Legislature(2003 - 2004)

05/06/2003 03:45 PM Senate STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                    
                 SENATE STATE AFFAIRS COMMITTEE                                                                               
                           May 6, 2003                                                                                          
                             3:45 pm                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Gary Stevens, Chair                                                                                                     
Senator John Cowdery, Vice Chair                                                                                                
Senator Fred Dyson                                                                                                              
Senator Gretchen Guess                                                                                                          
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Lyman Hoffman                                                                                                           
                                                                                                                              
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 14 am                                                                                                            
"An Act  relating to  an absence  from the  state while  providing                                                              
care  for  a   terminally  ill  family  member   for  purposes  of                                                              
determining  eligibility  for  a   permanent  fund  dividend;  and                                                              
providing for an effective date."                                                                                               
     MOVED SCS HB 14(STA) OUT OF COMMITTEE                                                                                      
                                                                                                                                
SENATE BILL NO. 203                                                                                                             
"An  Act   relating  to   certain  administrative  hearings;   and                                                              
establishing  the office of  administrative hearings  and relating                                                              
to that office."                                                                                                                
     MOVED CSSB 203(STA) OUT OF COMMITTEE                                                                                       
                                                                                                                                
CS FOR HOUSE BILL NO. 81(STA)                                                                                                   
"An  Act relating  to motor  vehicle emissions  and to  inspection                                                              
decals  and  fines  relating  to   motor  vehicle  emissions;  and                                                              
providing for an effective date."                                                                                               
     MOVED CSHB 81(STA) OUT OF COMMITTEE                                                                                        
                                                                                                                                
SENATE JOINT RESOLUTION NO. 18                                                                                                  
Proposing amendments  to the Constitution  of the State  of Alaska                                                              
relating to  limiting appropriations  from and  inflation-proofing                                                              
the  Alaska permanent  fund by  establishing a  percent of  market                                                              
value spending limit.                                                                                                           
     MOVED CSSJR 18(STA) OUT OF COMMITTEE                                                                                       
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
HB 14 - See State Affairs minutes dated 4/29/03 and 5/1/03                                                                      
SB 203 - No previous action to record.                                                                                          
                                                                                                                                
                                                                                                                                
HB 81 - See Transportation minutes dated 4/28/03                                                                                
SJR 18 - See State Affairs minutes dated 5/1/03                                                                                 
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Jim Pound                                                                                                                       
Staff to Representative Hugh Fate                                                                                               
Alaska State Capitol, Room 128                                                                                                  
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Testified on HB 14                                                                                        
                                                                                                                                
Dave Stancliff                                                                                                                  
Alaska State Capitol, Room 111                                                                                                  
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Introduced SB 203                                                                                         
                                                                                                                                
Benjamin Brown                                                                                                                  
Alaska State Chamber of Commerce                                                                                                
     nd                                                                                                                         
217 2 Street                                                                                                                    
Juneau, AK 99801                                                                                                                
POSITION STATEMENT: Testified on SB 203                                                                                       
                                                                                                                                
Rick Urion                                                                                                                      
Director, Division of Occupational Licensing                                                                                    
Department of Community & Economic Development                                                                                  
PO Box 110800                                                                                                                   
Juneau, AK 99811-0800                                                                                                           
POSITION STATEMENT: Testified on SB 203                                                                                       
                                                                                                                                
Andrew Hemenway                                                                                                                 
Hearing Officer: Procurement & Longevity Bonus                                                                                  
Department of Administration                                                                                                    
PO Box 110200                                                                                                                   
Juneau, AK  99811-0200                                                                                                          
POSITION STATEMENT: Testified on SB 203                                                                                       
                                                                                                                                
Kevin Jardell                                                                                                                   
Assistant Commissioner                                                                                                          
Department of Administration                                                                                                    
PO Box 110200                                                                                                                   
Juneau, AK  99811-0200                                                                                                          
POSITION STATEMENT: Testified on SB 203                                                                                       
                                                                                                                                
Representative Kevin Meyer                                                                                                      
Alaska State Capitol, Room 513                                                                                                  
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor HB 81                                                                                             
                                                                                                                                
Charles Hosack                                                                                                                  
Deputy Director, Division of Motor Vehicles                                                                                     
Department of Administration                                                                                                    
PO Box 110200                                                                                                                   
Juneau, AK  99811-0200                                                                                                          
POSITION STATEMENT: Testified on HB 81                                                                                        
                                                                                                                                
Scott Leist                                                                                                                     
No address provided                                                                                                             
POSITION STATEMENT: Testified on HB 81                                                                                        
                                                                                                                                
Ron King                                                                                                                        
Program Manager, Air Non-Point & Mobile Sources                                                                                 
Department of Environmental Conservation                                                                                        
410 Willoughby                                                                                                                  
Juneau, AK 99801-1795                                                                                                           
POSITION STATEMENT: Testified on HB 81                                                                                        
                                                                                                                                
James Armstrong                                                                                                                 
No address provided                                                                                                             
POSITION STATEMENT: Testified on HB 81                                                                                        
                                                                                                                                
Robert Storer                                                                                                                   
Executive Director, Alaska Permanent Fund Corporation                                                                           
Department of Revenue                                                                                                           
PO Box 110400                                                                                                                   
Juneau, AK  99811-0400                                                                                                          
POSITION STATEMENT: Testified on SJR 18                                                                                       
                                                                                                                                
Bob Bartholomew                                                                                                                 
Chief Operating Officer, Alaska Permanent Fund Corporation                                                                      
Department of Revenue                                                                                                           
PO Box 110400                                                                                                                   
Juneau, AK  99811-0400                                                                                                          
POSITION STATEMENT: Testified on SJR 18                                                                                       
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-26, SIDE A                                                                                                            
                                                                                                                                
CHAIRMAN GARY  STEVENS called the  Senate State Affairs  Committee                                                            
meeting to order  at 3:45 pm. Present were Senators  John Cowdery,                                                              
Gretchen  Guess, Fred  Dyson  and Chair  Gary  Stevens. The  first                                                              
order of business to come before the committee was HB 14.                                                                       
                                                                                                                                
            HB  14-PERMANENT FUND ALLOWABLE ABSENCES                                                                        
                                                                                                                              
CHAIR GARY STEVENS explained that the committee substitute (CS)                                                                 
removes all  reference to  the term canon  law and lists  specific                                                              
family  members  that  could accompany  a  terminally  ill  family                                                              
member  out  of state  and  maintain  eligibility for  the  Alaska                                                              
Permanent Fund Dividend.                                                                                                        
                                                                                                                                
SENATOR FRED DYSON  made a motion to adopt \D version  CS of HB 14                                                              
and there was no objection.                                                                                                     
                                                                                                                                
JIM POUND, staff to Representative  Fate, reported the sponsor had                                                              
no objection to the CS as proposed.                                                                                             
                                                                                                                                
SENATOR JOHN  COWDERY made  a motion to  move SCS HB  14(STA) from                                                              
committee with individual recommendations  and asked for unanimous                                                              
consent. There being no objection, it was so ordered.                                                                           
                                                                                                                                
            SB 203-OFFICE OF ADMINISTRATIVE HEARINGS                                                                        
                                                                                                                                
                                                                                                                                
DAVE  STANCLIFF,  staff to  Senator  Gene Therriault,  stated  the                                                              
current administration  would like to separate the  individuals or                                                              
agencies  that adjudicate  regulations and  those that  promulgate                                                              
regulations.  In Alaska  there are  a number or  types of  hearing                                                              
officers  (adjudicators) and  hearing examiners  and SB 203  deals                                                              
with adjudicators  that make the  decisions when  someone contests                                                              
administrative law.                                                                                                             
                                                                                                                                
Other states have  found that by providing  protection, separation                                                              
and  autonomy  for  their  adjudicators,   the  work  quality  and                                                              
decisional  processes  improve  significantly.   The  sponsor  has                                                              
worked extensively with the administration  to develop a system of                                                              
centralized hearing officers that  is cost effective and minimally                                                              
disruptive for existing employees.  SB 203 establishes that system                                                              
within the Department of Administration.                                                                                        
                                                                                                                                
RCA, workers compensation  and tariff functions  were excluded due                                                              
to  the  need  for  high  expertise   or  long-term  institutional                                                              
knowledge.  Included was  the option for  commissioners to  assign                                                              
final decision-making  authorities to  an adjudicator.    However,                                                              
the new rules  that will likely be  based on the judicial  code of                                                              
conduct apply  to all  hearing officers in  the state,  even those                                                              
that don't fall within the central panel.                                                                                       
                                                                                                                                
Adjudicator  decisions  would  be final  unless  the  commissioner                                                              
determines  that  some  other  action  should be  taken.  In  such                                                              
instances,  the  commissioner would  be  required  to take  action                                                              
within 30 days and substantiate the facts in the public record.                                                                 
                                                                                                                                
The Alaska  Association of Administrative  Law Judges  and Hearing                                                              
Officers  examined  the bill  and  had seven  recommendations.  He                                                              
noted  the  recommendations  were  listed  in  a  blank  committee                                                              
substitute (CS).                                                                                                                
                                                                                                                                
CHAIR  GARY STEVENS  asked for  a motion  to adopt  the CS as  the                                                              
working document.                                                                                                               
                                                                                                                                
SENATOR GRETCHEN GUESS made a motion  to adopt CSSB 203 \Q version                                                              
and there was no objection.                                                                                                     
                                                                                                                                
CHAIR  GARY  STEVENS asked  Mr.  Stancliff  if he  had  additional                                                              
comments.                                                                                                                       
                                                                                                                                
MR. STANCLIFF  emphasized that  part of  the reason for  selecting                                                              
the proposed  model  was because  it is cost  effective. The  bill                                                              
includes a liberal  transition phrase to allow  the administration                                                              
to proceed deliberately  and not incur heavy costs.  That would be                                                              
accomplished by having existing agency  hearing officers and their                                                              
support  staff transfer  to the  central location.  He opined  the                                                              
increased efficiencies would overcome associated startup costs.                                                                 
                                                                                                                                
BENJAMIN  BROWN spoke  on behalf  of the Alaska  State Chamber  of                                                              
Commerce in support of SB 203 to  assert that the bill would be an                                                              
investment  in  long-term  cost  savings  and  efficiencies.  More                                                              
importantly, it would provide transparency  and consistency to the                                                              
Alaska citizens.                                                                                                                
                                                                                                                                
The state  chamber works  with the  administrative law  process as                                                              
individuals and businesses on a daily  basis. When dissatisfaction                                                              
with an agency decision occurs, it  is problematic that the appeal                                                              
must be made to  that same agency.  SB 203 creates  a transparent,                                                              
bright-line office  of centralized  hearings, which would  make it                                                              
much easer for  Alaskans to know that impartiality  is at play and                                                              
the hearing officer has no inside agenda.                                                                                       
                                                                                                                                
When  legislative  research  prepared  an assessment  of  all  the                                                              
hearing  functions done  by state  agencies, they  found that  the                                                              
disparity  in the  turnaround time  ranges from  several weeks  to                                                              
over a year. SB 203 would standardize  turnaround times and record                                                              
keeping, which would work to everyone's benefit.                                                                                
                                                                                                                                
4:00 pm                                                                                                                       
                                                                                                                              
CHAIR GARY STEVENS asked whether  the new system would protect the                                                              
hearing  officer from  agency influence  by  removing the  hearing                                                              
officer from the agency.                                                                                                        
                                                                                                                                
MR.  BROWN  replied  that  it  would   remove  the  appearance  of                                                              
impropriety. Although his experience  is that there isn't a lot of                                                              
undue influence  exercised, there is  both the appearance  and the                                                              
potential.                                                                                                                      
                                                                                                                                
SENATOR JOHN  COWDERY asked whether  hearing decisions  have legal                                                              
standing.                                                                                                                       
                                                                                                                                
MR. BROWN  explained that  an administrative  hearing decision  is                                                              
the  final  administrative  law  or agency  action  before  it  is                                                              
appealed to a court.                                                                                                            
                                                                                                                                
SENATOR COWDERY  asked if  a hearing  officer petitions  the court                                                              
for enforcement of decisions.                                                                                                   
                                                                                                                                
MR.  BROWN   said  a   court  order  could   be  obtained   if  an                                                              
administrative hearing decision were ignored.                                                                                   
                                                                                                                                
RICK URION,  Director of the  Division of Occupational  Licensing,                                                              
testified in support of SB 203. His  division has just one hearing                                                              
officer and a  caseload that is far too large  for one individual.                                                              
Because of  this, one of the  largest problems the  division faces                                                              
is  the  time  it takes  to  reach  final  adjudication.  In  some                                                              
instances, it has taken over a year for the entire process.                                                                     
                                                                                                                                
In  the  interest   of  speedy  adjudication  of   issues  in  his                                                              
department, he urged passage of SB 203.                                                                                         
                                                                                                                                
CHAIR  GARY STEVENS  asked  whether  the number  of  cases in  his                                                              
department was consistent.                                                                                                      
                                                                                                                                
MR. URION  replied the caseload  is consistently steady.  He added                                                              
they have  had no difficulty  with perceived or  real impropriety;                                                              
they simply don't have enough people to handle the load.                                                                        
                                                                                                                                
ANDREW   HEMENWAY,  hearing   officer  with   the  Department   of                                                              
Administration,  stated  he  worked  with Mr.  Stancliff  and  Mr.                                                              
Jardell from the  Commissioner's office to craft  the legislation.                                                              
He explained  that they  removed selected  functions such  as RCA,                                                              
the  worker  compensation  board  and  fisheries  commission  from                                                              
consideration  because they have  existing hearing officer  panels                                                              
and  therefore  more flexibility  in  handling  caseloads.  Beyond                                                              
that, they looked at the range of  decisions that hearing officers                                                              
make  to  determine  whether  or not  the  decisions  were  policy                                                              
oriented  or  fact   oriented.  The  latter  seemed   to  be  more                                                              
appropriate to include in the central  panel system and the policy                                                              
oriented decisions were initially left out.                                                                                     
                                                                                                                                
In terms  of the financial  impact and  efficiency of  the hearing                                                              
function,  he said that  his perception  is that  as his  caseload                                                              
goes up  efficiency goes  down. Consolidating  the hearings  would                                                              
spread  the  caseload   so  the  various  agencies   could  get  a                                                              
consistent level of service and the  hearing officers could have a                                                              
consistent caseload.                                                                                                            
                                                                                                                                
He  referenced Senator  Cowdery's  previous question  and made  it                                                              
clear that under this legislation  the hearing officer would issue                                                              
the proposed decision, it would go  to the agency for adoption and                                                              
enforcement would be  up to the agency. The hearing  officers have                                                              
no role in the investigation or enforcement.                                                                                    
                                                                                                                                
CHAIR GARY STEVENS asked what the  qualifications were for hearing                                                              
officers and whether they were all attorneys.                                                                                   
                                                                                                                                
MR. HEMENWAY replied  that hearing officers must  be attorneys for                                                              
hearings conducted  under the Administrative Procedure  Act, which                                                              
accounts for less that 50 percent  of all administrative hearings.                                                              
There is  no statutory  requirement that  the hearing officers  be                                                              
attorneys in any other hearings.                                                                                                
                                                                                                                                
He noted that  all hearing officers that would  transfer under the                                                              
transitional provisions of the legislation are attorneys.                                                                       
                                                                                                                                
CHAIR  GARY STEVENS  asked  how  professional standards  would  be                                                              
improved.                                                                                                                       
                                                                                                                                
MR. HEMENWAY  said the bill  would formalize the  current practice                                                              
that hearing officers are attorneys  with two years practice. With                                                              
hearing officers in a central panel,  an in-house training process                                                              
could  be created  that might  not  be financially  feasible in  a                                                              
single agency.                                                                                                                  
                                                                                                                                
KEVIN  JARDELL,  Assistant  Commissioner   of  the  Department  of                                                              
Administration,   reported  they   have  had   success  with   the                                                              
independent  hearing officer  for tax appeals  that works  largely                                                              
with oil  and gas tax issues.  Industry believes they  are treated                                                              
more fairly  at hearings even though  the win loss record  has not                                                              
changed. He  said they look forward  to the same success  with the                                                              
proposed centralized panel.                                                                                                     
                                                                                                                                
He  acknowledged that  the financial  picture  is incomplete,  but                                                              
they project  a net increase  of about  $136,000 in the  phase one                                                              
personnel shift.  Once they  receive the  financial data  from the                                                              
minor boards and  commissions that can't justify  a single hearing                                                              
officer  and have been  contracting private  attorneys, they  feel                                                              
confidant  they will  show a  great  savings and  the public  will                                                              
realize increased response efficiency.                                                                                          
                                                                                                                                
CHAIR GARY  STEVENS asked if the  plan is to eventually  expand to                                                              
agencies that aren't currently included.                                                                                        
                                                                                                                                
MR. JARDELL  replied they want the  system to be  expansive enough                                                              
to ensure  that it has  a chance to work,  but small enough  to be                                                              
manageable.  They  hope  to  continue  to  bring  in  agencies  to                                                              
increase efficiencies  and not bring in agencies  that are working                                                              
well on their own.                                                                                                              
                                                                                                                                
SENATOR  COWDERY  asked  how  they develop  time  limits  for  the                                                              
hearings.                                                                                                                       
                                                                                                                                
MR. JARDELL  said the timeline was  180 days at one time,  but the                                                              
attorney general suggested  making it just 90  days. Some hearings                                                              
are certainly  more complicated  in nature and  take more  time to                                                              
develop  the record.  The  concept in  the  bill is  to address  a                                                              
majority of the  cases, give the public a quick  turnaround and if                                                              
an  agency needs  a  greater amount  of time  then  do it  through                                                              
regulation and justify the need.                                                                                                
                                                                                                                                
SENATOR GRETCHEN GUESS asked for  assurance that the bill wouldn't                                                              
change the way regulations are created.                                                                                         
                                                                                                                                
MR. STANCLIFF  replied  SB 203 does  not address  the creation  of                                                              
regulation.                                                                                                                     
                                                                                                                                
MR. HEMENWAY  clarified  that the legislation  would provide  that                                                              
the  chief  hearing   officer  would  promulgate   the  procedural                                                              
regulations that govern the hearing.                                                                                            
                                                                                                                                
MR.  STANCLIFF noted  that evidence  from  other states  indicates                                                              
that when the adjudication bar is  high, more care is taken in the                                                              
promulgation and enforcement of regulations.                                                                                    
                                                                                                                                
SENATOR GUESS noted  the commissioners of education,  HESS and DNR                                                              
weren't  listed  in  the transitional  language  even  though  the                                                              
departments  were included. She  asked if  this was because  those                                                              
departments don't have a hearing officer.                                                                                       
                                                                                                                                
MR. STANCLIFF  explained that  Tamara Cook [Director,  Legislative                                                              
Legal  Services] developed  the list  and  although changes  might                                                              
still be  made, the sponsor didn't  want to "create  any different                                                              
flow, administratively, in these conforming statutes."                                                                          
                                                                                                                                
SENATOR GUESS  asked for  a list of those  not included.  She then                                                              
commented  she  found  it  interesting   that  the  Department  of                                                              
Administration was  willing to assume  the function and  asked why                                                              
the Department of Law wasn't selected.                                                                                          
                                                                                                                                
MR.  STANCLIFF said  they deferred  to  the national  organization                                                              
that created the model.                                                                                                         
                                                                                                                                
MR. HEMENWAY pointed out the Department  of Administration already                                                              
has  some  legal  functions  and   certain  labor  relations.  The                                                              
Department  of  Law  is  primarily  a  prosecutorial  function  of                                                              
government  and  placing  adjudication   there  might  create  the                                                              
appearance of conflict.                                                                                                         
                                                                                                                                
MR. STANCLIFF  stated they were trying  to keep the function  in a                                                              
neutral place.                                                                                                                  
                                                                                                                                
SENATOR GUESS asked to whom the chief would report.                                                                             
                                                                                                                                
SIDE B                                                                                                                        
4:30 pm                                                                                                                       
                                                                                                                              
MR. STANCLIFF replied  the Legislature would review  the budget of                                                              
the  new  entity  and  the  attorney   general  would  review  any                                                              
complaints made against the chief  administrative hearing officer.                                                              
                                                                                                                                
                                                                                                                                
SENATOR GUESS asked  if there was a reason that  the chief hearing                                                              
officer wouldn't be approved by the Legislature.                                                                                
                                                                                                                                
MR. STANCLIFF  replied  that although they  opted for  legislative                                                              
approval initially, Tamara Cook advised  it is a gray area and the                                                              
Attorney  General's  Office  determined  it  might  stand  a  weak                                                              
constitutional  test.  To  avoid  controversy,  they  removed  the                                                              
confirmation process.                                                                                                           
                                                                                                                                
                                                                                                                                
SENATOR  GUESS noted that  hearing officers  are partially  exempt                                                              
and asked whether that is a change.                                                                                             
                                                                                                                                
MR. STANCLIFF said, no they're classified.  To make the panel work                                                              
they need  to be partially  exempt or  exempt employees,  but they                                                              
need  some protection.  As a  model,  they chose  the Division  of                                                              
Election employee model, which is statute AS 39.                                                                                
                                                                                                                                
MR. HEMENWAY clarified  that some of the hearing  officers are now                                                              
classified  while others are  partially exempt.  It varies  and an                                                              
ancillary benefit to this is standardization in job function.                                                                   
                                                                                                                                
                                                                                                                                
SENATOR  GUESS asked  what the  difference is  between exempt  and                                                              
partially exempt.                                                                                                               
                                                                                                                                
MR. STANCLIFF replied he didn't have an answer.                                                                                 
                                                                                                                                
MR. HEMENWAY said he was told it is simply pay scale.                                                                           
                                                                                                                                
                                                                                                                                
SENATOR  GUESS expressed  the following  concerns  with regard  to                                                              
future administrations:                                                                                                         
   · The governor would have control over the chief, not the                                                                    
     Legislature                                                                                                              
   · Partially exempt employees serve at the pleasure of the                                                                    
     governor                                                                                                                 
                                                                                                                                
MR. STANCLIFF  replied  they welcome creative  suggestions  and as                                                              
the bill  moves through  the committee process,  they are  open to                                                              
exploring different ideas.                                                                                                      
                                                                                                                                
MR. HEMENWAY  said the  chief hearing officer  is appointed  for a                                                              
fixed  term,  which  gives  some  insulation  from  the  political                                                              
process  while  providing some  accountability.  Although  hearing                                                              
officers are  exempt, they  are entitled  to the same  protections                                                              
any  other  state   employee  would  have.  If  they   are  to  be                                                              
discharged, there must be a hearing  and it must be for cause. The                                                              
main impact of the exempt status is at hiring.                                                                                  
                                                                                                                                
                                                                                                                                
SENATOR  GUESS referred  to page  3, line  13 of  the CS and  said                                                              
that, as a legislator, she would  like to know whether the process                                                              
is working.                                                                                                                     
                                                                                                                                
MR. STANCLIFF  agreed with the point  and said it is  their intent                                                              
that legislators know how well the  process is working and whether                                                              
or not the public is satisfied.                                                                                                 
                                                                                                                                
                                                                                                                                
SENATOR GUESS asked how the chief would prioritize the workload.                                                                
                                                                                                                                
MR.  STANCLIFF   replied  the  chief  would  determine   areas  of                                                              
expertise,  the workloads  and cross  training needs.  One of  the                                                              
major efforts of the job would be  to determine how to efficiently                                                              
work through  the caseload. He admitted  the key to success  is to                                                              
hire the right person for the job the first time around.                                                                        
                                                                                                                                
                                                                                                                                
SENATOR GUESS  pointed out a discrepancy  between page 5,  line 25                                                              
and page 8, line  2 and said it was unclear who  would have choice                                                              
in the matter.  She asked whether an agency would  have the choice                                                              
of having their  complaint go to the central office  and would the                                                              
central office have the choice of taking that complaint.                                                                        
                                                                                                                                
MR. STANCLIFF said they envisioned it that way.                                                                                 
                                                                                                                                
MR. HEMENWAY  explained the  hearings that are  listed on  pages 4                                                              
and 5  would be  mandatory. Others  are at  the discretion  of the                                                              
receiving agency.                                                                                                               
                                                                                                                                
                                                                                                                                
SENATOR  GUESS  expressed  concern  about setting  up  a  separate                                                              
agency  to conduct  hearings and  make rulings  because there  are                                                              
many  ways  the  agency  could say  they  didn't  agree  with  the                                                              
decision.                                                                                                                       
                                                                                                                                
MR. STANCLIFF  said that is addressed  on page 8. They  decided on                                                              
the  decisional  process  whereby  the  decision  of  the  hearing                                                              
officer stands if action isn't taken  within 30 days. Page 8, line                                                              
24 might provide  comfort in that it eliminates  the temptation to                                                              
make an arbitrary reversal of a hearing officers' decision.                                                                     
                                                                                                                                
MR. HEMENWAY said  that from the administration's  policy point of                                                              
view, it's  very important  that the  final decision authority  be                                                              
retained with the final decision  maker. The key is that the final                                                              
decision maker is  the person who is accountable  to the executive                                                              
branch and ultimately to the people.                                                                                            
                                                                                                                                
SENATOR GUESS asked if that means  she doesn't have to worry about                                                              
page 8, line  21 that says the  agency may return the  case to the                                                              
hearing  officer,  take  additional evidence  or  make  additional                                                              
findings.                                                                                                                       
                                                                                                                                
MR. STANCLIFF replied that this is  largely the same language that                                                              
is in existing law under the Administrative Procedures Act.                                                                     
                                                                                                                                
SENATOR GUESS asked  if there is an appeal by  either party before                                                              
going to the court system.                                                                                                      
                                                                                                                                
MR.  STANCLIFF  said  that  under   most  statutes  there  is  the                                                              
opportunity to request reconsideration.                                                                                         
                                                                                                                                
                                                                                                                                
SENATOR GUESS asked  for the difference between  a hearing officer                                                              
and a hearing examiner  and why there was a decision  to group the                                                              
officers and not the examiners.                                                                                                 
                                                                                                                                
MR. STANCLIFF explained that a hearing  examiner resolves disputes                                                              
for an  agency while a hearing  officer is an  adjudicator between                                                              
two parties that are in direct dispute.                                                                                         
                                                                                                                                
MR. HEMENWAY opined the difference  is semantic. When he looked at                                                              
the  classification system  he couldn't  tell  the difference  and                                                              
administrative law judge is another name that is sometimes used.                                                                
                                                                                                                                
                                                                                                                                
SENATOR  GUESS noted  that agency  is a term  used throughout  the                                                              
bill  while   commissioner  is  the   term  used   throughout  the                                                              
testimony. She asked whether they were synonymous.                                                                              
                                                                                                                                
MR. STANCLIFF  replied the buck  with the agency  ultimately stops                                                              
at the commissioner's desk.                                                                                                     
                                                                                                                                
SENATOR  GUESS pointed  out  there is  a  difference between  what                                                              
happens  within  an agency  and  what  happens at  a  commissioner                                                              
level.                                                                                                                          
                                                                                                                                
MR. HEMENWAY said the hearing function  is an agency function. The                                                              
final   decision   maker  is   usually,   but  not   always,   the                                                              
commissioner.   The  terminology   that  is   used  is  to   avoid                                                              
identifying any individual  because it could be  any person within                                                              
the agency who currently has the  final decision making authority.                                                              
                                                                                                                                
CHAIR GARY  STEVENS announced  he wanted to  move the bill  to the                                                              
Judiciary Committee for consideration.                                                                                          
                                                                                                                                
SENATOR COWDERY made  a motion to move CSSB 203(STA)  and attached                                                              
fiscal  notes  from  committee  with  individual  recommendations.                                                              
There being no objection, it was so ordered.                                                                                    
                                                                                                                                
            HB  81-MOTOR VEHICLE EMISSIONS INSPECTION                                                                       
                                                                                                                              
REPRESENTATIVE  KEVIN  MEYER,  bill sponsor,  explained  the  bill                                                              
streamlines  existing  law  by  improving  enforcement,  providing                                                              
consistency  between overseeing departments  and providing  relief                                                              
from the extraneous testing requirements.                                                                                       
                                                                                                                                
The purpose for  increasing the fine from $200 to  as much as $500                                                              
is to improve compliance. The benefit  is that the air stays clean                                                              
and Alaska  continues to  qualify for  federal street and  highway                                                              
money.                                                                                                                          
                                                                                                                                
The bill removes the exemption from  alternative fuel vehicles and                                                              
requires  that  the  registration  period not  extend  beyond  the                                                              
expiration period  on the emission certificate. When  the title of                                                              
a pre-1987 vehicle is transferred,  the emissions test requirement                                                              
is changed  from not  more than a  year old to  not more  than two                                                              
years old, which removes extraneous testing.                                                                                    
                                                                                                                                
He said HB 81 is a consumer protection  bill in that Anchorage and                                                              
Fairbanks residents  can be  assured that  the car they're  buying                                                              
isn't a lemon. Inspection decals  must be displayed on windshields                                                              
and the inspection  record must be on file at DMV.  If a car isn't                                                              
compliant, the dealer  must be able to explain why  it is not. The                                                              
bill  expands enforcement  of the  emission  standards to  include                                                              
DMV, DEC and the municipalities of Anchorage and Fairbanks.                                                                     
                                                                                                                                
SENATOR JOHN  COWDERY asked what  happens if the  inspection decal                                                              
is lost.                                                                                                                        
                                                                                                                                
RON KING, manager  of the Air Non-Point & Mobile  Sources Program,                                                              
said  replacement  decals would  be  available through  the  local                                                              
inspection emissions programs in  both municipalities. The systems                                                              
are computer-linked  so they could verify that the  vehicle was in                                                              
compliance.                                                                                                                     
                                                                                                                                
CHUCK HOSACK, Deputy  Director of the Division  of Motor Vehicles,                                                              
testified via teleconference in support  of HB 81 because it would                                                              
reduce the public's confusion with regard to inspections.                                                                       
                                                                                                                                
SENATOR COWDERY  asked what the process  would be if you  lived in                                                              
Anchorage, but registered your car in Juneau.                                                                                   
                                                                                                                                
MR. HOSACK  explained the residence  address of the  vehicle owner                                                              
is  used as  the basis  for inspection  requirements.  There is  a                                                              
waiver for vehicles  that are used outside the  emission area, but                                                              
once the  vehicle is returned to  the emission inspection  area it                                                              
would require inspection.                                                                                                       
                                                                                                                                
SCOTT LEIST  from Fairbanks  testified via  teleconference  to ask                                                              
whether all  vehicles in the  inspection area would  need emission                                                              
testing and would the tests be required annually.                                                                               
                                                                                                                                
RON KING,  program manager  with the  Department of  Environmental                                                              
Conservation,  replied the  inspection programs  would remain  the                                                              
same.  In Fairbanks,  cars  that  were built  after  1974 must  be                                                              
inspected  and in  Anchorage the  requirement is  that cars  built                                                              
after 1967  must be  inspected. By statute,  the emission  test is                                                              
and would remain a biannual program.                                                                                            
                                                                                                                                
MR. LEIST expressed support for the bill.                                                                                       
                                                                                                                                
JAMES  ARMSTRONG   from  Anchorage   expressed  support   for  the                                                              
legislation.                                                                                                                    
                                                                                                                                
SENATOR GRETCHEN  GUESS made a motion  to move HB 81  and attached                                                              
zero fiscal note  from committee with individual  recommendations.                                                              
There being no objection, it was so ordered.                                                                                    
                                                                                                                                
         SJR 18-CONST. AM: PF APPROPS/INFLATION-PROOFING                                                                    
                                                                                                                              
                                                                                                                                
CHAIR  GARY STEVENS  asked for  a  motion to  adopt the  committee                                                              
substitute (CS) for SJR 18.                                                                                                     
                                                                                                                                
SENATOR GRETCHEN  GUESS made  a motion  to adopt  CSSJR 18  as the                                                              
working document. There being no objection, it was so ordered.                                                                  
                                                                                                                                
ROBERT STORER,  Executive  Director of the  Alaska Permanent  Fund                                                              
Corporation, stated that the Permanent  Fund Board of Trustees has                                                              
concluded  there  is a  need  for  a constitutional  amendment  to                                                              
adjust inflation  proofing on the Alaska Permanent  Fund. Limiting                                                              
the amount of  funds that could be appropriated in  any given year                                                              
would  do that.  They  propose the  methodology  be  changed to  a                                                              
percentage  of  market  value  (POMV),   which  is  consistent  in                                                              
approach with about  70 percent of the endowments  and foundations                                                              
in  the country.  They suggest  limiting the  appropriation to  no                                                              
more than  five percent  of the  five year  moving average  of the                                                              
total fund.                                                                                                                     
                                                                                                                                
He noted  that copies of  a power point  presentation were  in the                                                              
members' bill packets and pointed out five key differences.                                                                     
     · Percentage of Market Value offers constitutional                                                                         
       inflation  proofing  and  protection  of the  entire  fund.                                                              
       Status  quo  statutorily  inflation  proofs just  the  fund                                                              
       principal.                                                                                                               
     · The proposed is a spending limit because more than five                                                                  
       percent   of  the  five   year  moving  average   could  be                                                              
       appropriated.  Status  quo  is  that  the  entire  earnings                                                              
       reserve may be appropriated.                                                                                             
     · POMV improves the stability of the amount that may be                                                                    
       appropriated  in  any given  year.  Current methodology  of                                                              
       using  realized income is  considerably more  volatile than                                                              
       using a POMV.                                                                                                            
     · Five percent POMV is compatible with the diversified                                                                     
       portfolio  the fund  has in these  volatile times.  Current                                                              
       methodology was  established 26 or 27 years  ago when there                                                              
       wasn't a  lot of volatility and people  thought about fixed                                                              
       income securities, cash flow and clipping coupons for                                                                    
       interest payments.                                                                                                       
     · Stability means predictability and is very important from                                                                
       year to year for decision makers. Currently the dividend                                                                 
       is based on a five year realized income and is a moving                                                                  
       average.                                                                                                                 
                                                                                                                                
SENATOR  JOHN  COWDERY  asked  why data  from  the  previous  year                                                              
wouldn't be used.                                                                                                               
                                                                                                                                
BOB BARTHOLOMEW,  Chief Operating Officer of the  Alaska Permanent                                                              
Fund  Corporation, explained  that in  going back  one extra  year                                                              
legislators would know when the session  begins in January exactly                                                              
how  much  would  be  available  for  the  budget.  Forecasts  and                                                              
predictions wouldn't be necessary.                                                                                              
                                                                                                                                
MR. STORER added the increased predictability  works to everyone's                                                              
advantage by allowing for more informed decisions.                                                                              
                                                                                                                                
SENATOR  COWDERY asked  if  they thought  that  dividends were  an                                                              
appropriate use of the fund.                                                                                                    
                                                                                                                                
MR. STORER replied the Board of Trustees  has always felt that how                                                              
the money  is appropriated  is the  providence of the  Legislature                                                              
and they have avoided any discussions  or opinions on the subject.                                                              
                                                                                                                                
MR.  BARTHOLOMEW said  he would  like  to go  through the  changes                                                              
between the original legislation and the CS.                                                                                    
                                                                                                                                
TAPE 03-27, SIDE A                                                                                                            
5:15 pm                                                                                                                       
                                                                                                                              
   · The title speaks to the five percent and that the goal is to                                                               
     protect the fund and its purchasing power from inflation.                                                                  
     The changes are long term not on a year-to-year basis.                                                                     
   · Page 1, line 10 adds subsection b to the constitution.                                                                     
   · Line 11 the word "principal" is removed, which is a                                                                        
     significant policy discussion that the board recommends to                                                                 
     ensure an annual distribution.                                                                                             
   · Lines 13 and 14 deletes that all income from the permanent                                                                 
     fund shall be deposited in the general fund unless otherwise                                                               
     provided. All income will remain in the permanent fund until                                                               
     appropriated subject to the five percent.                                                                                  
   · Page 2 subparagraph b adds a sentence that states how the                                                                  
     permanent fund will be protected going forward.                                                                            
   · Line 7, section 3 is transitional language and clearly a                                                                   
     statement of law that the earnings of the permanent fund                                                                   
     that exist on the date this would pass the vote of the                                                                     
     people are part of the permanent fund.                                                                                     
   · Section 4 says that at the next general election in November                                                               
     2004, the voters of the State of Alaska would decide whether                                                               
     changes would be made to the way distributions from the                                                                    
     permanent fund are determined.                                                                                             
                                                                                                                                
CHAIR  GARY  STEVENS  asked what  happens  to  the  Constitutional                                                              
Budget  Reserve (CBR).  He understood  that  the Earnings  Reserve                                                              
Account (ERA) would disappear into the fund itself.                                                                             
                                                                                                                                
MR. BARTHOLOMEW  explained the  CBR is a  sub-fund of  the general                                                              
fund and  wouldn't be  affected by  the amendment. Currently,  the                                                              
permanent  fund consists  of principal  and  earnings reserve  and                                                              
they are all invested the same and  the CS would merge the two and                                                              
it would be referred to as the fund.                                                                                            
                                                                                                                                
SENATOR FRED DYSON  said he hopes to never again  see the day that                                                              
it's  a   presumptuous   statement  to   say  that  limiting   the                                                              
appropriation to five percent is  inflation proofing, but he would                                                              
like to hear a comment on that.                                                                                                 
                                                                                                                                
MR. STORER said the board spent a  great deal of time studying the                                                              
issue and  has determined that limiting  the draw to  five percent                                                              
would be  the high  end to  achieve their  goal. There are  times,                                                              
like  now, that  drawing five  percent you  wouldn't be  inflation                                                              
proofing, but then there are other  times that you would earn well                                                              
in excess of that. The key is that  the five percent limit creates                                                              
discipline  in great years.  Seventy six  years of data  indicates                                                              
that the five percent is achievable over time.                                                                                  
                                                                                                                                
SENATOR  DYSON asked  how the board  plans to  educate the  voting                                                              
public.                                                                                                                         
                                                                                                                                
MR. STORER  acknowledged  their plans aren't  fully developed  but                                                              
the board  is sensitive  to the  issue in  statute that  prohibits                                                              
using corporate  or fund assets  for political purposes.  However,                                                              
they believe it  is within their providence to  educate the public                                                              
when they are publicly speaking about  the fund performance, which                                                              
they do on a regular basis.                                                                                                     
                                                                                                                                
SENATOR DYSON asked whether it would  be legal to do mass mailings                                                              
to voters  or to place  ads on TV to  inform voters of  the option                                                              
before  them  when  they  vote  on   the  proposed  constitutional                                                              
amendment.                                                                                                                      
                                                                                                                                
MR. STORER said it is his personal  opinion that they could not do                                                              
mass mailings or  anything that would create that  type of expense                                                              
to the fund.                                                                                                                    
                                                                                                                                
SENATOR DYSON expressed concern that  some in the capitol building                                                              
are pushing for  a constitutional amendment to  place the dividend                                                              
in  the  constitution.   He  hopes  that  those   people  wouldn't                                                              
characterize  SJR 18  as being counter  to the  protection  of the                                                              
dividend.                                                                                                                       
                                                                                                                                
MR.  STORER  replied   they  believe  there  is   some  reasonable                                                              
probability that  placing the dividend  in the constitution  would                                                              
jeopardize the tax-exempt status  of the fund. While the board has                                                              
always held that  how the money is appropriated  is the providence                                                              
of  the Legislature,  they  would  probably  stand mute  were  the                                                              
dividend to be placed in the constitution.                                                                                      
                                                                                                                                
MR. BARTHOLOMEW said two points are  critically important when you                                                              
educate the public:                                                                                                             
          · If there isn't leadership coming together from the                                                                  
            House, the Senate and the Executive Office, it will                                                                 
            be very difficult to get a vote from the public.                                                                    
          · Even though the corporation and the board are silent                                                                
            on how to use the funds, it is important that the                                                                   
            Legislature go on record with regard to how they                                                                    
            want to use money.                                                                                                  
                                                                                                                                
SENATOR JOHN  COWDERY asked  what size  dividend might  be assured                                                              
today were the plan in place six years previous.                                                                                
                                                                                                                                
MR. STORER  said he couldn't  give a  specific number, but  he was                                                              
comfortable  saying it would  encompass both  the bull  market and                                                              
the bear market and would smooth out the highs and lows.                                                                        
                                                                                                                                
SENATOR COWDERY  asked if the dividend  might not be  between $800                                                              
and $1,000.                                                                                                                     
                                                                                                                                
MR. STORER said the dividend would  probably be between $1,000 and                                                              
$1,100 if the fiscal year ended that  evening because the earnings                                                              
reserve is currently about $1.5 million.                                                                                        
                                                                                                                                
Considering  the last  five year  average of  the dividend,  using                                                              
half  of the  five  percent for  dividend  purposes  would give  a                                                              
$1,000 to $1,100 dividend.                                                                                                      
                                                                                                                                
SENATOR COWDERY remarked,  "That would make a lot  of people happy                                                              
and that was free advertising."                                                                                                 
                                                                                                                                
SENATOR DYSON  made a  motion to move  CSSJR 18(STA)  and attached                                                              
fiscal note from committee with individual recommendations.                                                                     
                                                                                                                                
There being no further business to come before the committee,                                                                   
Chair Gary Stevens adjourned the meeting at 5:40 pm.                                                                            

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