ALASKA STATE LEGISLATURE  SENATE STATE AFFAIRS STANDING COMMITTEE  January 30, 2018 3:31 p.m. MEMBERS PRESENT Senator Kevin Meyer, Chair Senator David Wilson Senator Cathy Giessel Senator Dennis Egan MEMBERS ABSENT  Senator John Coghill COMMITTEE CALENDAR  SENATE BILL NO. 8 "An Act allowing federally recognized tribal governments to receive contributions from permanent fund dividends." - MOVED CSSB 8(STA) OUT OF COMMITTEE SENATE BILL NO. 154 "An Act relating to contributions from permanent fund dividends to the general fund." - MOVED SB 154 OUT OF COMMITTEE SENATE BILL NO. 130 "An Act relating to a vote of the people before a broad-based individual income tax or statewide sales tax takes effect." - HEARD & HELD PREVIOUS COMMITTEE ACTION  BILL: SB 8 SHORT TITLE: PFD CONTRIBUTIONS TO TRIBAL GOVERNMENTS SPONSOR(s): SENATOR(s) STEVENS 01/18/17 (S) PREFILE RELEASED 1/9/17 01/18/17 (S) READ THE FIRST TIME - REFERRALS 01/18/17 (S) STA, FIN 03/23/17 (S) STA AT 3:30 PM BUTROVICH 205 03/23/17 (S) Bill Hearing Postponed to 3/28/17 03/28/17 (S) STA AT 3:30 PM BUTROVICH 205 03/28/17 (S) Heard & Held 03/28/17 (S) MINUTE(STA) 04/06/17 (S) STA AT 3:30 PM BUTROVICH 205 04/06/17 (S) -- MEETING CANCELED -- 04/11/17 (S) STA AT 3:30 PM BUTROVICH 205 04/11/17 (S) -- MEETING CANCELED -- 01/30/18 (S) STA AT 3:30 PM BUTROVICH 205 BILL: SB 154 SHORT TITLE: PFD CONTRIBUTIONS TO GENERAL FUND SPONSOR(s): SENATOR(s) WILSON 01/24/18 (S) READ THE FIRST TIME - REFERRALS 01/24/18 (S) STA, FIN 01/30/18 (S) STA AT 3:30 PM BUTROVICH 205 BILL: SB 130 SHORT TITLE: VOTER APPROVAL FOR NEW TAXES SPONSOR(s): SENATOR(s) MEYER 01/16/18 (S) PREFILE RELEASED 1/8/18 01/16/18 (S) READ THE FIRST TIME - REFERRALS 01/16/18 (S) STA, FIN 01/30/18 (S) STA AT 3:30 PM BUTROVICH 205 WITNESS REGISTER DOUG LETCH, Staff Senator Stevens Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Provided an overview of SB 8. NINA KEMPPEL, President & CEO The Alaska Community Foundation Anchorage, Alaska POSITION STATEMENT: Testified in support of SB 8. SARA RACE, Director Permanent Fund Dividend Division Alaska Department of Revenue Juneau, Alaska POSITION STATEMENT: Addressed the division's fiscal note for SB 8. GARY ZEPP, Staff Senator Wilson Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Provided an overview of SB 154. SARA RACE, Director Permanent Fund Dividend Division Alaska Department of Revenue Juneau, Alaska POSITION STATEMENT: Addressed potential federal tax implications for SB 154. NINA KEMPPEL, President & CEO The Alaska Community Foundation Anchorage, Alaska POSITION STATEMENT: Addressed concerns regarding SB 154. PAMELA LEARY, Director Treasury Division Alaska Department of Revenue Juneau, Alaska POSITION STATEMENT: Addressed the impact on the state treasury from SB 154. CHRISTINE MARASIGAN, Staff Senator Meyer Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Provided an overview of SB 130. EMILY NAUMAN, Attorney Legislative Legal Services Legislative Affairs Agency Juneau, Alaska POSITION STATEMENT: Explained why SB 130 is possibly unconstitutional. BRIAN JACKSON, Elections Program Manager Alaska Division of Elections Juneau, Alaska POSITION STATEMENT: Commented on SB 130. ACTION NARRATIVE  3:31:11 PM CHAIR KEVIN MEYER called the Senate State Affairs Standing Committee meeting to order at 3:31 p.m. Present at the call to order were Senators Giessel, Wilson, Egan, and Chair Meyer. SB 8-PFD CONTRIBUTIONS TO TRIBAL GOVERNMENTS   3:32:14 PM CHAIR MEYER announced the consideration of Senate Bill 8 (SB 8). He noted that at a previous hearing, Senator Wilson raised a concern pertaining to prohibition of a guardian contributing a child's Permanent Fund Dividend (PFD) to a tribal government. 3:32:59 PM DOUG LETCH, Staff, Senator Stevens, Alaska State Legislature, Juneau, Alaska, said SB 8 is straight forward legislation to allow PFD contributions to tribal native nonprofit organizations. He noted that an amendment will be offered that addresses Senator Wilson's question. He disclosed that Senator Stevens supports the proposed amendment by Senator Wilson. He noted that Melissa Borton, Tribal Administrator for the Native Village of Afognak intends to testify from Kodiak. He pointed out that the Native Village of Afognak was one of the tribal organizations in Kodiak that approached Senator Stevens about accessing the PFD's Pick.Click.Give program. 3:35:11 PM CHAIR MEYER opened public testimony. 3:36:04 PM NINA KEMPPEL, President & CEO, The Alaska Community Foundation (ACF), Anchorage, Alaska, testified in support of SB 8. She explained that ACF manages the Pick.Click.Give program in concert with other partners including the Rasmuson Foundation and The Foraker Group. She said ACF has no inherent concerns regarding SB 8. She noted that there was an Internal Revenue Service (IRS) ruling that allows federally recognized tribal organizations to receive charitable donations. 3:37:24 PM SARA RACE, Director, Permanent Fund Dividend Division, Alaska Department of Revenue, Juneau, Alaska, addressed the division's fiscal note as to how SB 8 could impact the PFD Division and noted that SB 8 is in line with the other participating organizations in the Pick.Click.Give program where 7 percent of the contributions are collected by the PFD Division to cover administrative costs. CHAIR MEYER asked how the division arrived at the dollar amount in their fiscal note. MS. RACE explained that the division has a contract with United Way for the Pick.Click.Give program's application process. She detailed that United Way provided their billing input regarding programming hours for changes required for SB 8. 3:39:43 PM CHAIR MEYER closed public testimony. 3:39:56 PM SENATOR WILSON moved to adopt Amendment 1, labeled 30- LS0176\A.2. A M E N D M E N T 1 OFFERED IN THE SENATE BY SENATOR WILSON Page 4, following line 28: Insert a new bill section to read: "* Sec. 7. AS 43.23.062 is amended by adding a new subsection to read: (o) A person who claims a dividend on behalf of an unemancipated minor under AS 43.23.005(c) when the minor is the subject of an adoption or guardianship proceeding pending in a tribal court may not elect to make a contribution from the minor's dividend to a federally recognized tribal government under (a) of this section." SENATOR WILSON explained that the amendment inserts a new bill section under page 4, [following line 28]. He said the amendment seeks to protect the unemancipated minors PFD when the minor is the subject of an adoption or guardianship proceeding in a tribal court. This is like AS 47.10.15 for a PFD under AS 43.23.15 where the Office of Children's Services (OCS) puts a minor's PFD into a trust until the minor turns 21 or reaches 18 and is emancipated. He summarized that SB 8 would add a layer of protection to make sure a child's PFD is not used to help fund tribal governments. MR. LETCH stated that Senator Stevens supports Senator Wilson's amendment because it clarifies the process. CHAIR MEYER announced that seeing no objection, Amendment 1 is adopted. 3:42:02 PM SENATOR GIESSEL moved to report SB 8, [CSSB 8(STA)], version 30- LS0176\A as amended from committee with individual recommendations and attached fiscal note. 3:42:27 PM CHAIR MEYER announced that being no objection, the motion carried. 3:42:30 PM At ease SB 154-PFD CONTRIBUTIONS TO GENERAL FUND  3:44:42 PM CHAIR MEYER called the committee back to order and announced the consideration of SB 154. 3:45:06 PM SENATOR WILSON, Alaska State Legislature, bill sponsor, explained that SB 154 would allow Alaskans to donate all or a portion of their PFD directly to the state's general fund. He said the bill would provide those Alaskans who would like to donate to the state's general fund a method and an opportunity to do so through the Pick.Click.Give program. He explained that the Alaska Department of Administration has said the PFD donation process to the state would be tax exempt and could be used to provide tax relief, reduce the rates, and allow to "Only tax the other portion of their items." He disclosed that any other cash donation to the general fund would be exempt from the 7-percent coordination or would not be required to pay the $250 fee. He added that the "children protection piece" for the PFD already exists in statute. 3:46:53 PM GARY ZEPP, Staff, Senator Wilson, Alaska State Legislature, Juneau, Alaska, provided a sectional analysis for SB 154 as follows: Section 1:  Amends AS 43.23.062(a) by adding to the general fund and "the general fund" to allow contribution from the electronic Alaska Permanent Fund dividend to the state general fund. Section 2:  Amends AS 43.23.062(b) to add "general fund" to the list of organizations, community foundations or charitable organizations eligible to be added to the contributions list. Section 3:  Amends AS 43.23.062(m) by adding "general fund" or to the list of organizations that do not have a coordination fee withheld. MR. ZEPP noted that a zero fiscal note was submitted by Centralized Administrative Services-Finance Division, Department of Administration. He detailed the second fiscal note from the Permanent Fund Dividend Division, Taxation and Treasury, Department of Revenue as follows: • FY2019: $20300 for programming to establish and administer new process. • FY2020 and beyond: $10000 annually to administer program. 3:51:15 PM SENATOR WILSON emphasized that the intent of the legislation is not to politicize the Pick.Click.Give program. CHAIR MEYER asked if the bill should have a fiscal note showing some revenue to the general fund. SENATOR WILSON explained that the statute does not allow donations to be used to help offset the cost of the program. He said his office has met with the Department of Revenue to look at ways to offset the ongoing cost. He noted that an amendment could be introduced where a percentage fee from the first donation could be used to offset some of the reoccurring cost. CHAIR MEYER assumed that somebody could write a $1,500 check to the State of Alaska if they wanted too. SENATOR WILSON answered correct. CHAIR MEYER asked if the legislation would save the taxes by having it taken off the PFD. SENATOR WILSON specified that the intent was to ease the process for Alaskans. He added that the transaction would also be a tax deduction. 3:53:13 PM MR. ZEPP noted that Senator Wilson's office will work with The Alaska Community Foundation to address potential concerns regarding donor competition and work on messaging to make sure folks understand the difference of their donations. SENATOR GIESSEL pointed out that a PFD must be declared on an individual's income report to the IRS. She asked if donating directly to the general fund would bypass IRS notification. MR. ZEPP emphasized that he is not a tax consultant but opined that donating a PFD to the general fund would bypass IRS notification. SENATOR GIESSEL replied that she was surprised by Mr. Zepp's answer. MR. ZEPP disclosed that the executive branch classified the donation as charitable. SENATOR GIESSEL pointed out that the proper definition is the donation is tax deductible but nevertheless income that an individual will be taxed on. MR. ZEPP answered that he believed so. 3:54:53 PM SARA RACE, Director, Permanent Fund Dividend Division, Alaska Department of Revenue, Juneau, Alaska, noted that she was not a tax professional but opined that once a dividend is issued it becomes income; however, a contribution back to the state can be used as an itemized deduction just like a contribution to a nonprofit. 3:55:23 PM CHAIR MEYER opened public testimony. SENATOR WILSON asked what happens if an individual declines their PFD. MS. RACE assumed that an individual would not apply for a voluntary program; however, she noted that there is an option available for somebody that decided to sign over their dividend or write a check back to the state and the funds would be deposited into the general fund. She disclosed that there are a couple of individuals every year that call the Department of Revenue and go through the process of returning their PFD. CHAIR MEYER asked Ms. Race if she had any other comments on the division's fiscal note. MS. RACE explained that the administrative costs taken on from SB 154 ends up being different because there is a statute that says that the department cannot use operating funds from the dividend fund to administer the Pick.Click.Give program, so without the 7-percent fee being taken off for an application fee that is why a fiscal note was included. 3:57:24 PM NINA KEMPPEL, President & CEO, The Alaska Community Foundation, Anchorage, Alaska, noted the success of the Pick.Click.Give program and thanked the Legislature for developing and continually refining the program. She disclosed that over $20 million has been raised in charitable giving for over 700 charitable organizations. She remarked that the Pick.Click.Give program faces challenges due to the uncertainty around the permanent fund and the state's near-term finances. She disclosed that the program finds attracting new donors to be harder. She explained that the original intent of the Pick.Click.Give program was to be a tool for the nonprofit sector to be able to increase their unrestricted charitable donations. She added that the program was also intended to assist charitable organizations in cultivating new and existing relationships with their donors as well as increasing the impact of Alaska's nonprofit sector. 4:00:08 PM MS. KEMPPEL said The Alaska Community Foundation sees the merits of SB 154 but noted the foundation's concerns with the legislation where the charitable intention of Pick.Click.Give will be "watering down" as well as causing confusion about what is a charitable organization by bringing in a new element into the program. She opined that the legislation opens the door to anyone joining the program outside of charitable organizations. She said the foundation's final concern pertains to the general fund not having to contribute towards the program's 7-percent administrative fee and that may lead to a public misperception regarding the program's low-overhead-number administrative fee. SENATOR GIESSEL asked Ms. Kemppel if charitable organizations are defined as 501(c)(3). MS. KEMPPEL replied yes, except for some educational organizations such as the university. 4:02:47 PM PAMELA LEARY, Director, Treasury Division, Alaska Department of Revenue, Juneau, Alaska, said the only impact from the bill in terms of processes is that there will be more money in the general fund to go towards the state's operating cost. SENATOR GIESSEL asked how many people routinely give their PFD back, how much revenue is generated, and how many more might return their PFD if SB 154 is passed. MS. LEARY replied that she did not know. She noted that the bill's intent will provide a process should an individual decide to return their PFD. CHAIR MEYER asked if a person could write a check to the "treasury or revenue" if a person wanted to give $10000 to the state government because Alaska does not have an income tax. 4:04:39 PM MS. LEARY answered yes. She explained that an individual could write a check to the "State of Alaska." She noted that the money is sent to the general fund. CHAIR MEYER asked if an individual can request that the money specifically go to education. MS. LEARY replied that she is not sure the money can go anywhere other than the general fund. 4:06:34 PM CHAIR MEYER closed public testimony. SENATOR WILSON noted that he would like to offer an amendment either in the Senate State Affairs Committee or the next committee of referral. He explained that his intent is to lower the fiscal note's ongoing costs and figure out ways to make sure the process is easy without burdening additional charitable giving. CHAIR MEYER noted that Senate Finance is the next committee of referral, an appropriate venue for Senator Wilson to offer his amendment. He remarked that SB 154 is a good mechanism for those that want to give their PFD back to the state. 4:08:11 PM SENATOR GIESSEL moved to report SB 154, version 30-LS0081\D from committee with individual recommendations and attached fiscal notes. 4:08:21 PM CHAIR MEYER said there being no objection, the motion carried. 4:08:35 PM At ease SB 130-VOTER APPROVAL FOR NEW TAXES  4:12:49 PM CHAIR MEYER announced the consideration of SB 130. He disclosed that he is the sponsor of the bill. 4:13:18 PM CHRISTINE MARASIGAN, Staff, Senator Meyer, Alaska State Legislature, Juneau, Alaska, said the intent of SB 130 is to require a vote of the people before a broad-based-individual- income tax or statewide sales tax takes effect. MS. MARASIGAN disclosed that there are four sections in the bill and provided an analysis as follows: Section 1  The section would be amended to include tax levied under AS 43.98.020. The section makes a vote on taxes subject to the same rules and limitations as ballot propositions when it comes to contributions. Section 2  Would amend AS 15.15.030 to direct the Division of Elections' director to place a question on the election ballot; this is essentially the kind of language used when requiring an advisory vote. Section 3 Amends AS 15.80.010(33) to include taxes; in that section there are a series of definitions and there are about 45 definitions in that section that the word "taxes" is included under questions. Section 4 Adds a new section to AS 43.98 to include Article 1A, which is the language requiring any bill that the legislature passes levying a broad-based individual income tax or statewide sales tax or both to be ratified by the people, and it specifies the statewide election ballot in which the question on the bill levying the tax is asked either a yes or no question; essentially, it just requires that the legislation that you would pass to levy a tax has to include the instructions that requires the vote of the people upon passage, so that would be written into whatever vehicle used to tax. MS. MARASIGAN summarized that SB 130 would put into statute that any legislation levying a broad-based tax be ratified by a vote of the people. 4:16:09 PM She said Emily Nauman, legal drafter for the bill from Legislative Legal Services, will address the committee. He noted that Ms. Nauman also wrote a memo that explained why the legislation is unconstitutional. She pointed out that while Ms. Nauman raised the case for the legislation to be unconstitutional, there are many ways that governments have weighted the opinion of its people on taxes. She revealed that the Anchorage municipality uses an advisory vote on any tax increases, or the proposition process that may alter or do away with a tax. She said according to a very cursory survey by Legislative Research, Californians have voted on 10 statewide sales-tax-related ballot measures since 1932: 4 defeated and 6 approved. Colorado has the Taxpayer Bill of Rights (TABOR); they wrote that into their state constitution in 1992 and it had a simple premise, if lawmakers want to raise taxes or issue a debt, they need to ask the voters for permission. She pointed out that Washington state voters have been asked on 11 separate occasions to adopt a state personal income tax or corporate income tax, but the first vote in 1932 was the only one that was successful. MS. MARASIGAN noted that not all taxes are voted down. She disclosed that 22 states approved ballot measures in the November 8 election that would provide more than $201 billion in funding extension and new revenue for state and local transportation projects. She opined that the November 8 vote for funding ballot measures indicates that there is an appetite for voting in taxes that people want to see, particularly for transportation and roads. 4:18:15 PM MS. MARASIGAN explained that the intention is to explore the idea that the vote of the people should take place to enact new income or sales taxes. She noted that voters are being asked to approve budget timelines, spending caps, and per diem funding spending. She asserted that having the Legislature consult the people who "foot the bill" makes sense. SENATOR EGAN asked why the committee is looking at the bill that Legislative Legal Services is saying is unconstitutional. CHAIR MEYER replied that Senator Egan's question is a good question and noted that Legislative Legal Services will address the committee during the meeting. SENATOR GIESSEL asked Senator Egan to verify that Juneau votes on sales taxes every five years. She recalled that Juneau's citizens voted on a 1.5 percent sales tax. SENATOR EGAN concurred with Senator Giessel and specified that the tax is a little above 1.5 percent. He detailed that Juneau has a permanent tax and citizens vote whether to extend the sales tax. CHAIR MEYER noted that Alaska's citizens vote on bonds all of the time. He asked Ms. Nauman from Legislative Legal Services to address the committee and comment on her memo concerning the bill. 4:21:01 PM EMILY NAUMAN, Attorney, Legislative Legal Services, Legislative Affairs Agency, Juneau, Alaska, confirmed that she believes SB 130 is very likely if not certainly going to be found unconstitutional by the Alaska Supreme Court. She referenced previous discussions about other types of jurisdictions, other states and some of Alaska's municipalities; however, she pointed out that they all have different voting rules. MS. NAUMAN specified that her concern with SB 130 is that a state law is being enacted under the provision of Alaska's constitution that binds the Legislature to act and pass bills in a certain way. She stated that one of her main concerns, although not in the constitution outright, is that the U.S. Supreme Court has found for anytime that a legislature attempts to bind a future legislature; in other words, SB 130 has the effect of putting a requirement on all subsequent legislatures for any tax that they want to pass. MS. NAUMAN said Legislative Legal Services also has a concern under the constitution, Article IX, Section 1, that the power of taxation cannot be delegated; this is generally recognized as a legislative power. She explained that her concern of leaving it up to the people whether to enact a tax is a delegation of the Legislature's power to tax and is a direct contradiction to Article IX, Section 1. She added that another concern is about using the proposed structure for initiatives and referendums, something that is a little more of a "muddy issue." She pointed out that the state's constitution contemplates an initiative and referendum as the two sorts of methods to bring a binding vote to the people about something that is going to become law or a law that is repealed. She detailed that the initiative and the referendum are really fleshed out in the state's constitution; however, the state constitution does not really have any space for the kind of vote that originates from the Legislature. She said her final concern is about the actual enactment. She pointed out that there are several sections in the constitution that talk about how and when a law or bill becomes a law; specifically, Article II, Sections 14, and 16-18. She opined that there are going to be some timing issues related to enactment; for instance, normally when a bill becomes law is 90 days after approval by the governor or a veto is overwritten by the Legislature, and that language is in the constitution. She summarized as follows: If we pass a tax bill that becomes law, but is delayed in effect, that sort of structure really isn't contemplated in the constitution and I have some concerns about how that would be integrated as well. 4:24:41 PM CHAIR MEYER asked how Colorado was able to get around the issue with the U.S. Supreme Court. MS. NAUMAN replied that Colorado passed a constitutional amendment. She explained that the state through the constitution can make the Legislature comply with whatever requirements they would like. She pointed out that one way to make SB 130 legal would be to rephrase it as a constitutional amendment. She conceded that there are limitations or extra steps that are required before a constitutional amendment resolution can pass; however, she noted that she would not have a problem with putting the requirement in the constitution for a vote of the people before a broad-based individual income tax or statewide sales tax takes effect. CHAIR MEYER asked if there would be a problem with an advisory vote. MS. NAUMAN replied that advisory votes are non-binding; however, she said she would still worry about the structure regarding how the Legislature would get the advisory vote on the ballot, but the issues could be worked out. She said one idea is to have an advisory vote that requires the vote to take place before a tax bill's effective date; however, that language would have to be inserted into every single tax bill that passed. 4:26:52 PM SENATOR EGAN pointed out that if a future legislature must pass a tax, they could ignore or change the proposed legislation. He asked Chair Meyer why he did not consider proposing a constitutional amendment. CHAIR MEYER concurred with Senator Egan and noted that he may consider the option. He explained that his intent was to bring the bill before the committee to address concerns. He said his intent is not to move SB 130 out of committee until revisions are made and the legislation meets Legislative Legal Services' standards. SENATOR GIESSEL noted that Ms. Nauman cited Article IX regarding voter approval of tax and specified as follows: The power of taxation shall never be surrendered; this power shall not be suspended or contracted away, except as provided in this article. SENATOR GIESSEL asked to verify that if SB 130 is changed to an advisory vote that Article IX, Section 1 would have to be repealed. 4:28:41 PM MS. NAUMAN answered no. She explained that the reason is an advisory vote has no effect. She said the issue in front of the committee is SB 130 would have the effect of leaving whether a tax is enacted or not that was made by the people's vote rather than by the Legislature. She summarized that because an advisory vote has no effect, the advisory vote only informs the Legislature and the Legislature would still be enacting the tax. SENATOR GIESSEL asked if Article IX, Section 1 in the state constitution would have to be repealed if the bill was amended to constitutionally allow citizens to determine taxation. MS. NAUMAN answered no due to the language that said, "Except as provided in this article." She believed that a constitutional amendment would be placed into Article IX. CHAIR MEYER asked her to verify that a referendum to repeal an income or sales tax passed by the legislative body is okay. MS. NAUMAN answered correct. She explained that the state constitution has the structure and place for a referendum and that is the reason why a referendum is constitutional as opposed to the structure SB 130 is exploring. CHAIR MEYER asked a representative from the Alaska Division of Elections to address the committee and inquired if the division has any input or concerns about the bill. 4:32:04 PM BRIAN JACKSON, Elections Program Manager, Alaska Division of Elections, Juneau, Alaska, replied that SB 130 is straight forward with the understanding that the division will have to reanalyze the bill after it is reworked. He pointed out that the legislation would place a question to the voters on a ballot that would also force the division to put the information into the official election pamphlet whereby the division would require enough time to obtain information for translation into Alaska Native languages. SENATOR WILSON asked if there would be an additional cost between an advisory vote versus going to the general voting process. MR. JACKSON replied that he did not know. 4:34:25 PM CHAIR MEYER closed public testimony. 4:34:33 PM CHAIR MEYER held SB 130 in committee. 4:35:18 PM There being no further business to come before the committee, Chair Meyer adjourned the Senate State Affairs Standing Committee at 4:35 p.m.