Legislature(1999 - 2000)
04/30/1999 03:28 PM House L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 183 - ALASKA PUBLIC UTILITIES COMMISSION
Number 0090
CHAIRMAN ROKEBERG announced the committee's first order of business
is HB 183, "An Act relating to the powers and duties of the chair
of the Alaska Public Utilities Commission; relating to membership
on the Alaska Public Utilities Commission; and relating to the
annual report of the Alaska Public Utilities Commission." The
chairman indicated he had intended to postpone the hearing on HB
183 because two committee members who wished to propose amendments
are absent. The chairman noted, however, he wishes to take the
testimony of the two witnesses who have signed up, and hold the
legislation over after that testimony. He informed the committee
no amendments or action would be taken up on HB 183 at this
hearing. Chairman Rokeberg requested the testimony of Douglas
Neeley in Glennallen.
Number 0122
DOUGLAS NEELEY, Copper Basin Sanitation Service Company, responded
via teleconference from Glennallen. Mr. Neeley commented he had
intended to listen to the discussion and the amendments. He
questioned if the committee planned to take any action at all on
this legislation today.
CHAIRMAN ROKEBERG responded in the negative. He noted the two
proposed amendments are from absent members. Representative
Murkowski had intended to offer a "clean-up" amendment recommended
by the Department of Law. Representative Brice had intended to
offer an amendment to remove the qualifications of office regarding
political affiliations [for commissioners].
REPRESENTATIVE HARRIS informed the chairman that Mr. Neeley's
concern is in relation to garbage deregulation, and the chairman
might wish to explain that this legislation is not the right
vehicle for that. He confirmed for the chairman that Mr. Neeley's
business is Copper Basin Sanitation Service Company.
CHAIRMAN ROKEBERG indicated the committee had received Copper Basin
Sanitation's letter and thanked Mr. Neeley. The chairman pointed
out that HB 183 does not speak to the refuse regulation issue. He
informed Mr. Neeley that the committee is in receipt of the latest
version of SB 133, which had originally taken up the refuse issue
by deleting it from the APUC [Alaska Public Utilities Commission].
However, as the chairman understands it, the latest version of SB
133 excludes those provisions and maintains the status quo. He
asked Ms. Seitz if that is correct.
Number 0272
JANET SEITZ, Legislative Assistant to Representative Rokeberg,
Alaska State Legislature, came forward as the aide to the House
Labor and Commerce Standing Committee. Ms. Seitz noted the latest
version of SB 133 the committee is in receipt of, Version K, does
contain reference to garbage-related services in the definition of
a public utility. She stated, "It does describe furnishing,
collection and disposal services of garbage, refuse, trash or other
waste material to the public for compensation; that is part of the
definition of a public utility contained in the latest draft of SB
133 that we have."
CHAIRMAN ROKEBERG confirmed, therefore, the commission would retain
its regulatory control. The chairman recommended Mr. Neeley obtain
a copy of SB 133, Version K, adopted that day by the Senate Finance
Standing Committee. Chairman Rokeberg believes SB 133 will
ultimately be the vehicle utilized. The chairman indicated the
committee is using HB 183 for coordination and to develop some
potential amendments; HB 183 may also be held as a possible back-up
bill. He questioned if Mr. Neeley had any further comments.
MR. NEELEY indicated his questions had been answered and thanked
the committee.
CHAIRMAN ROKEBERG asked Mr. Zobel in Anchorage if he had comments
or if he was present to listen and answer questions.
Number 0427
RON ZOBEL, Assistant Attorney General, Fair Business Practices
Section, Civil Division (Anchorage), Department of Law, testified
next via teleconference from Anchorage. He is one of the two
assistant attorney generals assigned to the APUC. Mr. Zobel
indicated he has a comment he had intended to make at the April 28
hearing that he thinks is now more important in retrospect. Mr.
Zobel said, "One of the things you've done by this bill is put in
Section 10 of the committee substitute [Version I] which amends
[AS] 42.05.171, provisions about an arbitrator." He indicated he
thinks the intention was to allow case hearing and proposed
decision making to be delegated to an arbitrator. Mr. Zobel said
his comment would also apply to the delegation to hearing officers.
[Section 10 of HB 183, Version I, reads:
* Sec. 10. AS 42.05.171 is amended to read:
Sec. 42.05.171. Formal hearings. A formal hearing
that the commission has power to hold may be held by or
before three or more commissioners, a hearing officer, or
an administrative law judge designated for the purpose by
the commission. In appropriate cases, a formal hearing
may be held before an arbitrator designated for the
purpose by the commission. The testimony and evidence in
a formal hearing may be taken by the commissioners, by
the hearing officer, [OR] by the administrative law
judge, or by the arbitrator to whom the hearing has been
assigned. A commissioner who has not heard or read the
testimony, including the argument, may not participate in
making a decision of the commission. In determining the
place of a hearing, the commission shall give preference
to holding the hearing at a place most convenient for
those interested in the subject of the hearing.]
MR. ZOBEL directed the committee's attention to the language in
existing law in Section 10 of Version I beginning on line 29, page
4, "A commissioner who has not heard or read the testimony,
including the argument, may not participate in making a decision of
the commission." That provision has been interpreted by some
commissioners to - and probably does - prevent the commission from
delegating the hearing of a case and the making of a proposed
decision to a hearing officer or an arbitrator. Mr. Zobel
indicated this procedure, however, is allowed under similar
provisions in AS 44.62.500 of the Administrative Procedure Act,
regarding decision in a contested case. He noted, however, the
Administrative Procedure Act does not apply to the APUC. [AS
42.62.500 read:
Sec. 44.62.500. Decision in a contested case. (a) If a
contested case is heard before an agency
(1) the hearing officer who presided at the hearing
shall be present during the consideration of the case
and, if requested, shall assist and advise the agency;
and
(2) a member of the agency who has not heard the
evidence may not vote on the decision.
(b) If a contested case is heard by a hearing
officer alone, the hearing officer shall prepare a
proposed decision in a form that may be adopted as the
decision in the case. A copy of the proposed decision
shall be filed by the agency as a public record with the
lieutenant governor and a copy of the proposed decision
shall be served by the agency on each party in the case
and the party's attorney. The agency itself may adopt the
proposed decision in its entirety, or may reduce the
proposed penalty and adopt the balance of the proposed
decision.
(c) If the proposed decision is not adopted as
provided in (b) of this section the agency may decide the
case upon the record, including the transcript, with or
without taking additional evidence, or may refer the case
to the same or another hearing officer to take additional
evidence. If the case is so assigned the hearing officer
shall prepare a proposed decision as provided in (b) of
this section upon the additional evidence and the
transcript and other papers that are part of the record
of the earlier hearing. A copy of the proposed decision
shall be furnished to each party and the party's attorney
as prescribed by (b) of this section. The agency may not
decide a case provided for in this subsection without
giving the parties the opportunity to present either oral
or written argument before the agency. If additional oral
evidence is introduced before the agency, an agency
member may not vote unless that member has heard the
additional oral evidence.]
Number 0562
MR. ZOBEL commented AS 44.62.500 has a section which allows
delegation to a hearing officer to hear the matter and to submit a
proposed decision. The agency in that instance can approve the
decision in its entirety without reading the whole transcript or
having attended the hearing. If the agency wants to modify the
decision, it has to read the record or take additional evidence.
Mr. Zobel indicated he thinks the sentence he has mentioned in the
existing APUC statute, "A commissioner who has not heard or read
the testimony, including the argument, may not participate in
making a decision of the commission.", would need to be altered
along the lines of the language in AS 42.62.500 if it is the
committee's intention to allow more efficiency by the commission
through delegation to hearing officers or arbitrators. Mr. Zobel
further indicated he might be able to provide possible language
early next week. He noted there has been previous talk at the
commission about delegating to hearing officers and that sentence
in the existing law is pointed to as inhibiting that; the
commissioner either has to be there or read the whole record, which
somewhat defeats the purpose of delegation to a hearing officer or
arbitrator. That completed Mr. Zobel's testimony.
Number 0659
CHAIRMAN ROKEBERG said he appreciated and agreed with Mr. Zobel's
comment. The chairman questioned if it might be possible for Mr.
Zobel to make a recommendation and even a draft amendment by the
committee's 3:15 p.m. meeting on Monday [May 3, 1999].
MR. ZOBEL indicated he could do so.
CHAIRMAN ROKEBERG indicated he thought an accompanying summary
explaining the situation would be very helpful, if it didn't cause
Mr. Zobel too much work. The chairman provided the committee's fax
number. Proceeding onward, the chairman questioned if the
committee is working from Version I.
MS. SEITZ confirmed the committee is working from Version I of HB
183 and has two pending amendments to this version. The committee
adopted Amendment 3 to Version I [adopted 4/28/99; labeled
1-LS0764\I.3, Cramer, 4/28/99] . Ms. Seitz confirmed that
Amendment 1 [offered and amended 4/28/99; labeled 1-LS0764\I.1,
Cramer, 4/28/99] and Amendment 2 [offered 4/28/99; labeled
1-LS0764\I.2, Cramer, 4/28/99] are both still before the committee.
Number 0741
REPRESENTATIVE HALCRO indicated the committee also still has
Amendment 8 to Version H offered at the Monday, April 26 hearing
[stated as "Friday"]. Representative Halcro noted the committee
had been waiting on the determination of constitutionality and now
has the opinion.
CHAIRMAN ROKEBERG asked Ms. Seitz to organize materials with the
committee in preparation for the Monday hearing [May 3]. He noted
there is Amendment 1 and commented Representative Murkowski has an
amendment to Amendment 1 which can be handled then.
MS. SEITZ commented Amendment 1 is marked I.1. She indicated
Amendment 2, marked I.2, was held by the chairman on April 28. It
is the amendment regarding rate charges. Ms. Seitz pointed out
there is also the corrected Amendment 8 [to Version H] from
Representative Halcro, which was being held for the legal opinion.
She confirmed this amendment concerns the appointment of the chair
and copies of the legal opinion are being distributed to the
committee. Additionally there is a new amendment, from
Representative Brice, relating to the political qualifications.
Number 0852
CHAIRMAN ROKEBERG stated the committee should be prepared to bring
these items forward. The chairman indicated he would like Ms.
Seitz to discuss the legal opinion on Amendment 8 with
Representative Halcro and Walt Wilcox [aide to the House Special
Committee on Utility Restructuring] to ensure this can be
addressed. Chairman Rokeberg requested Mr. Zobel's comments on
Amendment 1. The chairman confirmed Mr. Zobel and Representative
Murkowski had had a conversation regarding deletion of the
amendment language, "complexity of issues, or another reason", on
line 19 of the original written amendment. [Amendment 1, labeled
1-LS0764\I.1, Cramer, 4/28/99, as amended by the committee on
4/28/99, read:
Page 1, line 5, following ";":
Insert "relating to timely action by the Alaska
Public Utilities Commission;"
Page 3, line 26:
Delete "a new subsection"
Insert "new subsections"
Page 3, lines 28 - 30:
Delete ", the chair of the commission shall promptly
fix a date for hearing when a hearing is appropriate.
The hearing shall be without undue delay. The"
Insert "for which a hearing is clearly warranted,
the chair of the commission shall assign a priority
rating to the issue and promptly fix a date for hearing.
The hearing shall be expedited in accordance with the
priority rating. Regardless of the priority rating, a"
Page 4, following line 2:
Insert a new subsection to read:
"(c) Unless to do so would violate the due
process rights of a party, the commission shall
ensure that its dockets are closed in a timely
fashion and not delayed due to inaction, complexity
of issues, or another reason. Failure of a
commission member to comply with this subsection
constitutes grounds for removal from the commission
under AS 42.05.035. The chair of the commission
may dismiss a commission employee for failure to
comply with this subsection."]
Number 0955
MR. ZOBEL agreed with the view Representative Murkowski had
expressed at the previous hearing: this language would not allow
for any reason. The phrase "another reason" is particularly
troublesome, it is too broad; there is no reason for delay at all.
Mr. Zobel additionally commented he thinks the phrase, "Unless to
do so would violate the due process rights of a party,", is rather
superfluous. It is implied that the commission cannot violate due
process rights of a party. However, he said he has not tried to
rewrite this particular section. Mr. Zobel indicated one reason is
that these issues are in Jim Baldwin's [Assistant Attorney General,
Governmental Affairs Section, Civil Division (Juneau), Department
of Law] area of expertise.
Number 1024
CHAIRMAN ROKEBERG indicated his wish had been to take Mr. Zobel's
testimony for the committee's information so less time would have
to be spent at the May 3 hearing. The chairman repeated that
Representative Murkowski would be offering an amendment to the
amendment, and looking at the balance of that statement. He
confirmed no one else wished to testify on HB 183 and announced HB
183 would be held over for further action on Monday [May 3].
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