Legislature(2017 - 2018)GRUENBERG 120
03/30/2017 01:00 PM House MILITARY & VETERANS' AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB152 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 152 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 152-ORGANIZED MILITIA; AK ST. DEFENSE FORCE
1:08:10 PM
CHAIR TUCK announced that the only order of business would be
HOUSE BILL NO. 152, "An Act relating to the organized militia;
and relating to the authority of the adjutant general."
1:08:46 PM
ROBERT DOEHL, Deputy Commissioner, Office of the Commissioner,
Department of Military & Veterans' Affairs (DMVA), stated DMVA's
support for HB 152.
REPRESENTATIVE PARISH asked whether DMVA has objections to a
forthcoming amendment he submitted for review by the department.
MR. DOEHL said DMVA has no objections.
REPRESENTATIVE REINBOLD questioned whether DMVA has received
testimony - in support of or in opposition to HB 152 - from
members of the Alaska State Defense Force (ASDF).
MR. DOEHL related he has heard support expressed by Colonel John
James, commander of ASDF.
REPRESENTATIVE REINBOLD expressed her interest in receiving a
unanimous resolution from members of ASDF.
MR. DOEHL expressed his belief command has made ASDF members
aware of the bill; however, he said he was unaware of a
resolution from members.
REPRESENTATIVE REINBOLD restated her question as to if, and how,
every member was notified and given an opportunity to respond.
MR. DOEHL pointed out [the legislation] is a matter of public
record. He acknowledged each member has not been individually
served notice of the bill, nor has a unanimous resolution been
solicited.
CHAIR TUCK noted the governor is aware of the legislation.
REPRESENTATIVE REINBOLD surmised many members may not be aware
of the bill.
MR. DOEHL said he could not speak to the number of members who
have actual knowledge.
REPRESENTATIVE REINBOLD directed attention to written opposition
to HB 152 from Lawrence D. Wood [dated 3/20/17] provided in the
committee packet. She said the aforementioned testimony is
evidence there is opposition to the bill and expressed her
opposition to the bill at this time.
MR. DOEHL said Mr. Wood is no longer a member of ASDF;
recognized Mr. Wood's previous service.
1:12:47 PM
REPRESENTATIVE PARISH posited a situation in which the state
suffered another major earthquake and members of the organized
militia were ordered into service by the governor or the
adjutant general. He asked for affirmation that the members are
"protected" in terms of possible injuries; however, were members
acting as Good Samaritans, they would not have the "umbrella of
protections offered by the state."
MR. DOEHL said, "That is correct."
REPRESENTATIVE PARISH surmised offering members more protection
is wise; in fact, [the bill, by saving time] may save civilian
lives and honors the state's moral obligation to members of the
militia.
MR. DOEHL said, "That is correct."
REPRESENTATIVE RAUSCHER asked what members of the militia would
be doing in the aforementioned scenario.
REPRESENTATIVE PARISH said the militia would be trying to save
lives and digging civilians out of rubble; if [HB 152 is
enacted] and the state can order members of the militia into
service, protections would be extended faster, and bureaucracy
would not slow down the response to a matter of life and death.
REPRESENTATIVE RAUSCHER recalled previous testimony before the
committee from various organizations and agencies that are
already in position to respond, without waiting for
[authorization from] the governor.
CHAIR TUCK opined HB 152 addresses the rare case when the
governor is unavailable. Although fire departments are
dispatched without approval from elected officials, the bill
allows for a quick response [to an emergency], only when the
governor cannot act. He questioned whether the state should
hesitate if lives, safety, and the security of Alaska are at
risk.
REPRESENTATIVE SADDLER said he had various questions as to the
impact of the proposed legislation on the following: the
National Guard; the command structure of ASDF; the
responsibilities of drafting regulations; certain authorities of
the governor. He stated his concern for making unjustified
long-term changes to the structure of the state organized
militia.
1:20:37 PM
REPRESENTATIVE REINBOLD directed attention to the bill on page
3, lines 21-22, which read:
(f) The organized militia may not be used against or
to mitigate a lawful organized labor action or
activity.
REPRESENTATIVE REINBOLD asked for an explanation of [subsection
(f) on page 3].
CHAIR TUCK pointed out [subsection (f) on page 3] is existing
language in statute.
MR. DOEHL explained the aforementioned existing language
originated over 100 hundred years ago and is related to
deployment of the National Guard to disperse peaceful [labor]
union strikes. He noted the provision specifies "lawful"
activity and the governor would still have the authority to
deploy the militia in the case of an unlawful action.
REPRESENTATIVE REINBOLD opined the aforementioned subsection is
a new subsection added by the bill. She directed attention to
page 6, line 28, which read:
(4) not be contrary to federal law or regulations.
REPRESENTATIVE REINBOLD cautioned against yielding state
sovereignty to federal regulations and law. She clarified her
two questions: 1.) whether [subsection (f) on page 3] is
necessary; 2.) whether a voluntary state defense force should be
subject to federal law or regulations.
MR. DOEHL, in response to Representative Reinbold's second
question, said the federal government has explicitly authorized
state militias by U.S. Code, Title 32, Section 109, so there is
no potential for "contrary to federal law or regulations" with
the exception of constitutional violations which are not
waivable.
REPRESENTATIVE REINBOLD said Alaska is the first state to make
similar significant changes.
MR. DOEHL said the foregoing statement is incorrect; the changes
within HB 152 would put Alaska "more in line with where the
other states have already gone."
REPRESENTATIVE REINBOLD remarked:
So, you're saying most of the other states have
already done this, they have, they have yielded the,
their state defense forces and everything else in this
bill, you're saying that most other states have
already done this, it that correct?
1:26:28 PM
MR. DOEHL answered, "[Of] the states where we have done
research, they, they have already done, performed these
measures." Furthermore, the state militia is always subject to
[the Tenth Amendment to the U.S. Constitution]. In further
response to Representative Reinbold pertaining to the specific
source of supporting research, he said research was done through
online sources and through [WestLaw online legal research
service for lawyers].
REPRESENTATIVE REINBOLD asked which specific states had enacted
identical legislation.
MR. DOEHL said he could not provide that information at this
time.
REPRESENTATIVE RAUSCHER returned attention to the bill on [page
3, lines 21-2], [text provided previously], and asked for the
definition of [subsection] (f) [on page 3].
CHAIR TUCK provided a brief description of the origin of labor
union organizations, noting that in the late 1800's, the
National Guard was manipulated by business corporations and used
unlawfully against civilians. He clarified this language is
already in statute; however, HB 152 would repeal some
provisions, thus [subsection (f) on page 3] is added again.
1:30:17 PM
REPRESENTATIVE SADDLER moved to report HB 152 out of committee
with individual recommendations and the accompanying fiscal
notes.
CHAIR TUCK objected, pointing out public testimony has not been
heard.
REPRESENTATIVE SADDLER stated his belief that hearing public
testimony is not "essential to the process." He restated the
motion.
1:31:12 PM
The committee took a brief at-ease at 1:31 p.m.
1:32:12 PM
CHAIR TUCK clarified the motion.
1:32:26 PM
The committee took an at-ease from 1:32 p.m. to 1:34 p.m.
1:34:06 PM
CHAIR TUCK removed his objection.
REPRESENTATIVE SADDLER withdrew his motion
1:34:53 PM
REPRESENTATIVE PARISH moved Amendment 1, [labeled 30-LS0366\O.2,
Wallace, 3/23/17], which read:
Page 3, line 22:
Delete "organized labor action or activity"
Insert "activity, including an organized labor
activity"
1:35:00 PM
CHAIR TUCK objected for discussion purposes.
REPRESENTATIVE PARISH said Amendment 1 maintains the explicit
protection for organized labor and explicitly forbids the use of
the organized militia against other lawful activities such as
[First Amendment to the U.S. Constitution] protected protests.
CHAIR TUCK removed his objection.
REPRESENTATIVE REINBOLD objected to Amendment 1, expressing her
understanding that the amendment would cause [subsection (f) on
page 3] to read, "the organized militia may not be used against
or to mitigate an activity, including an organized labor
activity."
REPRESENTATIVE PARISH said no. He pointed out Amendment 1, on
line 2, deletes "organized labor action or activity," thus the
subsection would read, "the organized militia may not be used
against or to mitigate a lawful activity, including an organized
labor activity." In response to Representative Reinbold's
question as to his intent, Representative Parish recalled a time
when the National Guard was used against Vietnam War protestors
[and students] at Kent State University [in Ohio, May 4, 1970],
and he urged to explicitly forbid the use of armed forces
against citizens exercising their rights.
REPRESENTATIVE REINBOLD asked "Did someone bring [the amendment]
to you?
REPRESENTATIVE PARISH reminded the committee he offered a
similar conceptual amendment to HB 152 [at the hearing of
3/23/17] that was out of order. Amendment 1 was prepared by
Legislative Legal Services, Legislative Affairs Agency [at his
request].
CHAIR TUCK pointed out Amendment 1 protects other lawful
activities in addition to those of organized labor.
MR. DOEHL advised DMVA's interpretation of Amendment 1 is that
the organized militia would be barred from infringing upon the
rights of any lawful activity.
REPRESENTATIVE REINBOLD repeated her question.
REPRESENTATIVE PARISH further explained Amendment 1 extends the
protection of organized labor to that of all people engaged in a
lawful activity.
1:42:10 PM
REPRESENTATIVE SADDLER asked for the distinction between an
action and an activity.
REPRESENTATIVE PARISH said Legislative Legal Services made a
change from antiquated language; for example, organized labor
actions refer to strikes and other actions taken by labor
organizations which are protected by law. An activity is an
action in process.
REPRESENTATIVE SADDLER clarified his question is whether an
activity may be illegal.
REPRESENTATIVE PARISH returned attention to the bill on page 3,
line 21 [text provided previously], and pointed out the word
lawful is not excerpted by Amendment 1, thus said activities
must be lawful to enjoy protection. Representative Parish, in
response to Representative Saddler's question as to whether only
legal activities are encompassed, restated the purpose of
Amendment 1 is to expand the protection from specifically lawful
organized labor actions and activities to all lawful activities.
1:45:20 PM
REPRESENTATIVE SADDLER moved [Conceptual] Amendment 1 to
Amendment 1. He then withdrew Conceptual Amendment 1 to
Amendment 1, and stated his goal is to remove "organized labor
action or".
1:45:54 PM
REPRESENTATIVE LEDOUX opined DMVA interprets [subsection (f) on
page 3] as to preclude the organized militia from engaging in
any action against any lawful activity.
1:46:33 PM
MR. DOEHL said that is correct.
REPRESENTATIVE LEDOUX suggested the existing statute is an
anachronism from the time a militia was used as organized labor
strikebreakers.
MR. DOEHL agreed about the origin of the language. He advised
an activity not modified by "organized labor" is seen as a
[First Amendment to the U.S. Constitution] protected, lawful
activity, although there may be ambiguity.
REPRESENTATIVE RAUSCHER questioned the meaning of [existing
subsection (f) on page 3] as originally drafted.
REPRESENTATIVE PARISH explained [existing subsection (f) on page
3] is ambiguous, which is corrected by Amendment 1.
REPRESENTATIVE RAUSCHER suggested adding "including a legal
organized labor activity."
REPRESENTATIVE PARISH recalled his original [conceptual
amendment] read, "including those of organized labor," although
Amendment 1 reads as drafted by Legislative Legal Services.
CHAIR TUCK suggested the committee hear an opinion from
Legislative Legal Services.
1:52:01 PM
REPRESENTATIVE REINBOLD moved [Conceptual] Amendment 2 to
Amendment 1 that would delete ", including an organized labor
activity" and would insert a period after the word "activity."
1:52:19 PM
CHAIR TUCK objected for discussion purposes.
REPRESENTATIVE LEDOUX urged for an opinion from Legislative
Legal Services.
1:53:10 PM
The committee took a brief at-ease.
REPRESENTATIVE LEDOUX pointed out Section 3 is a new section,
and yet contains antiquated language.
REPRESENTATIVE PARISH explained related language in AS 26.05
340(a) addresses strikebreaking.
CHAIR TUCK, in response Representative LeDoux's question as to
whether [AS 26.05.340(a)] would be repealed by HB 152, said yes,
and explained HB 152 would remove sections from existing statute
and would transfer the original intent into a new [section].
1:57:00 PM
REPRESENTATIVE SADDLER asked whether it is the intent of the
sponsor of HB 152 to provide special protection only for
organized labor, or for any legal activity.
1:57:37 PM
MR. DOEHL affirmed HB 152 repeals AS 26.05.340(a), (b,) and (d).
He said the intent of the sponsor is to provide protections from
the militia being deployed against any lawful activity.
REPRESENTATIVE SADDLER surmised Conceptual Amendment 2 to
Amendment 1 would achieve DMVA's goal.
CHAIR TUCK opined the language [in the bill] is specific due to
its historical perspective.
REPRESENTATIVE REINBOLD asked whether Mr. Doehl objects to
Conceptual Amendment 2 to Amendment 1.
2:00:02 PM
MR. DOEHL said he has no objection.
2:00:58 PM
MEGAN WALLACE, Attorney, Legislative Legal Counsel,
Legislative Legal Services, Legislative Affairs Agency,
opined [on page 3, lines 21-22, subsection (f)] modifies
only organized labor action thus the [subsection] prohibits
the militia being used against a lawful organized labor
action or activity, not any activity in general.
REPRESENTATIVE REINBOLD maintained the necessity of
Conceptual Amendment 2 to Amendment 1.
CHAIR TUCK stressed the language of Amendment 1 [unamended] is
inclusive of all lawful activity.
REPRESENTATIVE SPOHNHOLZ called for the question on Conceptual
Amendment 2 to Amendment 1.
REPRESENTATIVE REINBOLD restated her Conceptual Amendment 2 to
Amendment 1.
2:04:29 PM
A roll call vote was taken. Representatives Reinbold, Rauscher,
and Saddler voted in favor of Conceptual Amendment 2 to
Amendment 1. Representatives Spohnholz, LeDoux, Parish, and
Tuck voted against it. Therefore, Conceptual Amendment 2 to
Amendment 1 failed by a vote of 3-4.
2:04:57 PM
The committee took a brief at-ease.
2:05:32 PM
REPRESENTATIVE SPOHNHOLZ stated her support for Amendment 1 due
to the amendment's explicit language related to organized labor.
REPRESENTATIVE SADDLER cautioned against passing laws based upon
historical matters.
REPRESENTATIVE REINBOLD asked for affirmation from Ms. Wallace
that the intent of Amendment 1 is to protect everybody.
MS. WALLACE explained Amendment 1 would protect all lawful
activities, including organized labor activities.
REPRESENTATIVE LEDOUX surmised without Amendment 1, [HB 152] is
ambiguous as to whether only the activities of organized labor
are protected.
MS. WALLACE advised subsection (f) [on page 3] was a restriction
against using the organized militia against a lawful organized
labor action or activity; as written, the bill would not
expressly prohibit using the organized militia against other
lawful activities. In further response to Representative
LeDoux's concern about the purpose of Amendment 1, she agreed
Amendment 1 achieves the purpose of including all lawful
activities.
2:11:23 PM
REPRESENTATIVE PARISH directed attention to [the bill on page 3,
lines 10-13] which read:
(c) Notwithstanding (b) of this section, the adjutant
general may not order any part of the organized
militia into active state service for actions that
would subject civilians to the use of military power
that is regulatory, prescriptive, proscriptive, or
compulsory, unless approved by the governor before
giving the order.
REPRESENTATIVE PARISH stated there is value to repeating
language when pertinent to the rights of citizens.
CHAIR TUCK removed his objection to Amendment 1.
2:13:12 PM
REPRESENTATIVE SADDLER objected to Amendment 1.
2:13:34 PM
A roll call vote was taken. Representatives Spohnholz, LeDoux,
Parish, Rauscher, Saddler, Reinbold, and Tuck voted in favor of
Amendment 1. Therefore, Amendment 1 passed by a vote of 7-0.
2:14:06 PM
The committee took a brief at-ease.
2:14:58 PM
CHAIR TUCK paraphrased from the following summary of the bill
provided in the committee packet, signed by Deputy Commissioner
Doehl and dated 3/22/17 [original punctuation provided]:
Broadly speaking, HB 152 updates the original 1955
Alaska Military Code (AMC) by clarifying statutory
authorities. Specifically, the bill grants military
command authority to The Adjutant General (TAG), who
already possesses statutory control of the organized
militia. Military command authority carries two broad
functions: 1) legal authority over personnel,
including the power to discipline; and 2) legal
responsibility for missions and resources. The old
AMC is unclear regarding this kind of authority and
concomitant responsibility. For example, it may seem
logical, but it is not explicitly set in statute TAG:
1) has control, but not command of the AKARNG and
AKANG; 2) may promulgate regulations for the AKARNG
and AKANG; and 3) may order State Active Duty
personnel to work in the Office of the TAG.
Command and control are important functions in any
military organization. Commanders set and are
responsible for the organization's priorities, goals,
and missions, while people in control direct their
subordinates to carry out those missions. A commander
is in command of a unit and its subordinate units,
e.g., the Governor commands the AKARNG and AKANG,
their brigades and wings, the battalions and
squadrons, etc. There exists a chain of command,
i.e., each commander of a subordinate unit commands
his/her unit and is therefore responsible for and
makes final decisions on matters that pertain to the
that unit. A commander is responsible for all their
staffs do and fail to do. A commander can delegate
this authority, but not the responsibility. The final
decision, as well as the final responsibility, remains
with the commander.
On the other hand, control is the authority to direct
people to accomplish missions. A commander has staff
who exert "control" over their subordinates but not
command, i.e., the principal staff may direct their
staff members to do things. The commander can hold
the principal staff responsible for their actions, but
as their commander, he/she is still ultimately
responsible for those actions. Even if someone far
down the chain who has no authority over anyone acts
or fails to act as directed, the commander remains
ultimately responsible for that person's actions and
their effect on the larger goals and missions.
In practice, TAG may be ultimately responsible for the
Alaska National Guard. But, if this is so, then TAG
should be a commander, just as those who are appointed
to be commanders on active duty. The structure
enabled by HB 152 resembles the federal Department of
Defense model, where the President is commander-in-
chief who commands subordinate commanders in an
operational environment, i.e., combatant commanders.
This structure will not degrade the other military
functions TAG holds, such as principal advisor to the
Governor on military matters.
Extant law allows only the Governor to order the
organized militia into State Active Duty; this bill
grants TAG authority to activate the organized militia
in emergency situations when the Governor is not
immediately available. While we expect such
circumstances will be rare, we believe it is vital to
the safety and security of Alaskans for their
organized militia to be able to respond immediately
whenever they might be needed.
HB 152 also empowers TAG to promulgate regulations
consistent with federal active duty regulations,
Alaska state law, and the Governor's intent, for
internal use in administration and command of the
organized militia. This update would help bring
Alaska's organized militia into the 21st Century and
on par with or better than other state National
Guards.
We have reviewed HB 152 section by section, and offer
the following analyses and observations:
Section 1. Establishes TAG as in both command and
control of the organized militia. At present, the
Governor is commander-in-chief and commands the
organized militia, while TAG is in control,
subordinate to the Governor, but not statutorily
empowered as the military commander. HB 152 delegates
the Governor's command authority to TAG to carry out
the Governor's policies in accordance with the
Governor's instructions and empowers TAG to adopt
regulations necessary to the operation of the
organized militia as long as they are in compliance
with federal law and regulation. Command authority
enables TAG to exert legal authority over personnel,
including the power to discipline, and grants TAG
legal responsibility for missions and the resources
needed to carry them out.
Section 2. Establishes circumstances under which the
Governor may order the organized militia into active
state service and eliminates the Governor's ability to
delegate to TAG the authority to order members of the
organized militia into active state service in order
to fight wildland fires. That authority is clarified
and broadened in Section 3.
Section 3. Describes a range of circumstances under
which TAG may order members of the organized militia
into active state service to respond to emergencies if
the Governor is not immediately available to do so and
directs TAG to make reasonable and continuous efforts
to contact the Governor to affirm, amend, or reverse
TAG's actions. This Section also restricts TAG's
authority in a number of situations, preventing
ordering into active state service in ways that would
subject Alaska citizens to regulatory, prescriptive,
proscriptive, or compulsory military power, including
lawful labor action or activity. It further specifies
no part of the organized militia may leave the state
without the Governor's consent when in active state
service. If the Governor's approval is not available,
TAG must reassess orders into active service no later
than 72 hours after such orders take effect. TAG may
order members of the organized militia into full-time
duty with the TAG's office.
Section 4. While the Governor's orders under this
Section are final, TAG's decisions are always subject
to the Governor's review.
Section 5. This Section clarifies existing law
specifying the ASDF may exist only with the express
consent of the U.S. Congress. It defines the ASDF as
a force subject to rules, guidelines and authorities
as specified by TAG. Finally, this Section clarifies
an ASDF Member engaged in inactive duty, training, or
community service duties shall receive benefits if the
Member suffers an injury or disability, or dies in the
line of duty, as prescribed by the Alaska Worker's
Compensation Act (AS 23.30).
Section 6. Specifically adds the ASDF to the list of
entities comprising Alaska's organized militia.
Section 7. Establishes TAG and Assistant Adjutants
General are subject to regulations under this chapter
of law and paid according to state law.
Sections 8-10 streamline day-to-day administrative
matters and free the Governor from statutory
responsibility to make or approve personnel decisions
better made by TAG.
Section 8. Allows TAG to recognize federal withdrawal
of an officer's commission by vacating and/or
terminating that officer's state appointment without
prior approval of the Governor, as present law
requires.
Section 9. Allows TAG to accept resignations of
commissioned or warrant officers without prior
approval of the Governor, as present law requires.
Section 10. Allows TAG to place the names of
commissioned officers and enlisted persons upon the
retired list without prior approval of the Governor,
which present law requires.
Section 11. Relaxes the requirement for militia units
to be served by an active armory before being issued
arms or equipment; thus, enabling small scout
detachments of the ASDF to form in small communities
that do not have, and are perhaps unlikely to ever
have, state armories. This Section also rescinds the
requirement for all proceeds received from rental or
other nonmilitary use of an armory to be deposited in
the state General Fund, since federal rules require
the state to reduce claims for reimbursement for
facilities maintenance from the federal government in
accordance with the terms of the Master Cooperative
Agreement with the National Guard Bureau.
Section 12. Allows TAG to authorize, to the extent
funds are available, payment of tuition and fees for
ASDF Members to attend educational, vocational, or
technical schools in Alaska, as is presently available
to Alaska National Guard Members. TAG may prioritize
categories of education benefits to encourage
recruitment and retention in the four elements of the
organized militia. Payments are to be made only to
militia Members in good standing in both the
educational program and in the organized militia.
Section 13. Specifies regulations adopted under this
statute may not be contrary to federal law or
regulation.
Section 14. Directs regulations adopted under this
statute must conform as nearly as practicable to rules
governing the U.S. Armed Forces.
Section 15. Allows the Governor to delegate authority
and provide for subdelegation, except the powers given
the Governor to convene general courts-martial (AS
26.05.450).
Section 16. Repeals existing language which is either
no longer necessary, amended, or reestablished in this
statute, including:
• Relationship between Governor and TAG regarding
command and control of the organized militia (AS
26.05.170); • Mandatory annual active duty training at
sites other than regular bases (AS 26.05.235) --
Annual Training schedules are controlled by federal
requirements to organize, train, and equip forces to
meet federal mission requirements. A state-imposed
limit on how this training is accomplished is
inconsistent with the federal program that funds it.
Further, while the National Guard strives to
accomplish training in a wide variety of operating
environments, demanding it of the ASDF on a minimum
frequency could introduce additional costs to the
program; • Use of the organized militia against labor
organizations (AS 26.05.340(a)); • Organized militia
leaving the state with arms and equipment without
Governor's consent (AS 26.05.340(b)); and • Necessary
regulations adopted by TAG and approved by the
Governor (AS 26.05.340(d))
Finally, we note language in Section 1 stating "the
adjutant general shall adopt regulations …." is
essentially being moved from AS 26.05.190 to AS
26.05.060. As with recent legislation establishing
the new Alaska Code of Military Justice, we take the
position that because regulations adopted by TAG
affect only the organized militia and not the public
at large, they are not subject to public review as
required by the Administrative Procedures Act (APA)
for other regulations. We maintain this exemption
from the APA is the correct interpretation of the
statute, but it is not entirely explicit. As this
point may be questioned by legislators reviewing the
bill in committee, it might prove worthwhile to amend
HB 152 to specifically include exemption from the APA
in AS 26.05.060.
2:18:26 PM
CHAIR TUCK opened public testimony on HB 152. After
ascertaining no one wished to testify, public testimony was
closed.
REPRESENTATIVE SADDLER stated the following concerns regarding
HB 152: uncertainty related to the bill's ultimate goal; the
bill proposes significant changes in the management of the
state's organized militia, in particular changes to the
management of the Alaska State Defense Force (ASDF) justified by
extreme circumstances; unanswered questions related to the
current lawful succession of the governor's authority over the
organized militia.
MR. DOEHL said he would provide further information related to
the current succession of the governor's authority.
REPRESENTATIVE SADDLER questioned if - or when - ASDF was
activated into state active duty.
MR. DOEHL said ASDF went into state active duty after the
terrorist attacks of September 11, 2001; in the cities of
Savoonga and Gamble to assist after storms; to assist evacuation
centers during wildland fires; during other support roles after
disasters.
REPRESENTATIVE SADDLER asked whether the regulatory authority
granted the adjutant general in HB 152 would have allowed
him/her to implement the Alaska Code of Military Justice on
his/her sole authority.
MR. DOEHL stated regulations can only be adopted to implement
statutes and cannot be enacted without the statutory basis to do
so. House Bill 126 [passed in the Twenty-Ninth Alaska State
Legislature] followed a statutory change.
REPRESENTATIVE SADDLER repeated his question.
MR. DOEHL remarked:
You would have needed to have had last year's House
Bill 126 even if this legislation [had] been enacted
because you needed the statutory basis, or you need
the statutory power for the, for the adjutant general
to take those actions. Until the Alaska Code of
Military Justice was enacted last year there would not
have been a statutory basis for doing those
regulations.
2:24:49 PM
REPRESENTATIVE SADDLER returned attention to ASDF, pointing out
a pattern of efforts to upgrade its status: a budget request
for $210,000 for battalion command structures, legislation to
extend workers compensation coverage when training or in state
service, and provisions in HB 152 to allow for payments for
training and education.
MR. DOEHL acknowledged DMVA recognizes ASDF as a valuable
component of the organized militia and feels the aforementioned
actions are essential to developing ASDF's capability to serve
Alaskans when needed.
REPRESENTATIVE SADDLER asked for ASDF's ten-year personnel
history.
MR. DOEHL recalled in 2005, there were around 70-80 active
members and today there are over 80 members actively drilling
and training. In further response to Representative Saddler's
question about whether there is an active recruiting effort, he
said ASDF is recruiting through social media and other routes.
REPRESENTATIVE SADDLER inquired as to whether ASDF has been
called to active state service before the National Guard was
called.
MR. DOEHL advised ASDF came to active duty before the National
Guard when running the disaster assistance centers. In further
response to Representative Saddler, he added ASDF ran some of
the evacuation centers during the wildland fires before all
members of the National Guard were activated, which would have
been three occasions in the last three years.
2:28:45 PM
REPRESENTATIVE SADDLER questioned the need to provide upgrades
for ASDF when the National Guard is available.
MR. DOEHL expressed DMVA believes there are needs best filled by
ASDF; also, after recent deployments, insufficient numbers of
National Guard members were in the state.
REPRESENTATIVE SADDLER further asked under what circumstances
would the National Guard be incapable - in terms of training,
leadership, or equipment - to accomplish a task which ASDF could
accomplish.
MR. DOEHL advised there are circumstances when substantial
numbers of certain forces of the National Guard are deployed,
such as communications detachments. When small specialty
functions are deployed, there are no backup capabilities within
the National Guard, but there are capable members in ASDF.
REPRESENTATIVE SADDLER asked whether HB 152 provides any limit
to the adjutant general's ability to order ASDF members into
fulltime duty in the adjutant general's office.
MR. DOEHL said no, except for fiscal constraints.
REPRESENTATIVE SADDLER requested DMVA attach an indeterminate
fiscal note to the bill due to the aforementioned provision
within HB 152 which would allow additional expenses for
personnel. He then asked for an explanation of the difference
between control and command.
MR. DOEHL explained control is based upon the right and
authority to direct subordinates to complete an action. A
person in command is responsible for shaping an action and the
overall effort, and for the outcome of said effort.
REPRESENTATIVE SADDLER questioned whether the adjutant general
currently has command of the organized militia.
MR. DOEHL said the adjutant general has control and the governor
has command.
REPRESENTATIVE SADDLER asked how said absence of command by the
adjutant general puts the state in jeopardy.
MR. DOEHL explained not establishing consistent command is an
ongoing degradation of the effectiveness of the Alaska Code of
Military Justice. In response to Representative Saddler's
request for further clarification, he added the adjutant general
has the power to implement the Alaska Code of Military Justice;
however, to optimize its effectiveness, [not having command]
degrades his/her overall efforts to obtain the best organized
militia.
REPRESENTATIVE SADDLER cautioned that passing command and
control to an unelected official is troublesome.
2:35:07 PM
REPRESENTATIVE REINBOLD directed attention to the bill on page 4
lines [30-31] which read:
The adjutant general and assistant adjutants general
are subject to regulations under this chapter and paid
according to state law.
REPRESENTATIVE REINBOLD asked for a description of assistant
adjutants general.
MR. DOEHL said assistant adjutants general are the commanders of
the Alaska Air National Guard and the Alaska Army National
Guard, Brigadier General Karen Mainsfield and Brigadier General
Joseph Streff.
REPRESENTATIVE REINBOLD stated her opposition to the bill.
There followed brief clarifying statements.
REPRESENTATIVE SADDLER directed attention to the bill summary of
Section 4 provided in the committee packet, signed by Deputy
Commissioner Doehl, dated 3/22/17, [text previously provided],
and expressed his understanding that the adjutant general's
(TAG's) decisions are already subject to the governor's review.
MR. DOEHL said [Section 4] is designed to address the concern
about a possible improper delegation of authority. Section 4
clarifies the governor at any time is the elected official and
thereby is the ultimate command and authority over the adjutant
general; in fact, the proposed change in statute does not remove
any authority of the governor.
REPRESENTATIVE SADDLER agreed but stated his concern that the
bill gives the adjutant general command and control of the
organized militia with the governor retaining only the
"slightest legal oversight."
2:40:02 PM
MR. DOEHL pointed out HB 152 creates the identical alignment
that is established by federal regulation between the most
senior generals in the U.S. military and the U.S. President.
REPRESENTATIVE SADDLER observed if the [U.S.] commander in chief
is unable to discharge his/her duties, authority passes to
another elected official, the vice president.
MR. DOEHL disagreed, and advised the National Command Authority
is in place at the national level when the president cannot be
reached.
REPRESENTATIVE SADDLER directed attention to the bill [on page
5, lines 23-31, and continuing to page 6, lines 1-2] which read:
(b) The armory of each battalion, company, or other
unit is subject to the order of the adjutant general
and under the charge of its armory board which shall
keep in the armory all property furnished by the
state. [EXCEPT FOR SCOUT BATTALIONS ORGANIZED UNDER
SPECIAL AUTHORITY OF THE SECRETARY OF THE ARMY, A UNIT
MAY NOT BE FURNISHED WITH ARMS OR EQUIPMENT UNTIL A
SUITABLE ARMORY IS PROVIDED FOR THEIR DEPOSIT.]
Subject to regulations adopted by the adjutant
general, an armory may be used for any reasonable and
legitimate civilian activity so long as the activity
does not interfere with its use for military purposes.
[PROCEEDS RECEIVED AS RENTAL OR OTHERWISE AT AN ARMORY
FROM NONMILITARY USE 1 SHALL BE DEPOSITED IN THE
GENERAL FUND.]
REPRESENTATIVE SADDLER and asked whether the intent of proposed
Section 11 is for the adjutant general to issue weapons to
members of ASDF.
MR. DOEHL said the decisions on what equipment would be issued
to ASDF would be made based on missions and capabilities; at
this point there is no intent to issue weapons. In response to
Representative Saddler's request for clarity, he restated it is
not the intent of the adjutant general to issue weapons;
however, he said he could not say what an adjutant general may
determine in the future.
REPRESENTATIVE SADDLER surmised HB 152 would provide the
adjutant general authority to issue weapons to ASDF - should
he/she deem it necessary - without further statutory authority.
MR. DOEHL advised currently there is no need for statutory
authority should the adjutant general issue weapons.
REPRESENTATIVE SADDLER restated his request for an indeterminate
fiscal note attached to HB 152 because if the adjutant general
can issue weapons, the potential costs of the bill are not
realistically reflected [by zero Fiscal Note Identifier: HB152-
MVA-COM-03-10-17].
CHAIR TUCK questioned whether DMVA would be able to issue
armories if the costs thereof were not in the budget.
MR. DOEHL said no. He pointed out neither of the aforementioned
issues are germane to HB 152.
2:44:51 PM
REPRESENTATIVE RAUSCHER asked who wrote the bill.
CHAIR TUCK explained the bill originated from a combination of
sources: The Department of Law, Representative Tuck's office,
and Legislative Legal Services.
REPRESENTATIVE RAUSCHER directed attention to the bill on page
6, lines 4-14, which read [original punctuation provided]:
(a) To the extent funds are available, the adjutant
general may authorize the payment of up to 100 percent
of the cost of tuition and required fees for each
active member of the Alaska National Guard, the Alaska
State Defense Force, or the Alaska Naval Militia if
the member attends an educational, vocational, or
technical training school in this state. The adjutant
general may prioritize categories of education
benefits to encourage recruitment and retention of
Alaska National Guard, Alaska State Defense Force, or
Alaska Naval Militia members. Payments authorized
under this section for active members of the Alaska
National Guard, the Alaska State Defense Force, or the
Alaska Naval Militia continue so long as the active
member is a student in good standing in the
educational program or class and participates
satisfactorily in unit training activities.
REPRESENTATIVE RAUSCHER opined the aforementioned section does
not pertain to his understanding of the purpose of the bill.
CHAIR TUCK explained after House Bill 126 was passed last year,
it was recognized that other related provisions of Alaska
Statutes needed to be updated.
MR. DOEHL further explained holistic improvements to legislation
are used to better achieve the goals of DMVA and the organized
militia.
REPRESENTATIVE RAUSCHER asked how the bill provides for the
transfer of authority back to the governor.
MR. DOEHL said there is no formal transfer of power from the
governor to the adjutant general; at the time communications
with the governor or the governor's successor are restored,
power is automatically vested in the higher authority.
CHAIR TUCK, in further response, directed attention to the bill
on page 1, lines 8-14 and continuing to page 2, lines 1-7, which
read [in part]:
The governor's command is exercised through the
adjutant general, who shall carry out the policies of
the governor in military affairs. The adjutant
general represents the governor and shall act in
conformity with the governor's instructions. The
adjutant general shall exercise control and command of
the military department of the state. The adjutant
general shall adopt regulations that provide for the
organization, administration, and equipment of the
organized militia that are not contrary to federal law
or regulations [HAS COMMAND OF THE ALASKA NATIONAL
GUARD AND THE ALASKA NAVAL MILITIA WHILE THEY ARE NOT
IN ACTIVE FEDERAL SERVICE. THE GOVERNOR MAY ADOPT
NECESSARY REGULATIONS FOR THEM]. The Alaska National
Guard and the Alaska Naval Militia and their members
are subject to all federal laws and regulations
relating to the National Guard and Naval Militia of
the several states and territories and of the United
States.
2:49:00 PM
REPRESENTATIVE LEDOUX returned discussion to the current
authority of the adjutant general to provide guns and artillery.
MR. DOEHL restated there is currently no statutory prohibition
on issuing guns to ASDF. He advised issuing artillery would be
beyond any duties envisioned of ASDF.
REPRESENTATIVE LEDOUX, noting that the adjutant general can
currently issue guns, questioned the rationale for an
[indeterminate] fiscal note attached to HB 152.
MR. DOEHL said the bill would not have a fiscal impact.
2:50:26 PM
REPRESENTATIVE SADDLER remarked:
... My reading of this bill says that Section 11
clearly envisions facilitating issuance of small arms,
I assume weaponry, to members of the organized militia
... [which] includes [the] National Guard, [the]
Alaska Naval Militia, and the state defense force.
Currently, the National Guard already has weaponry, I
don't know about the naval militia, but I know that
the Alaska State Defense Force does not now have
weapons issued by the state whether new purchase or
surplus gear. So, by lowering the barrier to align
ASDF to not have to have an armory, this bill clearly
envisions issuing weapons. ... We have heard ... the
administration has sought to increase the staffing and
mission including the armed mission of the quasi
Eskimo scouts in Western Alaska, we had a request for
$210,000 to stand up the headquarters structure
necessary for three battalions of about 75 people
each. So, I think I can see ahead ... a desire and an
intent to arm these folks.
REPRESENTATIVE SADDLER continued to Section 12, which he said
authorizes the "attorney" general to prioritize educational
training, tuition, and fees for members of the organized
militia, for vocational, technical, and educational school to
encourage recruitment and retention. He opined these are powers
beyond the issue of the emergency delegation of power and are a
significant policy change sought to increase the size, scope,
cost, and risk of ASDF. He said he was "very uncomfortable
about this."
2:52:43 PM
REPRESENTATIVE SPOHNHOLZ made a motion to call for the question
on HB 152.
CHAIR TUCK asked Representative Spohnholz to temporarily delay
her motion.
REPRESENTATIVE REINBOLD asked Mr. Doehl whether he helped write
the bill.
MR. DOEHL said no.
REPRESENTATIVE REINBOLD asked for a list of states that "have
actually done this type of legislation."
MR. DOEHL said his research on the authority of the adjutant
general to place [militia] into state active duty included
Wisconsin and Illinois; regarding his understanding of the
regulatory authority, his research included California.
REPRESENTATIVE REINBOLD restated her request.
MR. DOEHL could not provide an "exhaustive list."
REPRESENTATIVE REINBOLD then asked for a few specific states.
MR. DOEHL said, "I believe at least, checking for consistency,
Wisconsin, Illinois, California are consistent with the
approaches we've delineated here. Also, on the emergency call
of authority for disasters, I believe Texas is."
REPRESENTATIVE REINBOLD returned attention to the bill on page
5, [beginning on line 31 and continuing to page 6, lines 1-2]
which read [in part]:
[PROCEEDS RECEIVED AS RENTAL OR OTHERWISE AT AN ARMORY
FROM NONMILITARY USE SHALL BE DEPOSITED IN THE GENERAL
FUND.]
REPRESENTATIVE REINBOLD asked why the aforementioned text would
be deleted.
MR. DOEHL responded the [text] would be deleted because it is
inconsistent with the [National Guard] Master Cooperative
Agreement under which the federal government pays 50-100 percent
of DMVA facilities' operating costs. The agreement requires
DMVA to apply rents received to reduce operating costs paid by
the federal government.
REPRESENTATIVE REINBOLD questioned whether DMVA is planning on
selling an armory, and if so, where the proceeds would go.
2:57:17 PM
MR. DOEHL explained there are 53 excess armories; after
divesture, there is a disposal process. However, excess
armories may be rented, as is referenced in the bill.
REPRESENTATIVE REINBOLD asked whether proceeds have previously
been deposited into the general fund, and for an explanation of
the change brought about by the bill.
MR. DOEHL acknowledged previous funds have gone to the general
fund erroneously, which then had to be reimbursed to the federal
government; the bill would comply with the rights and
obligations of the Master Cooperative Agreement.
REPRESENTATIVE REINBOLD surmised the funds from a sale or
"whatever" would now be given to the federal government.
MR. DOEHL said no; in fact, the bill does not address the
selling of armories, but addresses the rental of a facility.
Rental proceeds would be used on a pro rata basis to reduce the
federal reimbursement that pays for facility maintenance.
REPRESENTATIVE SADDLER directed attention to [the bill on page
7, lines 1-5] which read:
* Sec. 15. AS 26.05.660 is amended to read:
Sec. 26.05.660. Delegation by the governor. The
governor may delegate any authority vested in the
governor under the code of military justice, and
provide for the subdelegation of the authority, except
the powers given to the governor by AS 26.05.450 [AS
26.05.170 AND 26.05.450]
REPRESENTATIVE SADDLER questioned why the bill maintains the
right of the governor to convene general courts-martial.
MR. DOEHL said that authority is retained by the governor
because of its great significance.
REPRESENTATIVE SADDLER inquired as to whether questions about
arming, training, regulations, and activation for state duty are
less significant.
MR. DOEHL said no. He clarified that a singular act of a
general court-martial is deemed of significant importance;
however, ongoing decisions inherent to command "do not require
the governor's attention." In further response to
Representative Saddler about the importance of a general court-
martial, he said a general court-martial is the equivalent of a
felony trial and criminal court matter that could result in
incarceration.
REPRESENTATIVE SADDLER repeated his concerns and stated his
opposition to the bill.
3:02:59 PM
CHAIR TUCK announced that HB 152 was held over.
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