Legislature(1993 - 1994)

04/22/1993 02:35 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   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.                                        
                                                                               

Document Name Date/Time Subjects