04/04/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB168 | |
| HB1 | |
| HB6 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 161 | TELECONFERENCED | |
| += | HB 168 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 1 | TELECONFERENCED | |
| += | HB 6 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 4, 2011
1:09 p.m.
MEMBERS PRESENT
Representative Steve Thompson, Vice Chair
Representative Wes Keller
Representative Lance Pruitt
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Carl Gatto, Chair
Representative Bob Lynn
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 168
"An Act requiring the amount of the security given by a party
seeking an injunction or order vacating or staying the operation
of a permit affecting an industrial operation to include an
amount for the payment of wages and benefits for employees and
payments to contractors and subcontractors that may be lost if
the industrial operation is wrongfully enjoined."
- MOVED CSHB 168(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 1
"An Act stating a public policy that allows a person to choose
or decline any mode of securing health care services."
- HEARD & HELD
HOUSE BILL NO. 6
"An Act authorizing the governor to remove or suspend a member
of the Board of Regents of the University of Alaska for good
cause; and establishing a procedure for the removal or
suspension of a regent."
- MOVED CSHB 6(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 161
"An Act requiring that all information in a declaration of
candidacy, letter of intent, or nominating petition for a
candidate for elective state executive and state and national
legislative office is open to public inspection."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 168
SHORT TITLE: INJUNCTION SECURITY: INDUSTRIAL OPERATION
SPONSOR(S): REPRESENTATIVE(S) FEIGE
02/23/11 (H) READ THE FIRST TIME - REFERRALS
02/23/11 (H) JUD
02/25/11 (H) BILL REPRINTED 2/24/11
03/21/11 (H) JUD AT 1:00 PM CAPITOL 120
03/21/11 (H) Heard & Held
03/21/11 (H) MINUTE(JUD)
03/23/11 (H) JUD AT 1:00 PM CAPITOL 120
03/23/11 (H) <Bill Hearing Canceled>
03/30/11 (H) JUD AT 1:00 PM CAPITOL 120
03/30/11 (H) Scheduled But Not Heard
04/04/11 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 1
SHORT TITLE: POLICY FOR SECURING HEALTH CARE SERVICES
SPONSOR(S): REPRESENTATIVE(S) GATTO, LYNN
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) HSS, JUD
03/01/11 (H) HSS AT 3:00 PM CAPITOL 106
03/01/11 (H) Scheduled But Not Heard
03/08/11 (H) HSS AT 3:00 PM CAPITOL 106
03/08/11 (H) Heard & Held
03/08/11 (H) MINUTE(HSS)
03/15/11 (H) HSS AT 3:00 PM CAPITOL 106
03/15/11 (H) Moved CSHB 1(HSS) Out of Committee
03/15/11 (H) MINUTE(HSS)
03/16/11 (H) HSS RPT CS(HSS) 2DP 3NR
03/16/11 (H) DP: DICK, KELLER
03/16/11 (H) NR: SEATON, MILLER, HERRON
04/01/11 (H) JUD AT 1:00 PM CAPITOL 120
04/01/11 (H) Heard & Held
04/01/11 (H) MINUTE(JUD)
04/04/11 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 6
SHORT TITLE: REMOVING A REGENT
SPONSOR(S): REPRESENTATIVE(S) GRUENBERG
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) EDC, JUD
02/11/11 (H) EDC AT 8:00 AM CAPITOL 106
02/11/11 (H) Heard & Held
02/11/11 (H) MINUTE(EDC)
02/21/11 (H) EDC AT 8:00 AM CAPITOL 106
02/21/11 (H) Moved CSHB 6(EDC) Out of Committee
02/21/11 (H) MINUTE(EDC)
02/23/11 (H) EDC RPT CS(EDC) 5DP
02/23/11 (H) DP: P.WILSON, SEATON, KAWASAKI, FEIGE,
DICK
03/21/11 (H) JUD AT 1:00 PM CAPITOL 120
03/21/11 (H) Heard & Held
03/21/11 (H) MINUTE(JUD)
03/23/11 (H) JUD AT 1:00 PM CAPITOL 120
03/23/11 (H) Scheduled But Not Heard
04/04/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE ERIC FEIGE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 168.
TINA KOBAYASHI, Chief Assistant Attorney General - Statewide
Section Supervisor
Oil, Gas & Mining Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 168.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 168.
KAREN SAWYER, Staff
Representative Carl Gatto
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Addressed HB 1 on behalf of Representative
Gatto, one of the bill's joint prime sponsors.
SIGNE ANDERSON, Chief Assistant Attorney General - Statewide
Section Supervisor
Commercial/Fair Business Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 1.
JON SHERWOOD
Medicaid Special Projects
Medicaid and Health Care Policy
Division of Health Care Services
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 1.
PATRICK LUBY, Advocacy Director
AARP Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 1.
TED MADSEN, Staff
Representative Max Gruenberg
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Addressed HB 6 on behalf of the sponsor,
Representative Gruenberg.
JEAN MISCHEL, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 6.
JUDY BOCKMAN, Assistant Attorney General
State Ethics Attorney
Opinions, Appeals, & Ethics
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 6.
ACTION NARRATIVE
1:09:19 PM
VICE CHAIR STEVE THOMPSON called the House Judiciary Standing
Committee meeting to order at 1:09 p.m. Representatives
Thompson, Gruenberg, Holmes, and Keller were present at the call
to order. Representative Pruitt arrived as the meeting was in
progress. Representatives Gatto and Lynn were excused.
HB 168 - INJUNCTION SECURITY: INDUSTRIAL OPERATION
1:09:45 PM
VICE CHAIR THOMPSON announced that the first order of business
would be HOUSE BILL NO. 168, "An Act requiring the amount of the
security given by a party seeking an injunction or order
vacating or staying the operation of a permit affecting an
industrial operation to include an amount for the payment of
wages and benefits for employees and payments to contractors and
subcontractors that may be lost if the industrial operation is
wrongfully enjoined."
1:11:58 PM
REPRESENTATIVE ERIC FEIGE, Alaska State Legislature, sponsor, to
briefly recap, indicated that HB 168 would establish in statute
language similar to that of Rule 65(c) of the Alaska Rules of
Civil Procedure in order to address lawsuits involving resource
development projects, specifically those wherein a party seeks a
restraining order, preliminary injunction, or order vacating or
staying the operation of a permit that affects an industrial
operation, [thereby essentially] requiring the court, when
setting the amount of the required security bond, to consider
the costs associated with that restraining order, preliminary
injunction, or order vacating or staying the operation of a
permit.
REPRESENTATIVE HOLMES noted that a memorandum in members'
packets dated March 21, 2011, from Legislative Legal and
Research Services indicates that if HB 168 is interpreted as
requiring the security bond to include an amount for wages,
benefits, and contract payments, then the bill might also be
interpreted as changing a court rule [because currently the
court may consider including amounts for those items in a
security bond but isn't required to]. She asked whether it's
the sponsor's intention to require that the security bond
include amounts for wages and benefits and contract payments.
REPRESENTATIVE FEIGE said, "[The] intent of the bill is to make
sure that the court at least includes that in their
consideration for the security amount; ... I don't believe it
directs ... them to impose that, particularly, but it does ...
ask that they consider that in the ...."
REPRESENTATIVE HOLMES sought clarification that the bill would
not require the court to include those amounts.
REPRESENTATIVE FEIGE said, "Correct."
REPRESENTATIVE GRUENBERG said, "With that clarification, that
there's not to be any change in the court rule but simply an
admonition, in the judge's discretion, that we'd like that to be
considered, then I don't think a court rule [change] is ...
required, and I feel much more comfortable with the bill."
REPRESENTATIVE FEIGE concurred with Representative Gruenberg's
interpretation.
REPRESENTATIVE GRUENBERG characterized HB 168 as being in line
with Rule 65(c).
1:16:26 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1,
labeled 27-LS0395\B.2, Bailey, 3/29/11, which read:
Page 1, line 10:
Delete "determined by the court"
Insert "the court considers proper"
REPRESENTATIVE KELLER objected.
REPRESENTATIVE GRUENBERG explained that Amendment 1 provides for
language tracking that of Rule 65(c), and so could further
clarify that the bill is intended to do exactly the same thing
as that court rule.
REPRESENTATIVE FEIGE concurred.
REPRESENTATIVE KELLER offered his understanding, though, that
the term, "determination" constitutes a final judgment, and
expressed a preference for retaining the phrase, "determined by
the court", considering it to be "tighter."
REPRESENTATIVE HOLMES explained that that term, as used in the
bill, doesn't in any way refer to any sort of final judgment,
and instead simply means that the court shall decide what amount
the security bond should be for. Amendment 1 would not change
the meaning of the bill, does not constitute a substantive
change, and would instead simply allow the bill to track the
aforementioned court rule. Adoption of Amendment 1 would also
clarify that the legislature is not trying to change that court
rule, she ventured.
REPRESENTATIVE KELLER predicted that adoption of Amendment 1
would then allow people to make the argument that the bill isn't
necessary because [the situations that are of concern to the
sponsor] would be covered under the court rule. He then sought
clarification from the Department of Law regarding what the
effect of adopting Amendment 1 would be.
1:22:55 PM
TINA KOBAYASHI, Chief Assistant Attorney General - Statewide
Section Supervisor, Oil, Gas & Mining Section, Civil Division
(Juneau), Department of Law (DOL), said she agrees with
Representative Holmes's summation that because the language of
Amendment 1 more closely tracks the language of the court rule,
its adoption would clarify that the proposed statute would not
change the court rule, that the discretion would be left
entirely up to the court. In response to a question, she
offered her belief that under Amendment 1's proposed new
language - "the court considers proper" - the court would simply
continue following its current procedure.
REPRESENTATIVE GRUENBERG observed that the dictionary, which the
courts normally look to, in part defines the term, "determine"
as meaning to find out or come to a decision about something via
investigation, reasoning, or calculation.
REPRESENTATIVE FEIGE, in response to a question, concurred that
that was the meaning he intended when initially including the
phrase, "determined by the court" in HB 168.
REPRESENTATIVE GRUENBERG posited that Amendment 1's proposed new
language merely restates that intent, thereby removing all
question regarding what the bill does.
REPRESENTATIVE KELLER indicated that he still has concerns about
the meaning of Amendment 1's proposed new language.
1:25:51 PM
REPRESENTATIVE HOLMES reiterated that she doesn't consider
Amendment 1 to be effecting a substantive change. Instead, she
ventured, Amendment 1's proposed new language is just another
way of saying what the bill already says, and pointed out that
the bill's sponsor is in agreement. It is seemingly being
argued that the language currently in the bill should be kept
because it means something different than Amendment 1's proposed
new language and that which is currently in the court rule, but
if that's really the case, and it really does mean something
different, then by not adopting Amendment 1, it means that the
bill would indeed be changing a court rule - thereby requiring
an affirmative two-thirds vote. The closer the language of the
court rule is tracked, she opined, then the more likely it is
that the bill isn't going to get struck down as having
inappropriately effected a court rule change. In conclusion,
she urged adoption of Amendment 1.
REPRESENTATIVE KELLER mentioned that he simply didn't want to
change the bill contrary to what the sponsor wants. He then
removed his objection to the motion to adopt Amendment 1.
VICE CHAIR THOMPSON, noting that there were no further
objections, announced that Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG asked the sponsor to consider, as the
bill moves forward, possibly changing it in order to ensure that
its proposed AS 09.40.230(c) would apply fairly to both parties
in a lawsuit; proposed subsection (c) currently reads:
(c) The existence of security under (b) of this
section does not
(1) prohibit a person who is wrongly enjoined or
restrained from obtaining relief that may be available
to that person; or
(2) limit the amount that a party may recover in
the action.
VICE CHAIR THOMPSON questioned how the portion of a security
bond that reflects lost wages and benefits would be distributed
to employees.
1:31:09 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), explained that if a security bond is posted to protect
the interests of a company that's alleging potential lost wages,
and if that security bond is then forfeited, the court would pay
that bond amount to the party that was enjoined, but the court
wouldn't have any way of knowing who the company should be
reimbursing for lost wages - the decision of who to reimburse
would be left up to the company that received the forfeited
bond.
VICE CHAIR THOMPSON questioned whether a company could simply
pocket that money and not reimburse its employees for wages.
MR. WOOLIVER acknowledged that a company could do that. Again,
the court isn't going to have any of the information necessary
to address the distribution of funds, and so it must be left up
to the receiving party to appropriately reimburse its employees
and subcontractors.
REPRESENTATIVE GRUENBERG ventured that certain types of trusts
and specific court actions could probably be utilized to
mitigate the potential for an enjoined/restrained industrial
operation to abuse the system.
MR. WOOLIVER mentioned that the apportioning of a forfeited
security bond could get somewhat complicated and has the
potential of engendering further litigation.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 168.
1:36:38 PM
REPRESENTATIVE KELLER moved to report HB 168, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 168(JUD) was
reported from the House Judiciary Standing Committee.
The committee took an at-ease from 1:37 p.m. to 1:40 p.m.
HB 1 - POLICY FOR SECURING HEALTH CARE SERVICES
1:40:07 PM
VICE CHAIR THOMPSON announced that the next order of business
would be HOUSE BILL NO. 1, "An Act stating a public policy that
allows a person to choose or decline any mode of securing health
care services." [Before the committee was CSHB 1(HSS), as
amended on 4/1/11.]
1:40:17 PM
REPRESENTATIVE PRUITT moved to adopt the proposed committee
substitute (CS) for HB 1, Version 227-LS0006\B, Bailey, 4/1/11,
as the working document.
REPRESENTATIVE GRUENBERG objected.
1:40:46 PM
KAREN SAWYER, Staff, Representative Carl Gatto, Alaska State
Legislature, on behalf of Representative Gatto, one of the
bill's joint prime sponsors, explained that Version B
incorporates an amendment made to CSHB 1(HSS) during the bill's
last hearing. Under that amendment - which altered both
proposed AS 44.99.130(a) and the title - the word, "choose" was
replaced with the word, "accept", and the word, "offered" was
added. The proposed state policy under Version B now says in
part, "a person has the right to accept or decline any offered
mode of obtaining health care services".
REPRESENTATIVE GRUENBERG removed his objection.
VICE CHAIR THOMPSON, noting that there were no further
objections, announced that Version B was before the committee.
MS. SAWYER, to briefly recap, explained that HB 1 pertains to
the federal Patient Protection and Affordable Care Act (PPACA),
and offered her belief that the PPACA is going to mandate that
all individuals have qualifying healthcare insurance or pay a
tax penalty. Specifically, HB 1 is proposing to establish a
state policy that a person has the right to accept or decline
any offered mode of obtaining healthcare services without
penalty or threat of penalty. She also noted that a change made
in a prior committee specifies that as used in proposed
AS 44.99.130, the term, "penalty" does not mean liability for
the cost of healthcare services.
VICE CHAIR THOMPSON, offering his understanding that the bill is
intended to address the issue of [healthcare] insurance,
expressed dissatisfaction that the bill's language instead
focuses on healthcare services, and characterized this
discrepancy as confusing.
MS. SAWYER indicated that the bill was written as it was in
order to specifically address provisions of the PPACA.
REPRESENTATIVE HOLMES, offering her understanding that the
stated goal of the bill is to ensure that no one be required to
have healthcare insurance, pointed out that that's not what the
language of the bill actually says. Unintended consequences,
therefore, could result from passage of HB 1.
MS. SAWYER, relaying that HB 1 is based on model legislation
produced by the American Legislative Exchange Council (ALEC) and
being used by other states, agreed to research the issue
further. In response to a question, she said HB 1 was written
as if the PPACA is going to be found to be constitutional.
REPRESENTATIVE HOLMES pointed out, though, that if the PPACA is
found to be constitutional, HB 1 would be preempted, and if the
PPACA is found to be unconstitutional, then HB 1 won't be
necessary. Either way, isn't it that the bill will have no
actual effect?
MS. SAWYER offered her understanding that over 40 other states
thus far have either passed or are considering passing similar
legislation. The hope is that "all off this" will illustrate
that a number of states disagree that the federal government has
the right to mandate that a person either have healthcare
insurance or pay a tax penalty.
1:48:44 PM
SIGNE ANDERSON, Chief Assistant Attorney General - Statewide
Section Supervisor, Commercial/Fair Business Section, Civil
Division (Anchorage), Department of Law (DOL), concurred that if
the PPACA is found to be constitutional, federal preemption
would be an issue, but relayed that she was not prepared at this
point in time to say that the bill would have no effect at all.
REPRESENTATIVE HOLMES pointed out that regardless of whether the
PPACA is found to be unconstitutional, if passed, HB 1 would
still be in effect and therefore could still have unintended
consequences, particularly given that its language broadly
refers to healthcare services in general. If the bill is
intended as a statement of disagreement over provisions of the
PPACA, Alaska is already a party in the federal lawsuit, Florida
et al v. United States Department of Health and Human Services,
and so what more of a statement of disagreement than that is
necessary?
REPRESENTATIVE GRUENBERG asked why the bill, via Section 1, is
proposing to add a short title to uncodified law. He offered
his understanding that except in situations involving interstate
compacts and uniform Acts, providing for a short title was just
not done. He asked whether the [joint prime sponsors] would
object to deleting Section 1 of HB 1.
MS. SAWYER, noting [the joint prime sponsors'] absence, relayed
that she would be unable to speak for [them] on this issue at
this time.
REPRESENTATIVE GRUENBERG expressed a preference for not
including a short-title provision. Observing, then, that
proposed AS 44.99.130(b)(2) says that the proposed state policy
may not impair a contract right that provides healthcare
services, he asked whether any federal law requiring a person to
have or purchase healthcare insurance would simply become part
of [employment] contracts as an "implied-in-law" provision,
thereby rendering HB 1's proposed state policy inapplicable.
MS. ANDERSON - noting that under Alaska's insurance laws, such a
requirement by the state would be implied in [employment]
contracts - relayed that due to her nescience regarding federal
jurisprudence, she is unable to say whether such would also be
the case with federal law.
REPRESENTATIVE GRUENBERG surmised, then, that that issue still
needs clarification, particularly if the PPACA does contain such
a requirement.
REPRESENTATIVE HOLMES asked whether the Department of Health and
Social Services has any concerns that HB 1 would have a negative
impact on other federal programs such as Medicaid or Medicare.
1:57:07 PM
JON SHERWOOD, Medicaid Special Projects, Medicaid and Health
Care Policy, Division of Health Care Services, Department of
Health and Social Services (DHSS), said he is unable to speak to
the question of whether Medicare would be impacted, because it's
a federal program that the DHSS is not involved in the
administration of, but with regard to the question of whether
the bill would impact other state, and state and federal
programs - such as Medicaid - he said he'd specifically asked
the Department of Law (DOL) whether the exemption provided for
via proposed AS 44.99.130(b)(1) would be adequate for the DHSS's
purposes, including its child support enforcement efforts - a
linked requirement for certain assistance programs - and the
DOL assured him that the exemption was adequate for the purpose
of allowing the DHSS to continue administering its programs. In
response to another question, he said it was his understanding
that the PPACA's tax penalty would apply to someone who doesn't
have health insurance or some other means of obtaining
healthcare - such as through the Indian Health Service (IHS),
for example - and that that's why the bill uses [the phrase,
"mode of obtaining health care services"].
REPRESENTATIVE HOLMES shared her concern that regardless of the
joint prime sponsors' intent, the language of the proposed state
policy could be interpreted as allowing for something that's
contrary to public policy or current law.
VICE CHAIR THOMPSON, reiterating his concern that the proposed
state policy doesn't specifically reference healthcare
insurance, again characterized this lack as confusing.
REPRESENTATIVE GRUENBERG questioned whether the bill isn't
simply stating legislative intent.
MS. SAWYER said she is unable to speak to whether that's what
the drafter intended when he chose to address [the joint prime
sponsors' concerns about the PPACA] via the proposed state
policy.
REPRESENTATIVE GRUENBERG said that's how he is interpreting the
bill, and is therefore questioning how, as a practical matter,
[the proposed state policy] would be applied and whether it
establishes a statutory right.
MR. SHERWOOD indicated that because of the exemption laid out in
proposed AS 44.99.130(b)(1) and because the programs offered by
[the DHSS] are generally authorized via statute, the DHSS would
not be bound by HB 1's proposed state policy, and this is why
the DHSS submitted a zero fiscal note for HB 1.
2:07:01 PM
REPRESENTATIVE GRUENBERG asked what the joint prime sponsors
intend for the bill to actually do.
MS. SAWYER, in response, said the joint prime sponsors don't
believe an individual should be mandated by the federal
government to purchase a particular product, and instead believe
that to then penalize that individual for not doing so would be
another error.
REPRESENTATIVE GRUENBERG pointed out, though, that it's the
federal courts that are responsible for addressing the
provisions of the PPACA and any constitutional questions that
arise. Given that under the Supremacy Clause, the state is
required to follow federal mandates, wouldn't the joint prime
sponsors' beliefs regarding the PPACA be better addressed via a
house joint resolution urging the federal government to change
the PPACA, or urging the state to challenge the provisions of
the PPACA? "I don't think that this has any authority -- we
can't ... have the kind of effect on federal law and the federal
Constitution that you're saying you want this bill to have," he
concluded.
MS. SAWYER offered [the joint prime sponsors' belief] that
healthcare insurance isn't something the federal government
should be mandating, that that duty instead lies with the state.
To address the concern about the language of the proposed state
policy possibly being interpreted as allowing for something
that's contrary to public policy or current law, she noted that
proposed AS 44.99.130(c)(2) defines the term, "mode of
obtaining" in part as meaning directly purchasing healthcare
services from a healthcare provider.
2:11:17 PM
PATRICK LUBY, Advocacy Director, AARP Alaska, stated that the
AARP opposes HB 1. He then offered his belief that individuals,
businesses, and government entities/programs that have, offer,
or administer a healthcare insurance plan, end up picking up the
shifted healthcare costs incurred by the uninsured. Not
complying with the provisions of the PPACA will only allow this
practice of cost-shifting to continue, and for this reason, the
AARP is requesting a "No" vote on HB 1. In response to a
question, he offered his belief that the possible benefits
afforded by the provisions of the PPACA won't be realized unless
everyone participates - that's the whole purpose of group
healthcare insurance; the more people who have healthcare
insurance, the less healthcare services and healthcare insurance
will cost everybody. In response to other questions, he said he
agrees that everyone should be mandated to have healthcare
insurance, but acknowledged that to some extent, cost-shifting
also occurs when particular individuals - regardless of whether
they already have healthcare insurance - require
expensive/extensive healthcare services.
REPRESENTATIVE KELLER suggested that because the AARP offers
supplemental Medicare insurance, Mr. Luby has a conflict of
interest.
REPRESENTATIVE HOLMES pointed out, though, that those on
Medicare would be considered to already have healthcare
insurance and thus wouldn't be required under the PPACA to
purchase more healthcare insurance, either through the AARP or
elsewhere.
2:17:32 PM
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 1, and announced that
HB 1 would be held over.
REPRESENTATIVE KELLER offered his belief that under HB 1's
proposed state policy, a person employed by a company that
provides its employees with healthcare services would have the
right to either accept or decline such services without penalty
or threat of penalty. In conclusion, he said he would like the
legislature to establish the right policy for Alaska and its
citizens.
[HB 1, Version B, was held over.]
HB 6 - REMOVING A REGENT
2:19:56 PM
VICE CHAIR THOMPSON announced that the final order of business
would be HOUSE BILL NO. 6, "An Act authorizing the governor to
remove or suspend a member of the Board of Regents of the
University of Alaska for good cause; and establishing a
procedure for the removal or suspension of a regent." [Before
the committee was CSHB 6(EDC); left pending from the hearing on
March 21, 2011, was the motion to adopt the proposed committee
substitute (CS) for HB 6, Version 27-LS0027\T, Mischel, 2/25/11,
as the working document; included in members packets was a new
proposed committee substitute (CS) for HB 6, Version 27-
LS0027\R, 3/25/11.]
2:20:11 PM]
REPRESENTATIVE PRUITT moved to adopt the proposed CS for HB 6,
Version 27-LS0027\R, 3/25/11 as the working document.
REPRESENTATIVE HOLMES objected for the purpose of discussion.
2:20:46 PM
TED MADSEN, Staff, Representative Max Gruenberg, Alaska State
Legislature, on behalf of the sponsor, Representative Gruenberg,
explained that Version R incorporates three changes. Proposed
AS 14.40.155(a)(3) now uses the phrase, "an accusation" rather
than the phrase "a complaint"; this new language conforms to
that used by the Department of Law (DOL) with regard to the
state's personnel board. Proposed AS 14.40.155(g)(1) now
includes the additional wording of, "that results in a
recommendation of removal under AS 39.52.410(b)(3)"; this
additional language should ensure that only the most serious of
such violations may constitute good cause for removal. And
proposed AS 14.40.155(g)(4)(B) now includes the additional
wording of, "for an extended period of time"; this additional
wording should ensure that an inability to serve for just one
meeting, for example, wouldn't constitute grounds for removal.
REPRESENTATIVE HOLMES removed her objection.
VICE CHAIR THOMPSON, noting that there were no further
objections, announced that Version R was before the committee.
MR. MADSEN, to briefly recap, explained that HB 6 has been
introduced in response to an incident that occurred back in
2007, when a member of the Board of Regents of the University of
Alaska was indicted on many counts of fraud and embezzlement of
federal funds [but refused to resign his position as regent].
Inquiries by various legislative committees at the time revealed
that the Board of Regents didn't have a procedure in place by
which to remove a regent. To date, the Board of Regents has yet
to adopt such a procedure. House Bill 6 would insulate the
university from any cloud of suspicion, and ensure that the
university remains free from political pressure. Under HB 6, a
regent could only be removed or suspended for good cause.
2:24:23 PM
REPRESENTATIVE KELLER referred to a proposed amendment included
in members' packets that read [original punctuation provided]:
Page 2 line 5
Delete all language and insert
05 (1) clarify that the governor may remove a regent
for good cause, or a determination that the good of
the university requires it;
REPRESENTATIVE KELLER noted that currently the bill authorizes
the governor to remove a regent only for "good cause", with that
concept then being defined in terms of actions undertaken by the
regent, and asked why the bill wasn't written such that the
governor could simply remove a regent if he/she thinks doing so
would be good for the university. With some other boards, for
example, members serve at the pleasure of the governor.
REPRESENTATIVE GRUENBERG, speaking as the sponsor, explained
that the University of Alaska was set up as a separate
constitutional entity, with its Board of Regents being different
than other boards or commissions, which fall under the purview
of the executive branch. Under Article III, Section 26, of the
Alaska State Constitution, the members of those other boards and
commissions may be removed as provided by law. [Under Article
VII, Section 3, of the Alaska State Constitution, regents are
also appointed by the governor and subject to legislative
confirmation, but in contrast, that constitutional provision
doesn't directly address the removal of a regent and instead
mandates that the Board of Regents formulate policy in
accordance with law. Again, the Board of Regents has yet to
exercise] this inherent constitutional authority to establish a
policy for removing a regent for good cause, and so the only
option currently is for the legislature to conduct a formal
impeachment proceeding, but such proceedings, in addition to
being cumbersome, are not practical given that the legislature
meets for only part of the year. He offered his understanding
that members' packets include a legal opinion to this effect.
REPRESENTATIVE GRUENBERG, referring, then, to the proposed
amendment, said he is concerned that it would subject the Board
of Regents to potential political pressure and political
interpretation regarding what would constitute "the good of the
university" in the eyes of the governor, particularly given that
in the Alaska State Constitution, the university has been set
apart from the executive branch of government. The proposed
amendment would therefore be subject to constitutional challenge
and likely be found unconstitutional, he predicted.
REPRESENTATIVE KELLER asked of Legislative Legal and Research
Services whether, if the committee were to choose to allow, as a
matter of policy, for the removal of a regent by the governor
for the good of the university, that would pass constitutional
muster, and whether there is currently a way to remove a regent
because of some wrong that the regent is accused of committing.
2:31:01 PM
JEAN MISCHEL, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency (LAA),
ventured that impeachment would be one way of removing a regent,
and offered her belief that currently the governor has the
implied authority to remove any regent, and that nothing in
current case law or the Alaska State Constitution prohibits the
governor from removing a regent under the governor's inherent
appointment authority. The legislature's options are to either
clarify that point in statute and risk a constitutional
challenge over separation of power, or change Article VII,
Section 3, of the Alaska State Constitution to allow for the
removal of a regent as provided by law.
VICE CHAIR THOMPSON asked whether the governor supports HB 6.
MS. MISCHEL relayed that she wasn't able to say.
2:33:28 PM
JUDY BOCKMAN, Assistant Attorney General, State Ethics Attorney,
Opinions, Appeals, & Ethics, Civil Division (Anchorage),
Department of Law (DOL), relayed that she wasn't able to say,
either.
VICE CHAIR THOMPSON asked whether passage of HB 6 would provide
the governor with the immediate authority to suspend a regent
and have that suspension remain in effect until the regent is
cleared in a hearing.
MS. BOCKMAN said she was unable to say.
REPRESENTATIVE GRUENBERG offered his belief that passage of HB 6
would provide that authority. [Under proposed AS 14.40.155(b),]
the governor could remove a regent for good cause, [with
proposed AS 14.40.155(g) defining what would constitute good
cause]; some examples are felony convictions, or malfeasance or
nonfeasance in office, including an inability to serve [for an
extended period of time. Under proposed AS 14.40.155(a)], the
governor, after providing notice and an opportunity for a
hearing, could suspend a regent while final disposition on
certain issues is pending; one example would be a felony
indictment. With regard to suspensions, either the governor or
the regent could request a hearing, which would be conducted by
the Office of Administrative Hearings.
REPRESENTATIVE GRUENBERG, regarding the question of whether the
governor supports HB 6, mentioned that the previous
administration had assisted in drafting a previous iteration of
the bill, and that no one from the current administration has
expressed concern about HB 6.
2:37:27 PM
REPRESENTATIVE KELLER asked Representative Gruenberg whether he
would be amenable to altering the bill such that it would
provide the governor with a means of removing a regent for the
good of the university, or whether he would prefer to keep the
bill's current limitation of removing a regent only for good
cause.
REPRESENTATIVE GRUENBERG offered his belief that from both a
policy perspective and a constitutional-law perspective, there
should be specific guidelines set out in the bill rather than
just a vague and standard-less delegation of authority. The
language in the proposed amendment - "the good of the
university" - goes beyond what he would be comfortable with, he
relayed, because adoption of such language would allow the
governor to impose his/her political will simply because he/she
disapproves of certain decisions made by the Board of Regents -
for example, how many football scholarships to provide for. It
would therefore be unwise to adopt such vague language, he
opined, surmising that it would probably also be
unconstitutional.
REPRESENTATIVE GRUENBERG pointed out that even proposed AS
14.40.155(g)(4) - which currently lists malfeasance or
nonfeasance in office as one meaning of the term, "good cause" -
further outlines in its subparagraphs (A)-(E) what would
constitute malfeasance or nonfeasance in office, and regardless
that some of those items are subjective, a nexus is required.
In other words, there must be a finding that the regent had
either done something or failed to do something and that that
action or failure to act was connected with the duty of the
regent.
REPRESENTATIVE KELLER indicated a preference for ensuring that
the legislature, along with the executive branch, be able to
provide input regarding the university and its Board of Regents.
REPRESENTATIVE GRUENBERG expressed a preference for setting up
some sort of procedure now, regardless that it may not yet be
perfect, that would allow for the removal a regent for good
cause. Doing something now would ensure that the legislature
isn't put in the same position it found itself in a few years
ago, when a regent was indicted on criminal charges but refused
to resign his position.
REPRESENTATIVE KELLER - mentioning that he wouldn't be moving
the proposed amendment because he agrees that it's too broad -
requested that the bill not be reported from committee at this
time. He indicated, however, that he would be amenable to
reporting the bill from committee if that was the vice chair's
preference.
2:44:47 PM
REPRESENTATIVE KELLER then made a motion to adopt [Conceptual
Amendment 1], which read [original punctuation provided]:
Page 2, line 14
after the word "suspend"
Add
14 ...with or without pay....
REPRESENTATIVE PRUITT objected for the purpose of discussion.
REPRESENTATIVE KELLER explained that [Conceptual Amendment 1]
would address situations in which the governor wishes to suspend
a regent without pay.
MR. MADSEN relayed that information he's been provided with
indicates that regents do not receive pay for serving on the
Board of Regents but instead receive per diem when traveling to
meetings, and since a suspended regent wouldn't be attending any
meetings during the period of suspension, he/she wouldn't be
entitled to per diem.
REPRESENTATIVE KELLER withdrew [Conceptual Amendment 1].
REPRESENTATIVE KELLER then mentioned that he would not be
offering another proposed amendment he'd had drafted [that would
also have provided for the removal of a regent for the good of
the university].
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 6.
2:46:57 PM
REPRESENTATIVE GRUENBERG moved to report the proposed CS for
HB 6, Version 27-LS0027\R, Mischel, 3/25/11, out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE KELLER objected, expressing a preference that
more research be conducted on the bill before it's reported from
committee.
REPRESENTATIVE GRUENBERG, in response, relayed that he would
continue working on the bill to try to address members' concerns
about it.
2:49:01 PM
A roll call vote was taken. Representatives Pruitt, Thompson,
Gruenberg, and Holmes voted in favor of reporting the bill from
committee. Representative Keller voted against it. Therefore,
CSHB 6(JUD) was reported out of the House Judiciary Standing
Committee by a vote of 4-1.
2:49:43 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:50 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB168 Proposed Amendment B.2 03-29-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 168 |
| HB1 CS Version B 04-01-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 1 |
| HB6 CS Version R WORK DRAFT 03-25-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 1 03-21-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 2 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 3 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Explanation of Changes Version T to R 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |