SB 147: "An Act relating to nongovernmental activities of state departments; and providing for an effective date."
00 SENATE BILL NO. 147 01 "An Act relating to nongovernmental activities of state departments; and providing for 02 an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 44 is amended by adding a new chapter to read: 05 Chapter 64. Inventory and Procurement of Nongovernmental Activities. 06 Sec. 44.64.010. Annual list required. (a) Each department shall submit to 07 the office of management and budget each fiscal year a list of the activities performed 08 by the department's employees that, in the judgment of the commissioner of the 09 department, are not inherently governmental activities. 10 (b) The director of the office of management and budget shall consult with a 11 department when the department is preparing the list under (a) of this section and shall 12 review the list. 13 (c) In this section, "inherently governmental activity" 14 (1) means an activity that is required by the state constitution or that is
01 so closely related to the public interest that it requires performance by state 02 government employees; the term includes an activity that 03 (A) requires either the exercise of discretion in applying state 04 governmental authority or the making of value judgments, including judgments 05 relating to monetary transactions and entitlements, and making decisions for 06 the state government; or 07 (B) involves the interpretation or execution of the laws of the 08 state 09 (i) to bind the state to take or not to take an action by 10 contract, policy, regulation, authorization, order, or another method; 11 (ii) to determine, protect, or advance state economic, 12 political, territorial, property, or other interests by military action, 13 intergovernmental agreements, civil judicial proceedings, criminal 14 judicial proceedings, contract management, or another method; 15 (iii) that will significantly affect the life, liberty, or 16 property of private persons; 17 (iv) to commission, appoint, direct, or control officers 18 or employees of the state; or 19 (v) that will exert ultimate control over the acquisition, 20 use, or disposition of the real or personal property, whether tangible or 21 intangible, of the state, including the collection, control, or 22 disbursement of appropriated or other state money; 23 (2) does not include 24 (A) gathering information for or providing advice, opinions, 25 recommendations, or ideas to state government employees; or 26 (B) an activity that is primarily ministerial and internal in 27 nature, including building security, mail operations, facilities operations, 28 facilities maintenance, warehouse operations, motor vehicle fleet management 29 operations, routine electrical services, or routine mechanical services. 30 Sec. 44.64.020. Description of listed activity. The description of a listed 31 activity must include
01 (1) the fiscal year when the activity first appeared on a list; 02 (2) the number of full-time employees that are needed to perform the 03 activity; 04 (3) the name of a department employee who is responsible for the 05 activity and from whom additional information about the activity may be obtained. 06 Sec. 44.64.030. Transmittal and publication of list. (a) The commissioner 07 of each department shall promptly transmit a copy of the list prepared by the 08 department under AS 44.64.010 to the legislature and make the list available to the 09 public. 10 (b) For each list prepared by a department, the director of the office of 11 management and budget shall promptly publish in the Alaska Administrative Journal a 12 notice that the list is available to the public. 13 (c) If, as a result of a challenge or an appeal under AS 44.64.040, a department 14 changes a list after a notice is published under (b) of this section, the state department 15 that prepared the list shall promptly 16 (1) transmit a copy of the change to the legislature and make the 17 change available to the public; and 18 (2) publish in the Alaska Administrative Journal a notice that the 19 change is available to the public. 20 Sec. 44.64.040. Challenge and appeal. (a) An interested person may 21 challenge the inclusion or omission of an activity on a list by filing with the 22 department that prepared the list a written notice stating the person's challenge and the 23 reasons for the challenge. A challenge must be filed with the department within 30 24 days after publication of the notice under AS 44.64.030(b) or (c)(2), as applicable. 25 (b) Within 28 days after a department receives notice of a challenge under (a) 26 of this section, a department employee appointed by the commissioner of the 27 department shall decide whether to reject or uphold the challenge and shall transmit a 28 notice of the decision to the person who filed the notice. The notice must include the 29 decision, an explanation of the reasons for the decision, and an explanation of the 30 party's right to appeal under (c) of this section. 31 (c) An interested person may appeal an adverse decision made by a
01 department under (b) of this section. The appeal must be filed with the department 02 within 10 days after the person receives the notice of the decision. 03 (d) Within 10 days after a department receives an appeal of a decision under 04 (c) of this section, the commissioner of the department shall decide the appeal and 05 shall transmit to the person who filed the appeal a notice of the decision on the appeal, 06 including an explanation of the rationale for the decision. The person who filed the 07 appeal may appeal an adverse decision to the superior court. 08 (e) A challenge under this section, an appeal to a department under this 09 section, and an appeal to the superior court under this section are not subject to 10 AS 44.62 (Administrative Procedure Act). 11 Sec. 44.64.050. Procurement determination. For the purpose of determining 12 whether to contract with a private person to perform a listed activity, when a 13 department compares its costs of performing the activity with the costs of contracting 14 with a private person to perform the activity, the department shall consider all of the 15 realistic and fair costs of the activity. In this section, "costs" includes the quality 16 assurance costs, the cost to technically monitor performance of the activity, liability 17 insurance costs, the cost of employee retirement and disability benefits, and other 18 overhead costs. 19 Sec. 44.64.090. Definitions. In this chapter, unless the context indicates 20 otherwise, 21 (1) "department" means a department listed under AS 44.17.005, but 22 does not include a public corporation located in a department; 23 (2) "interested person" means 24 (A) a private person who 25 (i) is an actual or prospective bidder or offeror for a 26 contract to perform the activity; and 27 (ii) has a direct economic interest in performing the 28 activity that would be adversely affected by a determination not to 29 procure the performance of the activity from a private person; 30 (B) a representative of a business association or professional 31 association, if the association includes as members private persons referred to
01 in (A) of this paragraph; 02 (C) an employee of an organization within the department if the 03 employee or the organization is an actual or prospective performer of the 04 activity; or 05 (D) the head of a labor organization that includes within its 06 membership employees referred to in (C) of this paragraph; in this 07 subparagraph, "labor organization" means a nonprofit organization established 08 wholly or partly to bargain collectively or deal with employers, including the 09 state, concerning grievances, terms, or conditions of employment or other 10 mutual aid or protection in connection with employees; 11 (3) "list" means a list prepared under AS 44.64.010; 12 (4) "listed activity" means an activity included on a list prepared under 13 AS 44.64.010, including an activity added after a challenge or an appeal under 14 AS 44.64.040. 15 * Sec. 2. This Act takes effect immediately under AS 01.10.070(c).