Legislature(1993 - 1994)
04/22/1993 02:35 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.