Legislature(2013 - 2014)Anch LIO Rm 670
10/30/2013 01:00 PM Senate LEGISLATIVE COUNCIL
| Audio | Topic |
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| Start | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
OCTOBER 30, 2013
1:00 PM
MEMBERS PRESENT
Representative Mike Hawker, Chair
Representative Mike Chenault
Representative Max Gruenberg
Representative Lance Pruitt
Representative Bill Stoltze
Senator Charlie Huggins
Senator Kevin Meyer
Senator Gary Stevens
Senator Lyman Hoffman, Alternate Member
MEMBERS ON TELECONFERENCE
Senator Peter Micciche, Vice Chair
Senator John Coghill
Senator Dennis Egan
MEMBERS ABSENT
Representative Craig Johnson
Representative Peggy Wilson
Senator Mike Dunleavy
AGENDA
APPROVAL OF MINUTES
CONTRACT APPROVALS
OTHER COMMITTEE BUSINESS
SPEAKER REGISTER
Don Johnston, Outgoing Building Manager, Legislative Affairs
Agency
Jeff Goodell, Incoming Building Manager, Legislative Affairs
Agency
Pam Varni, Executive Director, Legislative Affairs Agency
Curtis Clothier, Manager, Information Services, Legislative
Affairs Agency
Jessica Geary, Finance Manager, Legislative Affairs Agency
Juli Lucky, Staff to Representative Mike Hawker and Committee
Aide to Legislative Council
Wayne Jensen, Jensen Yorba Lott, and Project Architect on the
Capitol Building Restoration
Linda Lord-Jenkins, State of Alaska Ombudsman
Doug Gardner, Legal Services Director, Legislative Affairs Agency
1:00:12 PM
I. CHAIR MIKE HAWKER called the Legislative Council meeting to order
at 1:00 p.m. in room 670 of the Anchorage Legislative Office
Building. Present were Representatives Hawker, Chenault, Pruitt,
and Stoltze; and Senators Huggins, Coghill (via teleconference),
Egan (via teleconference), Meyer, Stevens, and Hoffman (via
teleconference - alternate member). Representative Gruenberg and
Senator Micciche (via teleconference) joined the meeting shortly
after the call.
Chair Hawker noted for the record that Representative P. Wilson
was absent due to travel; and that Senator Mike Dunleavy, was
currently chairing another committee meeting. Chair Hawker also
explained that Senator Dunleavy was the newest member of
Legislative Council, replacing Senator McGuire who resigned to
pursue other endeavors. The Chair welcomed Senator Dunleavy to
Legislative Council.
Chair Hawker noted that Don Johnston, Building Manager, was
retiring at the end of December after tremendous service to the
State. The Chair welcomed Jeff Goodell, new Building Manager, and
asked Mr. Johnston to do an introduction.
DON JOHNSTON, Building Manager for the Legislative Affairs
Agency, said that Jeff Goodell was selected as the new Building
Manager and that he has an extensive background in construction
and construction management. Mr. Johnston said he felt the Agency
had made a good selection and that the Capitol Complex buildings
will be left in good hands.
CHAIR HAWKER, after a round of applause for Don Johnston, said
there would be a more appropriate recognition of Mr. Johnston's
service in January when the Legislature is in Juneau for session.
MR. JOHNSTON responded that it was not necessary although much
appreciated, and added that the State of Alaska has been good to
him and his family and he appreciates that. He appreciates the
present Council's help and support that they've given him to do
his job, as well as the support of past Councils. He said he
couldn't have done his job without them, and that it's been an
honor and a pleasure to serve as Building Manager for the
Legislature.
CHAIR HAWKER formally welcomed Jeff Goodell and said the building
manager is an important and often under-appreciated position that
truly gets things done behind the scenes. He said Mr. Goodell, in
his new job, would be spending time with Legislative Council,
which is the administrative committee for the Legislature.
JEFF GOODELL, incoming Building Manager, said he is honored to
follow in Don Johnston's footsteps and hopes to carry on in the
same manner. He said he is honored to have been offered the job
and to work for the State, the Legislature and the people of
Alaska. He said he has met a lot of great people and hopes to
take care of the buildings in the same way they have been cared
for over the years. Don is bringing him into the fold; he's got
some things to learn and is ready to rise to the occasion.
II. APPROVAL OF MINUTES
a. August 23, 2013
1:14:31 PM
SENATE PRESIDENT HUGGINS moved that the minutes from the
Legislative Council meeting on August 23, 2103, be approved as
presented.
CHAIR HAWKER, in response to a question by Senate President
Huggins, clarified that in the minutes was an inadvertent error
on page 18 where Representative Johnson said "…Second Amendment…"
when he meant "First." After confirming with Representative
Johnson on the intent, the correction was marked on version of
the minutes presented to the members.
The minutes of August 23, 2013, were approved without objections.
III. CONTRACT APPROVALS
a. Kenai LIO Lease Renewal
PAM VARNI, Executive Director of the Legislative Affairs Agency,
stated that before Council is the Kenai office space lease
renewal for FY 14 for a cost of $106,485. This item had been
previously deferred to allow time research the increase of
approximately $30,000, based on the improvements to the building
made by the Department of Transportation (DOT). After discussions
with DOT Commissioner Kemp, the FY 15 lease price will be
decreasing to $51,982.64. The lease price fluctuation is because
is no building fund, so DOT prorates costs of improvements among
the different occupants.
CHAIR HAWKER noted that DOT recaptures all of its costs in a
single year and that the Legislature gives them the budget
authority to do that. He said that this issue has been researched
for several months, and the increase reflects improvements to
common areas. Improvements chargeable to entirely to another
tenant are not included.
1:18:18 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council authorize
the chairman to approve a one-year renewal of the existing lease
agreement for the Kenai Legislative Information Office and
Legislators' District Office space for a cost of $106,485.00.
The motion passed with no objections.
b. Kodiak LIO Lease Renewal
MS. VARNI said this is a five-year renewal of the current Kodiak
lease for the period of November 1, 2013 - October 31, 2018, in
the amount of $69,848.64 per year, excluding the CPI-U adjustment
each July.
CHAIR HAWKER, after confirmation that legislators with Kodiak
offices were satisfied, asked for a motion.
1:20:01 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council authorize
the chairman to approve a one-year renewal of the existing lease
agreement for the Kodiak Legislative Information Office and
Legislators' District Office space for a cost of $69,848.64.
The motion passed with no objections.
c. Sitka LIO Lease Transfer
MS. VARNI said this item is a lease transfer for the Sitka LIO.
The building is changing ownership from Shee Atiká Management,
LLC, to SCOJO, LLC, which requires Legislative Council approval
for this change in ownership, as well as approval of a
Subordination, Non-Disturbance and Attornment Agreement that
Legal Services will prepare.
CHAIR HAWKER said that this is simply the legal work necessary to
recognize that our lease is being transferred from one entity to
another. The transfer has no financial consequence on the
Legislature at this time.
1:21:47 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council approve
the name change of the landlord for the Sitka Legislative
Information Office and Legislators' District Office space from
Shee Atiká Management, LLC, to SCOJO, LLC and authorize the
Legislative Affairs Agency to negotiate and execute a
Subordination, Non-Disturbance and Attornment agreement.
The motion passed with no objections.
Vice Chair Micciche joined the meeting via teleconference at this
time.
IV. OTHER COMMITTEE BUSINESS
a. Late Travel Reimbursement Requests
i. Rep. Saddler
ii. Rep. Kerttula
JESSICA GEARY, Finance Manager for Legislative Affairs, in
response to a request by Chair Hawker, stated that this is a
revised travel and per diem request for Rep. Saddler that was
turned in more than 60 days late, and two late travel and per
diem requests from Representative Kerttula. Ms. Geary said she
has reviewed all three of the claims and they are all accurate.
CHAIR HAWKER said it was fair to note that Representative
Saddler's claim was previously discussed in this committee. It
has since been adjusted and he asked Ms. Geary to briefly explain
the adjustment.
MS. GEARY said that the original claim included a lodging
reimbursement request and meal per diem that are not in the
revised claim. Per Council policy, Rep. Saddler was not eligible
for the meal per diem as it was during session. There was also a
rental car request on the claim, although further research did
not find a charge for a rental car. Representative Saddler
revised his original request to ask only for air fare
reimbursement in the amount of $525.30.
CHAIR HAWKER noted that present in the room to answer questions
if necessary were Representative Saddler and staff for
Representative Kerttula.
1:26:37 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council approve
the following late travel and per diem claims:
· Representative Dan Saddler for travel commencing on March
22, 2013
· Representative Beth Kerttula for travel commencing on March
7, 2013 and May 17, 2013
The late travel and per diem claims were approved with no
objections.
b. Capitol Restoration Update
CHAIR HAWKER introduced Wayne Jensen, the project architect, to
present a status report on the Capitol Seismic Retrofit and
Exterior Renovation, Phase I. Chair Hawker reminded members that
this project has been underway for some time; it was originally a
three-phase project, but the last two phases will likely be
incorporated into one. Phase I is now complete and Mr. Jensen
will present an update to the Council and discuss the final
accounting.
1:27:59 PM
WAYNE JENSEN, Jensen Yorba Lott, said he had a brief PowerPoint
presentation showing some photographs of the Phase I construction
as well as an update of the status of Phase II.
Mr. Jensen delivered the PowerPoint presentation on Phase I of
the Alaska State Capitol Seismic Retrofit and Exterior
Renovation.
NOTE: The PowerPoint of Phase I is available on BASIS.
1:48:45 PM
CHAIR HAWKER, following the Phase I presentation, brought up the
change order for Phase I work. He noted that this item was going
to be on the November agenda, but was ready in time for this
meeting. The contractor's final billing exceeds the approved
contract amount by $43,276.02. He asked Mr. Jensen to explain the
overage.
MR. JENSEN said there were three components to the contract. The
first one was the lump sum base bid, which, as a hard bid item,
did not change. The second component was a unit price for
repairing the joists in the crawlspace. The contract assumed 100
joists, and the bidder provided a unit price for each. Once the
contractor was able to access and test the joists, they
determined 132 joists required replacement. Although the amount
per joist was fixed in the contract, the quantity of joists
increased, resulting in an overage of $18,072.00. The final
component was the contingency allowance for the work under the
portico, the extent of which could not be known with certainty
until contractors could access the area. Once the portico was
open, the contractors were able to develop a series of steps to
repair the portico and determine that the work required would
likely exceed the original bid amount. Costs were monitored on a
weekly basis, with the contractor providing information to
building manager Don Johnston and to Mr. Jensen. In the past
couple weeks, the costs ran up against the contract amount. The
contract contingency for unknown conditions underneath the
portico ended up costing $25,204.02 more than budgeted.
Mr. Jensen, at the request of Chair Hawker, confirmed for the
record that this is the final billing for Phase I of the project.
VICE CHAIR MICCICHE noted for the record that although he is not
in the committee room presently, he went through a detailed
review in person yesterday with LAA staff.
SENATOR EGAN noted for the record that he also has been briefed
about this project from his location in a hotel room across from
Virginia Mason. He said he thinks Wayne Jensen, Paul Lukes and
the current contractor on Phase I should be commended. They went
into this project totally blind and now the cost overrun to
complete Phase I is $43,276.02. To him, it is incredible. In his
short time in the Senate he has seen many state projects with
horrendous cost overruns. He has been involved in city politics
for years and they've had cost overruns. This one is miniscule.
He said if Council can approve the $43,276, he'd even chip in the
$0.02.
CHAIR HAWKER said, as an ad-hoc observer, his office participated
in the weekly project management briefings in Juneau. He said
he's watched this develop and tends to share the sentiments of
Senator Egan that it's basically a well-managed project. The
overrun involved things the contractor simply couldn't have known
until they opened up the can.
MR. JENSEN said he was just reminded that even though they added
quite a bit of work underneath the portico, the project was still
done on time. Today is the contract completion date and the doors
will be open in the front of the Capitol tomorrow. He said that
was a credit to the contractors that worked diligently, bringing
on extra staff in order stay on schedule: getting the first phase
complete by the start of the session.
REPRESENTATIVE STOLTZE, noting there should be a process whereby
extra costs are submitted and approved, asked if that process had
been followed.
CHAIR HAWKER responded that the request for a change order is
being brought to Council for approval in the form of a motion
approving the change order. This is based upon the costs that
were necessarily incurred for the contractors to complete the
work. He said further that he has been apprised along the way of
the approaching change order, and asked Mr. Jensen to put on the
record how thorough the Chair has been in doing due diligence and
minimizing the change order. He said he was informed of the
process along the way.
MR. JENSEN said that there were 20 reports on a weekly basis to
monitor and approve these costs. It wasn't until the last few
weeks that they realized they were running up against the
contingency amount.
VICE CHAIR MICCICHE added that there had been a request for him
to bring a report back of the history and nature of change orders
for the last few projects, which he plans to do at the November
meeting. In that report, he'll be talking about the change order
for the Legislative Finance remodel, the Thomas Stewart Building,
and the Capitol Restoration Project. He said this illustrates the
sort of thing one may run into with a lot of experience in large
projects. He thinks you'll see the trend on a lot of the change
orders are just similar due to the fact that we're digging into
much older buildings without a substantial history of what you're
going to find. The as-builts and the known conditions before the
project begins are limited. Although he is someone who doesn't
like to spend money or like surprises, he thinks the report will
clarify some of the conditions that caused a lot of the changes
in the three projects he's looking over.
CHAIR HAWKER noted that the change order being brought forward
today of $43,276.02 allows Council to pay the project to
completion and the project has, in fact, been completed on its
scheduled date.
SENATE PRESIDENT HUGGINS said that before he makes the motion,
procedurally, he agrees with Representative Stoltze in that bad
news doesn't get better with time and if we have a process for
addressing changes it's much better for all of us and easier to
defend. How much money we spend may end up being the same but he
would encourage us to try to observe that protocol.
1:59:50 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council approve a
change order the amount of $43,276.02 for costs to complete
Alaska State Capitol Seismic Retrofit and Exterior Renovation,
Phase I, from existing legislative funds authorized by the
Council Chair.
The change order was approved with no objections.
CHAIR HAWKER said that with respect he believes protocol was
followed. If someone on Council wants to be more involved in any
project, it's a matter of talking to the Chair and they can
certainly be added to the project management meetings that occur
in Juneau every Monday morning.
MR. JENSEN, at request of the Chair, resumed his presentation by
taking up Phase II, the components of which are the CM/GC
construction contract, the seismic retrofit of the rest of the
building, the renovation and energy upgrade of the exterior
walls, and the heating system replacement.
Mr. Jensen said that there will be a construction manager/general
contractor type of approach to the next phase of construction
contracts. In essence, a contractor will be selected based on
qualifications and experience as well as some price information,
but it won't necessarily be the low bidder. Rather, the selection
committee will choose the candidate it feels is the most
qualified. The next step will be to work with that contractor for
the next couple of months to complete the documents, work on the
project phasing - which is a critical issue with work ongoing for
potentially the next three construction seasons. The selected
contractor will need to consider and relate how the
constructability works; and how much work can be done in each
construction season. It will be a contract very similar to what a
lot of other State agencies are using. It is used frequently and
successfully on very large projects.
Mr. Jensen, in response to a request by Chair Hawker, said they
are just completing a cost estimate based on the current status
of the drawings and are reconciling that amongst the design team.
They are working with an independent cost estimator, HMS from
Anchorage, on that work. HMS has been doing this for 40 years in
Alaska. That will give a negotiating point from which to start.
They will have an estimate of construction costs based on the
current scope of work.
NOTE: Please refer to the PowerPoint presentation on BASIS for
more details on Phase II.
2:21:03 PM
MR. JOHNSTON reminded committee members of the Legislative
Council website which details project progress weekly.
SENATOR EGAN, after further discussion, thanked everyone involved
in this project. Nobody knew what they were getting into and it
came out positive. He commended Don Johnston, Wayne Jensen and
Jensen Yorba Lott, Paul Lukes and the contractor.
MR. JOHNSTON added that the structural engineer who is part of
the design team and is working on this project is the structural
engineer that worked on the seismic retrofit of the Washington
State Capitol as well. He feels there is a really good team to
address this project.
2:23:44 PM
CHAIR HAWKER called an at-ease for a five minute break.
2:34:34 PM
CHAIR HAWKER called the meeting back to order. He said the next
item on the agenda is legislative access to Facebook. He noted
for the record those members present after the break: Senators
Hoffman, Meyer, and Stevens, Representative Chenault, Chair
Hawker, Senator Huggins, and Representatives Pruitt, Gruenberg,
and Stoltze were in the room. On teleconference, Senators
Micciche, Coghill and Egan confirmed their participation. Chair
Hawker further noted that Senator Hoffman, as an alternate, was
not required for a vote although he was welcomed to participate
in the conversation.
c. Facebook Access
Chair Hawker said that the issue before Council is how much
access will be allowed for Facebook on legislative computers.
This issue has been long discussed in this committee over many
years prior to his chairmanship. It is time to bring some
finality to this issue with up or down votes. He noted for the
record that at least one person was on teleconference who wished
to offer testimony, Linda Lord-Jenkins from the Ombudsman's
office. Also available for questions was Linda Day from
Legislative Audit (via teleconference), Carolyn Kuckertz from
Senate Majority Press Office and Curtis Clothier, Information
Services Manager (via teleconference).
LINDA LORD-JENKINS, State of Alaska Ombudsman, said her purpose
was to speak to the Council about the question of Facebook access
for the Ombudsman's Office. She said she will restate the
information provided in her letter of January 10, 2013. All of
the reasons that she cited in her letter are already on the
record and she would agree with those again and call Council's
attention to them. The State has changed somewhat in Facebook
usage. A quick inventory by her office of Facebook usage by State
of Alaska agencies showed there were more than 38 agencies with
Facebook pages. Many are agencies that are among those for which
her office receives the most complaints: Division of Motor
Vehicles, Alaska State Troopers, Child Support Enforcement, and
Child Protective Services. As it stands right now, she cannot
access a State of Alaska Facebook page that provides information
to Alaska citizens. Frequently, that information is relied upon
by the public in making decisions, so the Facebook page
information would be pertinent to any investigation that her
office has. The reality is that those of the "Millennial
Generation," ages 18-24 and up, are living their lives on social
media and they use that media as a source of information. It's an
informational tool about the news, about how to contact state
government. It can be a very helpful tool for outreach for
citizens to let them know the services offered by the Ombudsman.
It is a very useful investigative tool, as cited in her January
letter; cases pivot on what has been on Facebook. Again, her
office cannot access it using State equipment, so their
workaround has been that she brings a personal iPad to work and
occasionally has to check things related to investigations on
that iPad. Other Ombudsman offices that frequently use Facebook
include the Ontario Ombudsman and the Dayton, Ohio Ombudsman;
they use it for investigations and outreach and to highlight
concerns. It's a very easy and quick way to get information to
the public. She believes it would be an excellent investigative
tool for the Alaska Ombudsman to use. She further noted that she
would require her staff to log any Facebook use to maintain a
usage record, and she will prohibit personal use.
CHAIR HAWKER asked if anyone else wanted to testify on this
issue. No one stepped forward, which brought this issue back
before Council. He reiterated that this committee had a lot of
conversation about policing Facebook use. His personal sense and
opinion is that there are ethics policies in the State and
universal legislative policies regarding personal computer use,
all of which will apply to using Facebook. His intention as we
bring these motions forward would be a first motion which would
allow Facebook access from all legislative computers for
legislative business only. Should that motion fail, it is
appropriate to take a look at the major user groups within the
Legislature, as there may well be different opinions based on the
different user groups.
The second motion would be allowing access for the nonpartisan
legislative agencies and their staff for legislative business
only. That would include LAA, Ethics, Ombudsman, etc. These are
specifically identified in that motion. The third motion would
ask whether to allow Facebook for legislative press and
webmasters, who may have certain needs that are different from
the non-partisan agencies. The last motion would be to allow
access for Legislators and staff. The current policy, which has
officially expired but has continued because it has not been
addressed by Council, allows access for the press offices and
webmasters, as well as individual Legislators. Nothing in the
current policy prevents a Legislator from logging on to Facebook
from every computer in his office. It is not easily policed.
Before bringing any of the four motions forward, Chair Hawker
opened up the issue for conversation.
Chair Hawker, in response to a question from Representative
Pruitt, confirmed that if motions 2-4 passed, it would be the
same as passing motion 1.
SENATOR COGHILL asked if it would be wise to use the term "social
media" rather than Facebook.
CHAIR HAWKER responded that addressing Facebook is appropriate as
it has been the only social media outlet that has been addressed
by this committee and isolated from the universal policy for
computer access. The other social media outlets have no
restricted access at this time.
CURTIS CLOTHIER, Information Services Manager for Legislative
Affairs Agency, in response to a question by Senator Meyer and at
the request of Ms. Juli Lucky, staff to Representative Hawker,
said that while he doesn't have exact figures, working with NCSL
and his colleagues in other states, he doesn't know of any other
states that are actively blocking access to Facebook at this
point. He said most of them never did block it. Other states may
have some social media policies similar to the Alaska
Legislature's, but at this point, other state government agencies
and legislatures are pretty much going with it for a number of
reasons, including some mentioned by Ms. Lord-Jenkins. They need
to work with other state agencies, local governments, businesses
and news outlets, which are all now using Facebook.
REPRESENTATIVE STOLTZE said that he has ongoing concerns that
Facebook is social media. He views the Legislature as a business
environment and social media has a lot of connotations. He said
he appreciates it being confined to Facebook as he doesn't know
all the permutations of different types of social media. He said
there are probably some that his good friend, the Senator from
North Pole, would find pretty unsavory through a broader
application and unintentionally so. He said he appreciates that
it is confined to something that we know what it is and is pretty
broadly accepted. He has an ongoing concern about the
acknowledged use for political purposes. It is the nature of the
beast; you collect data, names and it was acknowledged that
information can go right to your campaign chairman or your
campaign. He said he would be a gentle opposition to bringing a
social activity and expanding that into the workplace and the
potential political use.
CHAIR HAWKER, in response to a comment by Representative
Gruenberg, restated that the only social media venue that is
currently being restricted by action of this committee is the
software program known as Facebook. All other forms of the
generic term 'social media' are currently being regulated in
accordance with the overall policies and procedures for the use
of computers and other technology by legislative staff and
legislative agency employees. The point of these motions would be
to definitively remove a proscription that Council has
established previously and that has actually expired, leaving the
State without a specific policy on this issue. The absolute point
is that it is for legislative business only. Legislative business
is intended to mean in compliance with all of the statutes,
ethics and procedures and policies established for the operations
of the Legislative Branch.
Chair Hawker, in response to a question by Senate President
Huggins about the term "nonpartisan" in one of the motions, noted
that staff, such as the press and the webmasters are people who
work in the partisan branch of the Legislature. They work for the
majority and the minority in the Legislature who have partisan,
dialectic interests. Likewise, individual Legislators are viewed
as partisan in that they are political. The use of the word
"nonpartisan" defines the agencies which are common agencies and
by statute are not allowed to engage in partisan activities.
SENATOR STEVENS said that, with the understanding that it is very
clear that use is for legislative business only, with regard to
email and cell phones there is a de minimus clause that says if
it doesn't cost the State any more, one can use a cell phone or
email for personal use. He asked if this is stricter than the
current policy regarding email and cell phones or is it simply
complying with the current policy.
CHAIR HAWKER noted that there is a universal policy that is "thou
shalt not use legislative assets for personal business." Any de
minimus standard is one of the Legislature's own creation, but
the policy is still you can't do it. There is an element of
forgiveness within the policies and procedures. Facebook would be
treated no differently than any other technology or software or
communications activity that is available to the Legislature.
That type of thing ultimately gets adjudicated as to what
constitutes an unavoidable and de minimus activity. The intent is
that should the motions pass, Facebook itself will be allowed for
business purposes. It is bringing Facebook into the fold of
activities that will be managed under the existing global
umbrella for managing technology within the Legislature.
Chair Hawker, in response to a follow-up question by Senator
Stevens, asked Joyce Anderson to speak to the de minimus use
issue.
JOYCE ANDERSON, Administrator for Select Committee on Legislative
Ethics, said there is a part of a statute that addresses de
minimus use of state resources. The term "de minimus" isn't used,
but basically that's what it means and it allows Legislators,
staff and those working for a legislative agency to use State
resources for de minimus use. Some examples she has used in her
ethics training is that we all call home every once in a while or
we might send an email to a friend during the day. Responding
directly to the question asked by Senator Stevens, based on
previous advice that's been given in discussion in the Ethics
Committee, without having a ruling from them, she would say that
yes, Facebook could be used in a de minimus way.
Ms. Anderson, in response to a follow-up question by Chair
Hawker, said that the only complaint that the Ethics Committee
has ever had regarding de minimus use was about staff forwarding
personal mail to the Capitol. The committee determined that two
or three pieces of mail per week would be considered de minimus.
In another ruling regarding de minimus use involving mailings
outside of one's legislative district, the committee decided not
to come up with a piece amount.
CHAIR HAWKER confirmed that the de minimus rules in existing
statute and policies would apply to Facebook as they do to all
other use of state computers. He noted that it is not an official
opinion of the Ethics Committee, but guidance based on Ms.
Anderson's experience.
REPRESENTATIVE PRUITT asked Doug Gardner, Legal Services
Director, if someone is monitoring his Representative Facebook
page and deleting stuff that he doesn't agree with or being a
little bit more involved with it, does that create a legal
concern because they are utilizing State resources to operate
something as a Representative and potentially monitoring
someone's First Amendment opportunities.
DOUG GARDNER, Director of Legal Services, after confirming the
Facebook page in the example is one used to communicate with
constituents, said that he wasn't sure one was required to agree
with everything and needed to allow it all to be posted, but he
didn't know the answer. It is a State-sponsored page, running off
a State computer. He said he thinks that if a Legislator didn't
like something that was posted and their response went beyond the
scope of their legislative duties, they may have some liability
if it was something derogatory. He said he just doesn't know the
answer about how the First Amendment might affect a Facebook page
being run off a State computer. These are emerging issues.
CHAIR HAWKER said we can play lawyer, and he's not one, but if
someone comes by and puts a sticky note on your office door, can
you take the sticky note off your door.
SPEAKER CHENAULT said this brings up his concerns about FOIA
requests with regard to one's email and the possibility that
someone might request to try to capture all of one's Facebook
postings. He said he's not afraid of the technology but rather of
how once it gets out there, it doesn't come back.
MR. GARDNER, in response to a clarification question from Chair
Hawker, said that the first question would be whether one has
legislative immunity through the records policy and it may be
that those are records that may be in control of your office,
albeit computer, and he does not know if an office would have to
produce those things if requested.
Mr. Gardner, responding to a question by Representative
Gruenberg, said legislative immunity applies throughout the year.
There is a statue that makes it clear the legislative immunity
applies during the interim as well as during session. If you
generate a record, it's in your office and in your possession as
a Legislator; you do not have to produce that if it's within the
scope of your legislative duties. Certainly, communicating with
constituents and otherwise doing some of the things you could do
on Facebook could be considered within legislative immunity. He
agreed with Representative Gruenberg's comment that the issue is
not when it's done, but rather the purpose.
Mr. Gardner further stated, in response to a follow-up comment by
Representative Gruenberg, that there could not be a policy that
defines the scope of the privilege. He said he thinks that, as
Representative Hawker mentioned, there are so many facets to
legislative immunity that it would be very difficult to fashion a
policy to cover everything. He said it would be dangerous to try
in the sense that if something wasn't covered, there would be
other arguments about why it wasn't covered. He said it was
better to rely on the common law and Constitution, and cases in
Alaska.
Mr. Gardner said, in response to another follow-up question by
Representative Gruenberg, that we should rely on the analysis in
the common law throughout the United States. It is certainly the
case law that we've gotten from the Alaska Supreme Court on this
point, which is that legislative immunity is considered very
broadly when any legislative purpose, however tangential, is
present before the Court.
REPRESENTATIVE GRUENBERG said he thought it was important to put
on the record that if it is Council's intent that we be following
the common law here and that contours should be as broadly
interpreted as it can be under the common law. If we have some
legislative record, some legislative history, something in here,
that may help it. There may be a discovery motion to get into
your Facebook or whatever it is and that's where the real
litigation may probably occur.
MR. GARDNER said he wasn't prepared to get very technical
regarding Facebook but one thing he doesn't know is whether
Facebook communications between a Legislator and a constituent
are maintained on a State computer or maintained on Facebook's
mainframe somewhere in the world. That might also factor into the
discussion in terms of possession of those records.
He added that Legislative Legal Services has always been
committed to all 60 clients. They argue and assert legislative
immunity as broadly as possible. As long as there is a good
faith, factual argument and the case law and the Constitution
support it, legal services will always defend our legislative
clients to the maximum.
REPRESENTATIVE STOLTZE said he was a little confused about why
there would be a need to do a FOIA or any kind of search.
Facebook by its nature, you're throwing your life out there for
everybody to see. You've already done that in advance, you don't
need to do a search. You've already revealed everything you care
to share and sometimes more as people find out.
CHAIR HAWKER pointed out that passing any of these motions does
not mandate or require anyone to set up an account acceptable
under state policy here by any individual Legislator or agency.
That is purely a voluntary thing to begin with. We are not
mandating or creating anything, which he agreed makes it a
completely voluntary exposure. He said for the record that no
matter how he votes on this he has no intention personally of
using Facebook for legislative business. None whatsoever. Other
folks have expressed a significant desire to.
REPRESENTATIVE PRUITT said that you can have private
conversations amongst individuals on Facebook and he thought the
conversation related to deleting information can play into the
FOIA request discussion we were just having. He thought that was
probably an important point to put out there.
MR. GARDNER added that when he was prefacing his remarks about
public records he was trying to respond to the Speaker's question
about his interpretation which was, can somebody get his records.
He is aware that there is a private chat function which adds
another dimension. He said Representative Stoltze makes a good
point that much of what happens on Facebook is out there for the
world to see. He's not sure it all is though, and there is that
private chat function which may get back into the records issue.
He said that if a person were to stray, perhaps, from legislative
purpose such as constituent contact into something like personnel
work or contracting or other areas where legislative immunity
hasn't been extended, those are the things that probably wouldn't
be covered by immunity and could be subject to some type of a
record request if they were in a private chat.
SPEAKER CHENAULT said he would just make the comment as it was
just stated that you can go private but at what point does that
private conversation change. There is a Facebook program that
we're using on State time to do State business and you're going
to go private with it; he doesn't know if there can be a FOIA
request or not on that. It just causes him concern.
REPRESENTATIVE GRUENBERG said he can see a situation where people
are on Facebook for some reason contacting your office as to a
potential course of action the Legislature may be taking. That
may very well be intended to be private and privileged, and the
question would be, since it's on Facebook, in some manner has the
privilege been waived. He said he was asking how we can protect
ourselves in advance. He said he thinks we're trying to make
certain we can retain our privacy.
CHAIR HAWKER said that is exactly why, at this juncture, the
committee has had this debate for ongoing years with a long
history of the same questions being raised, asked, answered, not
answered. It's why right now we are bringing these up as up or
down votes and if anyone for whatever reason is uncomfortable
with allowing access in accordance with the motions being made,
it would be the reason why one would vote no. No one questions
motive on this committee. If one's got a concern in one's own
heart, that's why one votes either in the affirmative or the
th
negative. He said his hope is that, with this 28 Legislature
here, we would bring some finality to this issue. We have been
operating under a temporary policy that actually expired quite a
th
while ago. This committee should have taken action in the 27
Legislature to resolve this and it did not.
SENATE PRESIDENT HUGGINS said he was going to be charging out of
here in a few moments. He came here prepared to vote this and he
is not dodging any votes. If he were here, he would vote no on
motion #1. He would support motion #3 on press and webmasters. He
said to take it one step further, if it keeps you from running
for the Legislature because you can't have Facebook in your
office, then don't run; or buy your own computer and do it on
your own time. Same thing for staff. If we don't get to the vote,
you heard what his vote would be.
CHAIR HAWKER said Senator Huggins has very clearly stated there
are no right answers to this question; it is a pure policy call.
3:19:26 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council allow
access to Facebook from all legislative computers for legislative
business only.
A roll call vote was taken.
YEAS: Micciche
NAYS: Chenault, Gruenberg, Pruitt, Stoltze, Huggins,
Coghill, Egan, Meyer, Stevens, Hawker
The first Facebook motion failed 1-10.
3:20:36 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council allow
access to Facebook for nonpartisan legislative agencies and their
staff for legislative business only.
CHAIR HAWKER objected to comment that Representative Gruenberg
was concerned with the language in this motion because it states
the Legislative Affairs Agency, it did not state what sub-
agencies comprise the Legislative Affairs Agency. He said he
would like to place on the record and a written copy will be
provided to members that for the purposes of this motion,
"nonpartisan legislative agencies" means (1) the Legislative
Affairs Agency, comprised of the Office of the Executive
Director, Legislative Administrative Services, Information and
Teleconferencing, and Legislative Legal and Research Services;
(2) the Select Committee on Legislative Ethics; (3) the
Legislative Finance Division; (4) the Legislative Audit Division;
(5) the Office of the Ombudsman; and (6) the Office of Victims'
Rights."
Chair Hawker, in response to a request by Representative
Gruenberg, agreed to make part of the record the Doug Gardner
memo of October 28, 2013 (full text of memo may be found in
committee documents on BASIS).
A roll call vote was taken.
YEAS: Pruitt, Stoltze, Coghill, Egan, Meyer, Stevens,
Micciche, Hawker
NAYS: Chenault, Gruenberg, Huggins
The second Facebook motion passed 8-3.
3:23:29 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council allow
access to Facebook for legislative press offices and webmasters
for legislative business only.
CHAIR HAWKER objected for the purpose of a roll call vote.
A roll call vote was taken.
YEAS: Gruenberg, Pruitt, Huggins, Coghill, Egan, Meyer,
Stevens, Micciche, Hawker
NAYS: Chenault, Stoltze
The third Facebook motion passed 9-2.
3:24:45 PM
SENATE PRESIDENT HUGGINS moved that Legislative Council allow
access to Facebook for legislators and their staff for
legislative business only.
CHAIR HAWKER objected for discussion.
REPRESENTATIVE PRUITT asked if Council failed to pass this motion
would that remove the current policy that allows Legislators to
use their logins to access the State's computer system for
Facebook.
CHAIR HAWKER confirmed that was so.
REPRESENTATIVE STOLTZE noted that if motion #4 is adopted, it
would essentially be adopting motion #1 given the other motions
have been adopted.
CHAIR HAWKER agreed and said it was another way of allowing
everyone to express specifically their position on each of the
three components of the Legislative Branch.
VICE CHAIR MICCICHE said that we can make the statements we want
to, with all due respect to some of the folks that he respects
most in the Legislature, but the world changes. There is a whole
demographic of folks that he communicates with about legislative
affairs and legislative issues, community meetings, and committee
meetings on Facebook that often don't communicate any other way.
His goal is to get the folks in that demographic engaged any way
he possibly can. He said he did not have a Facebook account until
serving in the Legislature became a very high probability. He
said he finds it to be an incredible tool, a very effective way
to communicate with younger folks in his district that maybe
don't read the news and maybe normally aren't engaged; who
nonetheless are a very important part of his constituency. If it
turns out that he has to communicate with them on Facebook by
bringing in a personal computer, so be it. He said he strongly
suggests that folks think about a changing world and make sure
that our Legislature communicates effectively in that world as it
changes.
CHAIR HAWKER, in response to a request for clarification from
Senator Meyer, said that if motion #4 passes, there has been the
same substantial effect of passing #1 without motions #2 and #3.
SENATOR STEVENS said he thought the Chair should rule this motion
out of order. He said the basic rules say that you can't keep
making the same motion over and over again unless there has been
progress. He said there has been no progress. He said it seems to
him this is just restating motion #1.
CHAIR HAWKER said, respectfully, it is not out of order. He said
if Council fails to pass motion #4, we have not made the same
motion as #1 and we don't know what the outcome of motion #4 is
going to be. It is not the same as motion #1; it would be the
suite of motions that would be the same as #1, not the individual
motions.
A roll call vote was taken.
YEAS: Gruenberg, Pruitt, Egan, Meyer, Stevens, Micciche,
Hawker
NAYS: Chenault, Stoltze, Huggins, Coghill,
The fourth Facebook motion failed to pass 7-4
CHAIR HAWKER noted that due to the operating policy of
Legislative Council which requires eight (8) votes to approve a
motion, the fourth Facebook motion failed to pass.
3:31:20 PM
REPRESENTATIVE PRUITT moved that Legislative Council allow access
to Facebook for Legislators for legislative business only.
CHAIR HAWKER objected for a question to ask if it allows a
Legislator to allow their staff to utilize their login to access
Facebook.
REPRSENTATIVE STOLTZE objected to the motion, opining that it was
the same motion as one previously voted on.
CHAIR HAWKER ruled that it was not the same motion and that it
was a fair motion to put before the committee. He further stated,
in response to a question by Representative Gruenberg, that he
wanted to resolve this issue here and now. He said all
parliamentary motions are available to every member of this
committee.
3:33:42 PM
REPRESENTATIVE GRUENBERG moved that Legislative Council postpone
this motion until the next meeting.
CHAIR HAWKER objected for a roll call vote and recommended a no
vote.
A roll call vote was taken.
YEAS: Gruenberg, Egan
NAYS: Chenault, Pruitt, Stoltze, Huggins, Coghill, Meyer,
Stevens, Micciche, Hawker
The motion to postpone failed to pass 2-8.
CHAIR HAWKER asked Representative Pruitt to please very clearly
restate his motion.
VICE CHAIR MICCICHE, prior to Representative Pruitt restating his
motion, said he wanted to clarify that he does not allow use of
his login for his Facebook page in his office by his staff. He
thought the prior policy was for legislative use only, for
legislative business only. He said folks might find that motion
more tenable.
CHAIR HAWKER, in response to discussion between Senator Meyer and
Representative Pruitt regarding adding a sunset date to the
motion, said that with all due respect, that is what we have been
doing, kicking the can down the road. He said that the current
Computer Systems Use Policy as adopted by Legislative Council
provides that users shall not represent themselves as another
user unless authorized to do so by that user. Thus, passing the
motion Representative Pruitt has placed on the table allowing
Legislators to access Facebook, period, would have the effect of
authorizing staff, if they are specifically authorized by a
Legislator to authorize that staff; which, quite frankly, is the
motion that was before us. The wording is sufficiently different.
He said he believes it's a subtle difference. Each office would
then be able to make a policy regarding that issue.
Chair Hawker, in response to a comment by Representative
Gruenberg, said the ruling of the Chair is that the motion is in
order and can be voted on its own merits.
Chair Hawker, in response to Ms. Lucky's request for
clarification, said the motion before Council is to allow
Facebook access by Legislators only in accordance with the state
Computer Systems Acceptable Use Policy adopted by Legislative
Council updated January 2013. He then asked if there was an
amendment to the motion.
SENATOR MEYER explained his offer of a possible amendment that
placed a sunset date on the motion. He said if some folks were
uncomfortable in voting for this, if they knew that we would take
a look at it in one year, it might be better. In his opinion,
we've had this policy in place, as far as he knows there hasn't
been any mischief done and so he is comfortable with it.
REPRESENTATIVE STOLTZE said that the motion is almost the same as
#1 and that 10 people were pretty resolute maybe an hour ago. He
said he is going to keep his same position throughout the
meeting.
SENATOR COGHILL said that the question Council is trying to
grapple with is what Facebook really means to communicate. Part
of the problem is that Facebook changes the underlying privacy
policies and there's all kind of issues like that. Secondly,
we're going into a campaign season. We don't know really how to
define legislative use without getting into some heavy minutiae,
so it creates a cloud that we're going to have an awful hard time
defining. If people want to use their own personal computers to
do Facebook, it's much clearer; they can wander into State
business but they can also do their private business and it just
seems cleaner that way to him. He said he is going to stay with
no and not kick the can down the road.
CHAIR HAWKER noted that there hasn't yet been a motion to amend
the motion.
REPRESENTATIVE GRUENBERG said his thinking has evolved in the
last half hour. He said as we parse this out and essentially
divided motion #1, that focused his thinking. He restated motions
#2 and #3, and said what we're going to be debating now is
whether the Legislators themselves can use Facebook and then,
ultimately, whether the staff can use Facebook and the question
really is, does it make sense to divide these people up,
particularly, if whether we ourselves should be banned, even for
legislative business, from using Facebook. We are at the core of
this and if we allow these other people to use it, it doesn't
make a lot of sense to him that we can't use it ourselves. It
doesn't make sense to parse it out by category.
3:47:14 PM
SENATOR MEYER, after some discussion between Chair Hawker and
Representative Gruenberg about the process, moved to amend the
motion on the floor to add a sunset of January 15, 2015.
VICE CHAIR MICCICHE, after a comment by Representative Stoltze,
said that in his view, this motion does not provide unlimited
access to staff. He said it means that he can continue to
directly communicate with his constituents. Personally, for him,
it says that his staff will not be posting pictures of their cats
on state time. He said he thinks there is a difference between
this motion and motion #1.
3:48:38 PM
CHAIR HAWKER noted for the record that he did object to the
motion to amend for purposes of discussion.
Chair Hawker called Council's attention to a technical issue with
the motion that needs to be addressed. He said that if Senator
th
Meyer put a date specific or even to use the end of the 28
Legislature, means that this authorization expires so that we go
into the legislative session with no authority for Legislators or
staff to access Facebook until Legislative Council comes into
effect and has a meeting in the next session. As a practical
matter, the date needs to be extended long enough for the next
Legislative Council to take this up and start the process all
over again. He suggested withdrawing the motion to amend and
making a new motion to amend with a date of, perhaps, March 1.
3:50:32 PM
SENATOR MEYER withdrew his motion to amend.
3:50:48 PM
SENATOR MEYER moved to amend the motion on the floor to add a
sunset of March 1, 2015.
CHAIR HAWKER noted that the motion to amend is to amend
Representative Pruitt's motion allowing Legislators only access
to Facebook in accordance with the established policy through
March 1, 2015. He then objected for further discussion.
SENATOR MEYER said he is new to Legislative Council and the
reason he is doing this is that it seems the policy was working.
There is some concern with the campaign election season coming
up. Maybe there will be some mischief going on, in which case
we'll review it shortly thereafter and say no more and we'll get
rid of it. He said we may see that it works just fine and it's a
very effective tool to work with our constituents and we'll just
simply keep it going.
CHAIR HAWKER, in response to a question by Senator Egan, said
that the way the rule reads now, and this rule will not change,
is that users shall not represent themselves as another user
unless authorized to do so.
Chair Hawker, in response to a request for clarification by Ms.
Lucky, noted that Council is debating the motion to amend.
SENATOR STEVENS said that should this amendment pass, it doesn't
preclude Legislative Council from dealing with this before March
1, 2015; they can deal with it at any time.
CHAIR HAWKER, in response to a question by Representative
Stoltze, said that this is an amendment to the main motion and
that he would repeat the question before calling for the vote.
Chair Hawker said the question before this committee is Senator
Meyer's motion to amend the main motion made by Representative
Pruitt to allow individual Legislators access to Facebook in
accordance with our established procedure. Senator Meyer's
amendment would add to that motion effectively a sunset date of
March 1, 2015, and by that time Council would have to readdress
the issue.
3:55:19 PM
A roll call vote on the motion to amend was taken.
YEAS: Chenault, Gruenberg, Pruitt, Egan, Meyer, Stevens,
Micciche
NAYS: Stoltze, Coghill, Hawker
The motion to amend failed to pass 7-3.
CHAIR HAWKER noted that the motion on the table is durable,
permanent allowing of Facebook for Legislators only in accordance
with existing policy. He further stated as a caveat that implicit
in any decision made by the Legislature at any time can always be
revisited as long as there is a venue to do so.
VICE CHAIR MICCICHE said there was a comment made earlier about
going into election season. He said he just wanted to remind this
committee that however you communicate with constituents, it must
be free of ethics issues associated with campaign season. So, we
continue to send newsletters, we continue to communicate with our
constituents as usual. If we have some other sort of Facebook
page or other campaign activity, it must be in accordance with
our ethics standards and separate from all legislative duties. He
said it is Alaska state law. He said to think about this, if we
had this discussion when email became a way to communicate with
constituents and folks were struggling with that transformation.
Clearly, that was a right decision, we ironed out those issues,
we attached some requirements to email and it's a very effective
way to communicate. It brought in a new generation of folks and,
in his view, we are always trying to get the younger generation
engaged. He said he strongly asks members to think about that
before we vote. In his view, it's very important for the way we
communicate and if you're not communicating that way, run a poll
in your district; find out how many folks are using Facebook to
learn about things and he thinks you'll find it's a surprising
proportion of the folks you represent.
3:58:52 PM
CHAIR HAWKER, with concurrence by Representative Pruitt as the
maker of the motion, said he was bringing the main motion to a
vote. He said the motion before this committee is that the
Legislative Council allows access to Facebook for individual
Legislators only for legislative business only in conformance
with our established Computer Systems Acceptable Use Policy
adopted by the Legislative Council and the most recent he has was
updated January 2013.
A roll call vote was taken.
YEAS: Chenault, Gruenberg, Pruitt, Egan, Meyer, Stevens,
Micciche, Hawker
NAYS: Stoltze, Coghill
The motion passed 8-2.
CHAIR HAWKER noted for the record that serious business has been
conducted as we have parsed out what our options are. What we
have in fact done today is affirm by a lengthy series of votes
and debate the policy that is currently in place with the
exception of adding to it our nonpartisan agencies. As far as it
relates to our partisan press offices and webmasters and
Legislators, our policy remains unchanged. What we have done is
formalize a policy that was previously out as a trial balloon
that had expired and needed to be resolved. We now have a long
and durable policy. He said for the record that, as Chair of this
th
committee through the end of the 28 Alaska State Legislature,
he does not intend to revisit this policy at any time during his
remaining tenure.
d. Procurement Procedure Update
CHAIR HAWKER noted that members had received a packet of the
proposed amendments to the legislative procurement manual. He
asked Mr. Gardner to define a durable record of what we're doing
here and asked him to explain why there is this package of
amendments and provide a brief description of each amendment. He
said that there is a motion drafted that would adopt all of the
amendments en bloc; if during the presentation a Legislator wants
to separate a single amendment for a separate vote, he will
remove it from the package and we will have a separate vote on
that individual amendment.
MR. GARDNER, after confirmation that there would be a quorum for
voting, stated that there was a significant change to the State's
procurement code in 2013, Chapter 19, SLA 2013. He said these
proposed amendments identify areas where there might be some
uncertainty or legal changes that might make it hard for us to go
forward with Legislative Procurement Procedures (LPP) as they are
written without some guidance from Council.
In section 1, there are two changes that are proposed to LPP
section 020(a). The first one is in (a)(2), which is a passage of
time issue and it's also got a nexus in some of the changes in
dollar amounts that were made at the request of the Executive
Branch in AS 36.30. This particular procurement procedure and
exemption like this could be described as unique to the
Legislative Branch. The proposal would be to raise the current
ceiling of $25,000 to $35,000.
CHAIR HAWKER interrupted to say that the change would take the
signature authority from $25,000 to $35,000.
MR. GARDNER said that was an accurate statement. He said the
second part of the first proposed amendment was to clarify LPP
section 020 (a) (4) by adding the language "with a state agency,
including a department, the University of Alaska, and a public
corporation." This clarification would be consistent with AS
36.30.700; it would make it easier for them to apply. LAA is
considering more contracting with State agencies at the
University and other public corporations than in the past. In his
view, it would bring LPP section 020(a) in line with AS
36.30.700, with a more frequent practice by the Legislature to do
business with other State entities listed and described.
Mr. Gardner, in response to a question by Senator Stevens,
confirmed that when contracting with a State agency, there will
not be a $35,000 cap. He said there is also a conforming change
that addresses LPP section 020 (a)(4).
CHAIR HAWKER, in response to a question by Representative
Gruenberg, confirmed that he would like Mr. Gardner to proceed
with reading through the amendments and take one up or down vote
on the package. If anyone objects to an amendment, it will be
pulled aside for a separate vote.
MR. GARDNER said amendment #2 continues the process of taking the
small procurement procedure the Executive Branch uses and
updating the dollar amounts as reflected in this amendment. He
said they looked at the LPP and suggested similar changes. One
tension they were trying to address and bring to the
Legislature's attention was, for example, a contractor installing
carpet for the Executive Branch would do that under one set of
standards; does Legislative Council want a separate set of dollar
amounts to apply when dealing with competitive sealed bidding for
a legislative project putting the same carpet down?
CHAIR HAWKER summed up the amendment to say that it conforms the
amounts in the legislative procurement procedures to the current
executive procurement code.
MR. GARDNER said regarding proposed amendment #3 that this is an
amendment that Legal has been holding for a period of time to get
on Legislative Council's agenda. It specifically adds "leased
space" to the exemption in LPP section 040 (a) (2). Leased space
is already included in Executive Branch code and this is an
existing interpretation that they'd like memorialized so there is
no controversy about it. He said that LPP section 040 was amended
by adding a subsection (d) earlier this year and they wanted to
clarify in subsection (b) that for a procurement officer, a
written justification is only relevant to (a)(1) of the section;
(d) also has its own written procurement officer finding. For
existing sections (2) and (3), those are simply exemptions and
they don't require a written justification by the procurement
officer. These changes are for consistency.
Proposed amendment #4 changes the term "sole source," which isn't
used by the State of Alaska, to "noncompetitive" bringing the LPP
into alignment with the other procurement procedures.
Proposed amendment #5 addresses a criticism by a bidder that the
language in LPP section 070 could be construed as stating that
the Legislative Branch only required a bid and performance bond,
eliminating all other bond requirements required in Alaska
Statutes. The amendment would clarify that Council didn't intend,
by providing for bid and performance bonds, to eliminate any
other bond that is currently required by law.
Mr. Gardner, after a clarification for Representative Gruenberg,
continued with proposed amendment #6. Starting with LPP section
145 (b)(4) - this is a technical change to reflect that AS 32.05
has been repealed. He said all of these amendments are technical
changes. They do not change any preferences, such as Alaska
bidder preferences, or anything this Council has directed the
Agency and committees to apply. All it does is correct or repeal
statutory references. He said he would describe this as a
technical amendment to LPP section 145(b).
Amendment #7 probably ties in effectively with a motion that
Council addressed earlier today, which was the Sitka lease
extension. Sometimes, when a lease or a contract is transferred,
it's very simple. From a legal standpoint, that type of
assignment is a true assignment. Had there not been a
subordination agreement required by the lender, with amendment
#7, Representative Hawker or a procurement officer in a committee
could simply have agreed to that assignment. Because there was
subordination agreement, that is considered a separate contract
and that is why we wanted to have Legislative Council address it.
He said he wanted to draw a line between an assignment that
doesn't have a subordination agreement and one that does have a
subordination agreement, which would still be required to come
before Council. This does not affect the Sitka situation but
would allow a simple assignment to be addressed by the Chair. The
purpose is that sometimes it is very difficult to have the Agency
be able to act in a business-like way and get back to people if
it's hard for committee members to get together during the
interim to approve an assignment.
4:16:52 PM
CHAIR HAWKER, in response to some discussion about amendment #7
between Mr. Gardner and Representative Gruenberg, noted that the
course of action if a member wishes for an amendment to be voted
on separately is to recommend that it be voted on separately and
he will remove it from the vote. At the request of
Representative Gruenberg, the Chair removed amendment #7 from the
suite of amendments for approval.
MR. GARDNER continued with amendment #8, which repeals LPP
section 190. He said this proposed amendment does not mean that
some staff and some committee members are not doing contract
evaluations, but it is not being done consistently, does not add
value to the process, and opens up the Legislature to unnecessary
liability. Because this section is not being uniformly followed
and doesn't add value to the process, they propose deleting it.
Amendment #9 addresses an issue with Kris Curtis, Legislative
Auditor, which came up last session. Right now, a contract that
the division enters into to prepare an audit report does not have
to be made public until after the audit is done. The theory is
that Legislative Audit would not want the person being audited to
know all of the objectives and goals of the contract and the
candid conversations that Legislative Audit would have with the
contractor. When that bill passed last session, it did not
address performance review reports, which are new to Legislative
Audit. This proposed amendment addresses just the contract and
the communications between Legislative Audit and the contractor.
Those reports would eventually be made public but not until the
performance review in this case is complete. It's an incongruity
right now that Ms. Curtis is dealing with. Legal prepared this
amendment to make Legislative Audit performance review contracts
consistent with audit report contracts.
CHAIR HAWKER summarized that this is applying a universal
standard observed by Legislative Audit regarding confidentiality
both to our regular audit process and to the new performance
review process established under Representative Chenault's bill.
MR. GARDNER agreed with the summary, adding only that it is as it
relates to the contract for those services for that contractor.
Moving on to proposed amendment #10, Mr. Gardner said that it is
Legislative Legal's judgment that right now, this is unclear.
There hasn't been a bid protest in some considerable period of
time so we haven't had to address what would happen if a protest
is sustained in whole or part in terms of a protestor's damages.
Right now, the Legislature has far more exposure than the
Executive Branch does. AS 36.30, as you can see from the
footnote, limits damages that a protestor might have to
reasonable bid or proposal preparation costs. For example, it
wouldn't allow for a contractor to claim for some anticipated
mobilization or consequential damages as a result of not bidding,
perhaps, on another project, hoping they were going to get this
one. This proposed amendment brings our procurement procedures in
line in terms of damages with the Executive Branch 36.30.
CHAIR HAWKER, at the request of Representative Gruenberg, removed
proposed amendment #10 from the suite of amendments for approval.
MR. GARDNER said that proposed amendment #11 includes a
definition that "supplies" has the same definition that it has in
AS 36.30.990. If Legislative Council approves this, this would be
approving Legislative Legal's longstanding interpretation and
practice. They're using this opportunity to put it in writing.
This amendment would mean that "supplies" would include leases.
This is an effort to conform Legal's interpretation to the
written word.
CHAIR HAWKER said that was a very excellent presentation of these
proposed amendments. After reviewing his staff's updated written
motion, he asked Speaker Chenault to please make the motion.
4:27:13 PM
SPEAKER CHENAULT moved that Legislative Council adopt proposed
amendments numbers 1-6, 8, 9 and 11 to the Legislative
Procurement Procedure as presented.
The motion passed with no objections.
CHAIR HAWKER said Council would set aside amendments #7 and #10
and take them up at a later meeting.
Chair Hawker updated Council on items slated for future Council
meetings. The first was regarding the Anchorage LIO project,
saying it was on time and on budget. A policy on furnishings for
the LIO will be brought up at a future meeting. He said they will
be looking at a proposal to consider the degree of
standardization and modularization. Another item that has been
languishing and personally frustrating is the allowance account
policy. He said he intends at the next meeting, after having
completed the necessary research, to truly define what Council's
options are and bring back a vote on allowance accounts to be
effective for the coming tax year.
CHAIR HAWKER, in response to a question from Senator Meyer, said
that proposing expanded parking for the Anchorage LIO was looked
at and it was determined that it was an inappropriate item for
consideration as it is a leased facility. The Legislature
wouldn't want to pay for improvements to parking for a long-term
lease and, likewise, the landlords had no interest in improving
parking without a longer-term lease to support it. He said as far
as parking policy goes, they are continuing to look
administratively at parking policy to improve the utilization of
the existing lot as well as to make space available in other lots
in town to improve the overall parking access to this facility as
needed.
Chair Hawker, in response to a comment by Representative Stoltze,
said that the policy that had been followed prior to the vote on
office allowance accounts in the previous Legislative Council
definitely was not acceptable in accordance with the Internal
Revenue Service standards of maintaining tax exemption elements
of any form of reimbursement. He said he continues to research
how far we can push the envelope and maintain tax exempt status
for the reimbursement and maintenance of office allowance
accounts. He said he will be bringing that forward one way or
another at the next meeting.
REPRESENTATIVE GRUENBERG, with regard to office furniture,
requested that the Chair let the members know what the possible
choices are and seek their input.
SENATOR STEVENS asked whether Council was going to address
security in the Capitol.
CHAIR HAWKER said a new security station has been created. He
asked Ms. Varni to address anything beyond the security station
and improving the front end review of folks coming into the
Capitol.
MS. VARNI, Executive Director of Legislative Affairs Agency, said
that Don Johnston is in the process of having the security desk
moved forward in the Capitol. Steve Daigle has hired an ex-police
officer from the Juneau Police Department; so in addition to
having Mel Personette and Steve Daigle as armed security out of
uniform, the front desk person will also be armed personnel.
CHAIR HAKWER interrupted to say that the discussion may be
crossing a line into security matters that should be discussed in
executive session. He then ascertained, and Senator Stevens
agreed, that there were no additional security updates which
might necessitate an executive session.
There being no further business before the committee, the
Legislative Council meeting was adjourned at 4:35 p.m.
4:34:59 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| Agenda.pdf |
JLEC 10/30/2013 1:00:00 PM |
|
| IIIa. Kenai Office Lease.pdf |
JLEC 10/30/2013 1:00:00 PM |
|
| IIIb. Kodiak Lease.pdf |
JLEC 10/30/2013 1:00:00 PM |
|
| IIIc. Sitka Lease.pdf |
JLEC 10/30/2013 1:00:00 PM |
|
| IVa. Travel Claims.pdf |
JLEC 10/30/2013 1:00:00 PM |
|
| IVb. Capitol Restoration Update.pdf |
JLEC 10/30/2013 1:00:00 PM |
|
| IVc. Facebook.pdf |
JLEC 10/30/2013 1:00:00 PM |
Facebook |
| IVc. Facebook - additional testimony.pdf |
JLEC 10/30/2013 1:00:00 PM |
Facebook |
| IVc. Facebook - Gardner Memo.pdf |
JLEC 10/30/2013 1:00:00 PM |
Facebook |