003, Commissioner Gilbertson remanded the ruling
to the hearing officer for action.
· The current hearing officer set oral argument for
October of 2003 however, due to a change in maternity
leave plans, the hearing officer departed earlier than
planned. The Alaska Regional Hospital now hopes its
oral argument will be heard in March or April of 2004.
MR. HOUGHTON told members the Alaska Regional Hospital is
anxiously supporting this bill. The hospital [board]
believes had the new system been in place, the process the
hospital went through would have been much faster.
SENATOR OGAN asked for clarification of the Superior
Court's ruling and the remand to the hearing officer.
MR. HOUGHTON explained that his understanding is that when
the Superior Court ruled, it actually sent the case back to
the commissioner for action upon that ruling. The
commissioner has the ability to either make a decision upon
that ruling or remand it to the hearing officer for review
and a "ruling on the ruling." That was the process the
current commissioner chose.
SENATOR OGAN asked, "Is it the same - the fox is watching
the hen house that you had before?"
MR. HOUGHTON said his quick estimate is that four to five
different hearing officers dealt with this particular case
over the last 10 to 11 years.
SENATOR OGAN asked if he has calculated the time value of
money and how much that will be.
MR. HOUGHTON said he has calculated about $2 million to
$2.5 million in interest. He repeated his support of the
legislation, as the hospital board believes it will aid the
process that the Alaska Regional Hospital and other
facilities have experienced. He maintained that a
centralized hearing officer panel will provide efficiency
found in a group. The larger body will allow the
proceedings to continue regardless of personal issues that
may arise with individual hearing officers.
MR. STANCLIFF asked members to consider the following
matters. No matter how one sides in Alaska politics, it is
never in the best interest of government to do something it
ultimately fails in and is costly. Under today's system, it
may be impossible to get out of the regulatory centrifuge,
unless the agency wants to release that party. He told
members that the Alaska Regional Hospital case is one of
many that he has heard of in which a party petitions for
relief and the decision goes to the commissioner, is
remanded to the hearing officer, and back and forth, on and
on. More importantly, a 2001 National Law Judge Foundation
paper and an examination by a law professor at UCLA provide
the genesis of why this issue is before the committee
today. Those papers are premised on the fact that when the
courts give deference to agency decisions, many people
suppose that deference is given because of all of the work
the hearing officer may or may not have done - collecting
evidence and taking testimony. However, that simply is not
the case. The courts actually give deference to the last
decision and the highest power in that decision making
process, the commissioner. The courts do not even have to
look at what the hearing officer did. He also asked members
to keep in mind the rule of necessity, which has developed
over the years within the judicial system. That rule allows
a judge to hear a case even if the judge is biased when
there is no other way to deal with the case. His research
shows that more frequently, over time, the courts have
allowed those decisions to stand. As a result, the states
have said:
Look, if we're going to have this expertise
argument constantly before us that the agencies
put up, and we're going to have commissioners who
have perhaps ex parte contact making our
decisions, and we're going to have courts
upholding those decisions based on the rule of
necessity, the only avenue for our citizenry and
the people who represent them to have a fair and
impartial hearing, is through a more impartial
adjudicator. That, as much as anything, has
driven the reform in other states.
MR. STANCLIFF said he is not intimately familiar with the
Alaska Regional Hospital case so he does not know if that
case is tinged with that problem. He asked members to
consider that those problems are being factored into the
discussion to change to independent adjudicators and create
time limits on the process for seeking additional relief.
CHAIR SEEKINS said his impression is that it should be the
state's responsibility, or the responsibility of the
hearing officers, to reach a fair and just decision. Many
times the perception of the outside party, when that party
is aware of a personal relationship between the hearing
officer and the prosecutor, is that the party will not get
a fair hearing. He applauded Senator Therriault's effort to
address this issue. He asked if SB 203 contains a provision
that allows the panel to contract with an outside source if
it does not have anyone available with an appropriate level
of expertise.
MR. STANCLIFF said one of the amendments he is working on
would allow the chief hearing officer to provide expertise
at the hearing or allow the agency to conduct the hearing.
The beauty of this model is that the chief hearing officer
will be monitoring what is going on so the agencies will be
aware of that oversight. He believes the amendment will
address the expertise issue but not tilt it so far as to be
used as an excuse to do away with due processes.
CHAIR SEEKINS said his concern is to be able to expand the
pool beyond the panel on a case-by-case basis when
necessary.
SENATOR OGAN asked Mr. Stancliff to recount for committee
members the meeting between a hearing officer and a
constituent when Senator Ogan employed him.
9:08 a.m.
MR. STANCLIFF told members when a constituent first came to
then Representative Ogan's office, as staff he would
explain that if an issue is in some form of adjudication or
under legal proceedings, it is not always best or proper
for Senator Ogan to get involved. In this case, the
constituent asked Mr. Stancliff to attend a meeting with
agency staff to verify whether the horror stories he
described are true.
MR. STANCLIFF said he attended the meeting and the
constituent asked questions that he thought Mr. Stancliff
should hear the answers to. At one point, an agency
representative warned him to be careful or the agency would
be looking into other matters. He was speechless. That
demonstrated to him the agency's level of impunity. The
constituent's goal was to get out of the regulation process
and get to court. That did ultimately happen but it took
years. The agency called the constituent's bonding agent
and caused him to lose his bond. The constituent spent
millions to get through the administrative process to get
to court to get a decision.
SENATOR THERRIAULT told members that agencies reviewed this
legislation over the interim. Some of their comments and
concerns were unfounded. He and staff worked with agency
personnel to sift through which concerns were valid and
drafted amendments to address them. One example is that the
agencies noted that the appeal process is actually dictated
by federal law in some areas, particularly when an agency
uses federal funds. Those suggestions are being
incorporated into a new CS.
SENATOR FRENCH asked, regarding the Alaska Regional
Hospital's case, if the appeal process involved the hearing
officer first, then the commissioner, then the Superior
Court.
MR. STANCLIFF said in that case he believes the case went
back and forth between the hearing officer and the
commissioner and then went to the Superior Court.
SENATOR FRENCH asked if SB 203 changes that process or
whether the commissioner will still be involved. He then
expressed concern about the interplay between a complex
dispute and the time constraints.
MR. STANCLIFF replied at this point, the time limit is not
flexible enough. He has been working with the
administration to make them flexible enough to consider and
integrate the Administrative Procedures Act, complex
matters, and federal requirements. He noted that there has
been discussion about whether or not the courts should give
deference to decisions of commissioners versus decisions of
hearing officers versus decisions of hearing officers
within the central panel. He told committee members they
may want to consider whether the way the courts give
deference based on the record and expertise versus the
commissioner's ability to summarily overturn a decision
should be changed. He pointed out that some commissioners
have petitioned to continue to have that authority. SB 203
splits the difference down the middle: the commissioners
would still have the ability to overturn, but the decision
must be based on the record, factual and evidential, not
simply on opinion. He suggested the committee might want to
look at changing the deference if that language is removed.
SENATOR FRENCH asked what standard of review the Superior
Court uses when it gets a commissioner's decision.
MR. STANCLIFF deferred to Mr. Hemenway.
MR. ANDY HEMENWAY, Hearing Officer, Department of
Administration (DOA), said he believes the standard of
review for a decision that goes up to the Superior Court on
factual matters is the same as that for a case on appeal
from Superior Court to the Supreme Court: substantial
evidence. On questions of law, the Superior Court defers to
the agency on matters within the agency's expertise,
depending on the nature of the statute.
SENATOR FRENCH asked if the standard of review is set out
in statute.
MR. HEMENWAY said he does not believe it is. He said it
could be in the Administrative Procedures Act but he
believes the decisions on appeal are a matter of case law.
SENATOR FRENCH asked if SB 203 changes the standards.
MR. STANCLIFF replied:
From the standpoint of the commissioner's ability
to overturn a decision, I guess there's a change
in the overall look at things but it does not
change specifically what you just spoke to Mr.
Hemenway about.
SENATOR FRENCH questioned, "So there is nothing in the act
that tells a Superior Court judge how to analyze decisions
of hearing officers or commissioners? You would maintain
the same standards as set now?"
MR. HEMENWAY said that is correct.
9:17 a.m.
SENATOR THERRIAULT said as a result of conversations with
the Department of Law, he believes the CS will say the
commissioner still has the power to overrule, but only on a
certain basis, and the commissioner will have to produce a
written finding. The Department of Law supports that
approach because when the commissioner overturns a hearing
officer and no written finding exists, the Department of
Law has to support the commissioner's action in court with
no paper trail.
CHAIR SEEKINS announced that the committee would hold SB
203 and await the new CS.
SENATOR THERRIAULT informed members that Mr. Stancliff
would spend time with individual members as soon as the new
CS is prepared. He pointed out that the bill is complex and
dry but makes big changes and that he has been working with
the administration on the successful implementation of this
bill.
With no further testimony, CHAIR SEEKINS adjourned the
meeting at 9:19 a.m.
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