Legislature(2009 - 2010)BUTROVICH 205
02/04/2010 01:00 PM Senate TRANSPORTATION
| Audio | Topic |
|---|---|
| Start | |
| HB114 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 114 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 114-USE STATE TRANS FACILITY FOR DISASTER AID
1:02:00 PM
CHAIR KOOKESH announced the consideration of HB 114. [CSHB
114(TRA) AM was before the committee.]
1:03:40 PM
SENATOR MENARD and SENATOR DAVIS joined the committee.
REPRESENTATIVE RAMRAS, Alaska State Legislature, sponsor of HB
114, described HB 114 as a compassionate aid bill to allow this
and future governors to use state transportation assets to
deliver aid to Alaska communities in times of eminent disaster
without having to first declare a disaster.
REPRESENTATIVE RAMRAS explained that he introduced HB 114 in
early 2009 after struggling to access state transportation
assets to deliver 40,000 pounds of emergency food and $25,000 in
cash to villages in Western Alaska that were facing economic
disaster. This proved to be very difficult. State transportation
assets could not be used to move the supplies and much of the
money that had been raised had to be used for transportation.
HB 114 is forward looking; it seeks to provide a path for this
and future governors to be able to find a course of action that
doesn't require a declaration of emergency, Representative
Ramras stated.
1:07:12 PM
SENATOR MEYER questioned why the fiscal notes are zero rather
than indeterminate, since the bill proposes to use state
transportation assets.
REPRESENTATIVE RAMRAS cited a transcript of a statement by Mr.
McHugh when he was director of communications for Department of
Military and Veterans Affairs (DMVA).
The language gives the DMVA emphasis and directions on
how to proceed when the department responds to
emergencies. He explained that the change would not
impact the DMVA's operating budget. He offered that
the disaster relief fund is funded by the Legislature.
When the fund reaches a certain threshold cost, which
he said is between $500,000 and $1 million depending
on the situation, the DMVA requests additional funds
to accomplish the mission and rescue Alaskans.
1:09:23 PM
SENATOR PASKVAN said he believes that the bill in well meaning,
but he questions why it includes reference to "gross negligence
or reckless or intentional misconduct." Including this clause
absolves the state of any responsibility if someone is hurt.
REPRESENTATIVE RAMRAS explained that the provision was offered
as an amendment on the House floor. He didn't necessarily
support it, but wanted to move the bill.
SENATOR PASKVAN said he understands that from a management level
that there should not be liability if someone says they are
going to get a charitable product to a village. That is an
insulated decision, but if someone on the ground runs someone
over with a motor vehicle that has insurance, why wouldn't that
insurance be responsible. It's a fundamental question as to
which state policy is more pressing - the state's motor vehicle
policy that mandates coverage for that type of act or the
state's policy to distribute emergency aid. Understand, I fully
support that, but it's the policy issues that are at odds, he
said.
JANE PIERSON, Staff to Representative Ramras, explained that the
language is usually consistent with AS 26.20.140 - Immunity of
government, employees, and authorized volunteers or other
persons. The Representative who offered the Floor amendment
thought there should be some liability threshold for gross
negligence and things done outside the normal course of
business.
1:12:55 PM
SENATOR PASKVAN responded he understands it is outside the scope
of ordinary and usual activity, but that's what governments are
best positioned to do. They respond in times of emergency. That
decision to response should be an immune decision that carries
through to the boots on the ground. If the state responds and
then somebody runs someone over with a car, does the state just
tell the person who was run over that the state doesn't care?
1:14:42 PM
REPRESENTATIVE RAMRAS reiterated that it was a specific
accommodation to Representatives Gruenberg and Kerttula; he
believes the amendment is superfluous to the legislation.
CHAIR KOOKESH referenced page 1, line 7, and asked why it says
the governor "may" make state transportation.
REPRESENTATIVE RAMRAS opined that "may" is indicative that the
governor has an appropriate judgment call to make; the word
"shall" would unnecessarily encumber the executive and its
transportation assets.
He added that last year it was frustrating to hear the
governor's staff say it was against the law to move food to
rural Western Alaska. His response was that "there happens to be
a higher moral code in the blue statute book." Having created
the supply chain he and his staff then made a decision to
allocate much of the $25,000 to transportation that hadn't been
otherwise donated. He reported that very generous transportation
donations had come in from Carlile, Alaska Airlines, and smaller
commuter carriers, but often the per-pound cost to transport the
food was nearly as much as the food itself. He noted that after
delivering 40,000 pounds of food to 11 villages, others followed
that lead and delivered an additional 44,000 pounds of food to
Western Alaska. This not only fed hungry people it helped smooth
the divide between urban and rural Alaska, he said.
1:18:55 PM
CHAIR KOOKESH asked how the former governor moved the 44,000
pounds
REPRESENTATIVE RAMRAS replied he believes that private aircraft
was used. He spoke of the difficulties he had encountered and
reiterated that he prefers to look forward; HB 114 puts another
tool in the governor's toolbox.
SENATOR PASKVAN observed that the federal government does not
have the level of immunity that's offered in subsection (b) when
it declares a state of emergency and responds. He asked the
sponsor if he would mind if the committee amended the bill to
its original form, which did not include that immunity.
1:21:27 PM
REPRESENTATIVE RAMRAS replied he would be comfortable with the
change, but it would create a concurrence conflict in the House.
Thus, it would be more accommodating to the success of the bill
if it were to remain unchanged.
SENATOR MENARD said she appreciates the clarification.
1:24:23 PM
MCHUGH PIERRE, Deputy Commissioner, Alaska Department of
Military and Veterans Affairs, said the administration is not
opposed to HB 114, but the specific language is important. It's
necessary to include the word ["may"] to give the administration
latitude in making the decision to take action or not.
HB 114 addresses immunity before a disaster is declared. "This
is addressing when a state department such as DOT or DMVA or DPS
gives a plane or a boat or a car to somebody. It's not the
state's responsibility then when that person wrecks the car. It
is the person and the person's nonprofit organization - it's
their responsibility," Mr. McHugh said. It's important to ensure
that the nonprofit is properly insured so that if someone does
wreck the car and hurt somebody, that the nonprofit can take
care of the injured person.
1:26:59 PM
MR. MCHUGH said the sponsor has a heart for service; he really
did step up to respond to the disaster in Western Alaska.
However, "It was found that there could have been more action
taken. The governor does have power to use state equipment for
virtually anything - pre disaster or post disaster. It's just a
matter of how we pay for it." He clarified that a National Guard
asset is a federal rather than state asset. Thus the use of
equipment in that realm is narrowed. "We support Representative
Ramras and … we hope that this is another tool in the governor's
tool chest," he said.
1:28:13 PM
CHAIR KOOKESH asked if the administration supports the bill if
it moves forward with the word "may."
MR. PIERRE thanked him for the clarification; "may" is the
appropriate word.
SENATOR PASKVAN asked why the state should not be liable in tort
if it is delivering compassionate aid and someone is injured.
"Why shouldn't we just stick with Alaska's general operational
planning distinction?"
MIKE NAVE, Assistant Attorney General, Civil Division, Natural
Resources Section, Alaska Department of Law, said that's a good
question. He suggested the committee review AS 26.23.020 (c) and
(g). It supports Mr. Pierre's statement that the governor
already has the authority to commit state resources to a
disaster response. The problem is that it's not clear how this
new grant of immunity will mesh with the existing statutory
immunity provided in AS 26.23. DOL is somewhat concerned that it
might be less broad and strong and could lead to a new immunity
standard that is not summary judgment capable.
1:32:27 PM
SENATOR PASKVAN summarized that the state already has a
statutory structure to deal with governor declared disasters. He
asked the standard for liability under AS 26.23.020 and assuming
there is a governor declared disaster or emergency. He added
that he's trying to figure out if there is a distinct standard
for liability that is separate from the state's general planning
operational test that's included in Title 45.
1:33:43 PM
MR. PIERRE clarified that during a declared disaster only a
state employee would be operating a state vehicle. "HB 114 as it
stands would take it and move into a separate category that is
not yet defined." How do we treat the situation where a state
vehicle is operated by a nonprofit employee? The immunity
section is included so that the state isn't held responsible for
actions taken by an employee of a nonprofit or some other
acceptable organization, he stated.
SENATOR PASKVAN asked Mr. Nave if he agrees that the bill is
confusing as it relates to other state statutes.
MR. NAVE opined that the interplay between Chapter 26.23 in
general and the immunity grant in HB 114 would be confusing in
the event of litigation. It is then that it would matter how
these sections fit together because it will have specific impact
on individual defendants and their potential liability. DOL can
see arguments coming that lead it to believe that there could be
confusion about who is granted immunity and who is not.
1:36:39 PM
SENATOR PASKVAN noted that Alaska has pure apportionment under
AS 09.17.080. His understanding of what Mr. Pierre said is that
if the state was reasonably providing a vehicle, then there
would be no allocation of fault to the state under existing law;
it would fall solely on the nonprofit driver.
MR. NAVE replied that may be an intention behind this proposed
statute. But if the act of turning over control of a state
vehicle was negligent, you might get different opinions. In one
case with a disaster declaration there might be tort immunity
for certain state decisions; perhaps not in another case.
1:38:32 PM
CHAIR KOOKESH questioned whether the state would ever turn over
an airplane or vehicle to anyone that is not authorized.
MR. PIERRE responded that's why the word "may" is so critical.
"So we have the ability to discern from someone who is competent
and someone who is not. That way when we are faced with the
situation, we will be in the right position of making a sound
judgment call," he said.
REPRESENTATIVE RAMRAS said it wasn't his intention for
nonprofits to operate state assets. It would be possible for
members of nonprofits to participate in loading and unloading
airplanes. The scope of liability discussed in the House went to
volunteer church members loading a state van and what would
happen should a state employee drive over a volunteer. "We don't
anticipate church group leaders flying state airplanes or marine
craft," he said.
CHAIR KOOKESH commented that he has driven boats of various
sizes all over Southeast waters and he's sure he wouldn't be
allowed at the wheel of a state ferry.
MR. PIERRE responded that the sponsor has a good idea and we
support the expansion of the governor's toolbox.
SENATOR PASKVAN stated his concern, which is that it's easy to
lose sight of the innocent who might be injured. He wonders if
the state's policy should be, "We're in a disaster we don't
care." That walks all over the innocent, he said.
MR. PIERRE said he hopes that will never happen.
SENATOR PASKVAN responded, "Your hope conflicts with language."
1:42:55 PM
SENATOR MEYER asked Mr. Pierre to comment on the fiscal note.
MR. PIERRE explained that the fiscal note should be zero. The
agency should be able to absorb certain expenditures and if
necessary it will ask for a supplemental to take care of an
extraordinary expense.
SENATOR MENARD said she appreciates Mr. Pierre's comments and
the sponsor's Good Samaritan work.
CHAIR KOOKESH summarized that the administration supports the
bill, the word "may" is important, and the fiscal note can be
addressed further in the finance committee.
MR. PIERRE said yes.
CHAIR KOOKESH closed public testimony and asked the will of the
committee. He said he doesn't have a problem moving the bill.
1:45:40 PM
SENATOR PASKVAN said he has a problem with subsection (b) and at
a minimum it should be discussed. Representative Ramras didn't
let the lack of a state law stand in the way of accomplishing a
magnitude of good and he made the state look great in the
process. It's clear that a law is needed to get rid of the
barriers he encountered, but given the testimony from Mr. Nave
and Mr. Pierre, subsection (b) is at best confusing and
misapplied.
SENATOR PASKVAN moved to strike subsection (b) from HB 114.
SENATOR MEYER said he would prefer that the judiciary committee
address the question because it appears to be legal in nature,
but if it doesn't have a referral to that committee then this
committee should give it consideration.
CHAIR KOOKESH noted that the bill next goes to finance.
MS. PIERSON explained that last year Mike Mitchell with DOL said
he saw no problem with the concept of the bill. However, torts
arising from gross negligence or reckless or intentional
misconduct are a concern because that is not contained under AS
26.20.140, the state's liability and disaster statute. That is
where HB 114 would fall if subsection (b) is not included. Mr.
Mitchell's point was that if subsection (b) is included the
state would be able to get past any claim with summary judgment.
This gives more liability to a person who is hurt, which was the
intent of the amendment.
CHAIR KOOKESH asked Mr. Nave if he could alleviate the
committee's concern regarding subsection (b).
1:49:36 PM
MR. NAVE replied he can foresee problems because it is outside
the scope of the more detailed disaster statutes. In the case of
individual accidents, the chance of state employees and officers
obtaining summary judgment would go down. Subsection (b) reads
as if it is intended to increase potential state liability in
lawsuits over what exists in other statutes that pertain to
disasters. That gives DOL pause.
1:50:49 PM
SENATOR PASKVAN cited AS 26.20.140 (a). "The state, a district
of the state, and the employees, agents, or representatives of
the state or district are not liable for personal injury or
property damage sustained by any person appointed or acting as a
civilian defense worker." He expressed concern about the
potential unintended consequence if a volunteer were to be hurt.
He further observed that subsection (b) says that the state is
not liable if it is "reasonably attempting to comply with this
chapter." This appears to be an ordinary negligence standard, he
said.
MR. NAVE said that in contrast, HB 114 subsection (b) purports
to grant broader immunity to a larger class of people, but on a
narrower substantive basis. The interplay between the statutory
grants of immunity or limitations on state immunity is almost
certain to raise arguments in one accident about which statute
should apply to whom. The answers could be different and have
unintended consequences for different people involved in the
same accident.
MR. NAVE further pointed out that the language in subsection (a)
is somewhat different than had been described.
1:54:50 PM
SENATOR PASKVAN asked if AS 26.20.140 (b) is a reasonableness
standard for liability with respect to death or injury.
MR. NAVE replied it's a fair summary.
SENATOR PASKVAN asked if the conclusion would be that HB 114
subsection (b) would expose an innocent, injured person to non-
recovery for their injuries even if state were unreasonable.
MR. NAVE replied it would depend on the circumstances. If
subsection (b) were enacted into law it's difficult to predict
how a judge would or would not apply it to a particular
accident. The standard in subsection (b) is different and the
bar is higher; it's basically gross negligence. How those
statutes will work together in a future lawsuit is a concern.
CHAIR KOOKESH asked Senator Paskvan if he maintains his motion.
1:57:03 PM
SENATOR PASKVAN summarized his understanding of Mr. Nave's
statement. Subsection (b) sets a higher bar for the innocent to
overcome to be compensated for negligence of the state.
CHAIR KOOKESH announced he would hold HB 114. He asked the
sponsor to work with Senator Paskvan and DOL to try to resolve
the differences and he would ask for a judiciary referral.
SENATOR PASKVAN said that is most satisfactory. We're all in
favor of a law change, but I don't want to hurt the innocent, he
said.
| Document Name | Date/Time | Subjects |
|---|