Legislature(2017 - 2018)GRUENBERG 120
02/27/2018 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB386 | |
| HB272 | |
| HB260 | |
| HB231 | |
| HB188 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 231 | TELECONFERENCED | |
| += | HB 272 | TELECONFERENCED | |
| += | HB 260 | TELECONFERENCED | |
| *+ | HB 386 | TELECONFERENCED | |
| += | HB 188 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 231-CFEC: BD. SALARY;STAFF CLASSIFIED SERVICE
11:16:31 AM
CHAIR STUTES announced that the next order of business would be
HOUSE BILL NO. 231, "An Act relating to the Alaska Commercial
Fisheries Entry Commission; and providing for an effective
date."
11:16:49 AM
REPRESENTATIVE NEUMAN moved to adopt the proposed committee
substitute (CS) for HB 231, labeled 30-GH1053\D, Bullard,
2/14/18 [Version D] as the working document.
CHAIR STUTES advised that the motion could not be adopted as the
committee lacked a quorum.
[The committee proceeded as though the motion had been
withdrawn.]
11:17:35 AM
The committee took a brief at ease.
11:17:58 AM
REPRESENTATIVE EDGMON moved to adopt the proposed committee
substitute (CS) for HB 231, labeled 30-GH1053\D, Bullard,
2/14/18, as the working document. There being no objection,
Version D was before the committee.
[CHAIR STUTES listed the individuals available to testify.]
11:19:11 AM
MATT GRUENING, Staff, Representative Louise Stutes, Alaska State
Legislature, introduced himself.
11:19:16 AM
MINTA MONTALBO, Special Assistant, Office of the Commissioner,
Department of Administration (DOA), introduced herself.
11:19:23 AM
MR. GRUENING stated that the proposed committee substitute (CS)
for HB 231, Version D, represents efforts between the bill
sponsor, the administration, representatives of the United
Fishermen of Alaska (UFA), and the Commercial Fisheries Entry
Commission (CFEC). He stated that the changes were a consensus
of all parties.
11:19:50 AM
MR. GRUENING referred to page 1, line 9, to Section 1 of HB 231.
He stated that this reduced the number of commissioners on the
Commercial Fisheries Entry Commission (CFEC) from three to two.
He offered to explain more on this later. The next change
occurred on page 1, lines 13-14, which specifies that a vacancy
on the commission does not impair the ability of a single
commissioner to exercise all powers of the commission. Since
the proposed CS for HB 231 removed one commissioner, if a
vacancy occurs, this gives the commissioner to exercise the full
authority of the commission in adjudicatory proceedings,
transactions, and day to day activities.
MR. GRUENING directed attention to page 2, lines 3-5, which
specifies that a single member of the commission constitutes a
quorum. He stated that another change will be necessary in
proposed Section 3. On page 2, line 3-6, the proposed CS for HB
231 read, "A single member [TWO MEMBERS] of the commission
constitutes [CONSTITUTE] a quorum for the transaction of
business, for the performance of a duty, or for the exercise of
a power of the commission.
MR. GRUENING explained that the intent was for this to apply for
the transaction of business and the performance of duty when
there was not a vacancy; but only when a vacancy occurred would
it include the exercise of a power of the commission. He stated
that further clarification was necessary to clarify which
instances the single commissioner can exercise all powers of the
commission and when the commissioner can transact business and
perform duties. The sponsor wanted to avoid an instance in
which there was not a vacancy and the commissioner was able to
exercise the full powers on an adjudication simply when the
other commissioner was not available. However, the sponsor
would like a single commissioner to be able to transact business
or perform his/her duties for day-to-day routine work.
11:22:23 AM
REPRESENTATIVE NEUMAN related his understanding that a single
commissioner would have the authority to sign off on matters.
He expressed concern that the Governor would have the power to
keep a position vacant and therefore one commissioner would have
significant power.
MR. GRUENING said that he had not had any discussions with the
administration; however, he understood the concern.
11:23:22 AM
MR. GRUENING directed attention to proposed Section 4, on page
2, lines 6-10, AS 16.43.060 of HB 231. He read from the
document titled "CS HB 231 Explanation of Changes," which read
as follows [original punctuation provided]:
Section 4: Modified from original bill. This section
maintains the current statutory salary at Range 27 for the
commissioner serving as chair, as the chair is expected to
perform additional duties and functions. The original bill
reduced the chair's salary to a Range 24. The salary range
for the second commissioner continues to be reduced from
Range 27 to 24, as in the original bill.
MR. GRUENING explained that the chair would have direct
oversight of the other commissioner and would have the final
say. Further, the chair would absorb the duties of the
executive director. He further explained that the it seemed
appropriate to leave the chair at a range 27, since the chair
would have direct oversight, but to set the second commissioner
at a range 24.
11:24:06 AM
REPRESENTATIVE EASTMAN asked how the chair is currently selected
and if that would be changed with the proposed HB 231.
MR. GRUENING responded that the current chair is selected by the
governor, but the current bill does not change that process.
CHAIR STUTES responded that is correct.
11:24:39 AM
MR. GRUENING said there were no changes to Section 5. He then
directed attention to proposed Section 6, on page 2, lines 15-19
to proposed AS 16.43.119(f), which read as follows [original
punctuation provided]:
(f) In case of a tie vote between commissioners in an
adjudicatory proceeding, the decision of the hearing
officer is the final administrative decision of the
commission subject to review by a superior court under
AS 44.62 (Administrative 22 Procedure Act).
MR. GRUENING explained that the process. Initially a hearing
officer issues a decision and if the party seeking an
adjudication appeals the decision it goes to the commissioner.
In the event the two commissioners have a 1-1 tie, this language
would allow for the original hearing officer's decision to
become the decision of the commission. He clarified that this
was due to removing one of the commissioners in statute.
11:25:33 AM
MR. GRUENING stated that there was no change to Section 8 of the
proposed CS for HB 231, Version D. This section matched Section
5, related to removing employees from exempt service, he said.
MR. GRUENING said that there were no changes to Section 9 in the
proposed CS for HB 231, Version D.
11:25:48 AM
MR. GRUENING directed attention to proposed Section 10, to page
3, lines 14-16 of Version D. He explained that this language
was added to satisfy Article 1, Section 15 of Alaska State
Constitution, which specifies that the state cannot
retroactively reduce someone's pay under the impairment of
contract's provision. The current commissioner's salaries will
remain at the current amount, but any reappointments would be
made at the lower amount.
11:26:36 AM
REPRESENTATIVE EASTMAN asked for clarification in the case that
the governor appointed a new chair if the former chair's salary
would be reduced.
MR. GRUENING answered that he would defer to the Commercial
Fisheries Entry Commission to respond.
11:27:39 AM
FATE PUTMAN, Commissioner designee; Chairman, Commercial
Fisheries Entry Commission (CFEC), Alaska Department of Fish &
Game (ADF&G) introduced himself.
REPRESENTATIVE EASTMAN related his understanding that the
current Chair of the CFEC serves at a range 27. If the governor
decided to appoint a new chair, would the former chair become a
range 24.
MR. PUTMAN related his understanding that the governor appoints
the Chair of the CFEC to serve a two-year term. Once the two-
year term is up, the governor could appoint a new chair and that
person would serve at a range 24.
11:28:19 AM
REPRESENTATIVE EASTMAN further asked whether it because the
governor has appointed someone new as a chair that creates this
change or if it was because that former chair's term was up, and
the person was being reappointed to a new term.
MR. PUTMAN answered no; that it was because the two-year term of
that chairmanship was finished, even though the person could
still serve on the commission for a four-year term. The
chairmen serve for two years but could then be designated as a
non-chairman once the chairmanship has run out and the person
would serve as commissioner, he said.
11:29:00 AM
REPRESENTATIVE NEUMAN asked for additional clarification on
changes for exempt positions. He further asked for the staff
level of the CFEC and whether this would affect them.
MR. GRUENING responded yes. He deferred to Mr. Putman.
11:30:04 AM
REPRESENTATIVE NEUMAN related his understanding that one of the
sections [Section 5] would remove employees from exempt service.
He asked whether the two [commissioners] would be exempt and how
many staff the CFEC has and if they would be exempt.
MR. PUTMAN responded that the two commissioners would remain in
the exempt service and the staff would be classified, meaning
unionized, if HB 231 was adopted.
11:30:39 AM
REPRESENTATIVE NEUMAN said an issue raised has been the backlog
of lawsuits and settlements. This bill would reduce the number
of commissioners from three to two. He asked whether there was
there a proposal or other remedy to rectify this issue.
MR. PUTMAN stated that it is the intent of the chairman and
staff to resolve the outstanding cases at the CFEC. He
estimated the backlog at 13 cases pending from 25-35 years ago.
He emphasized his intent to review and resolve these cases
through settlement with the potential appellees. He explained
that when the cases are pending each of the appellees receive an
interim-use permit, which allows them to fish until their cases
are resolved. He reported that two cases have been resolved.
He reiterated his intent to resolve the remaining 13 cases
within the next year or two.
11:32:00 AM
REPRESENTATIVE NEUMAN raised the matter of authority over staff.
He asked whether the bill changes the authority of the chair.
He asked for further clarification on how staff would be managed
and the structure of the CFEC as it falls under the ADF&G.
MR. PUTMAN stated that when employees move from exempt to
classified status, they are protected through the collective
bargaining agreement; however, exempt employees can be hired and
fired at will. Classified employees are subject to a process,
including progressive discipline before they can be terminated.
He stated that the chairman will serve as the executive director
and he/she would make determinations about hiring and
recommendations for firing of underperforming staff.
11:33:26 AM
MR. GRUENING said he had finished with the changes.
11:33:42 AM
CHAIR STUTES referred to an earlier comment on a 1-1 tie. She
pointed out that there was an appeal process and the party can
appeal to the superior court.
11:34:10 AM
MS. MONTALBO gave a section-by-section analysis of HB 231. She
directed attention to Section 1, which would reduce the number
of commissioners appointed to the Commercial Fisheries Entry
Commission (CFEC) from three to two, she said.
MS. MONTALBO directed attention to Section 2, to AS
16.43.030(c), which would allow a single commissioner to
exercise the powers and duties of the commission, when there is
a vacancy on the commission.
MS. MONTALBO directed attention to Section 3, which will need to
be amended, as Mr. Gruening previously mentioned but for now
this change addresses the need to establish a quorum of one
commissioner.
MS. MONTALBO directed attention to Section 4, which would amend
AS 16.43.060, which would provide that the member serving as
chair will be paid a step in Range 27. It would also adjust the
salary range from 27 to 24 for the other commissioner.
11:35:06 AM
MS. MONTALBO directed attention to Section 5, which would amend
AS 16.43.080(a), by removing language placing employees of the
commission in the exempt service.
MS. MONTALBO directed attention to Section 6, which adds a new
subsection (f) to AS 16.43.110, which would provide that tie
votes between commissioners will be settled by the hearing
officer.
MS. MONTALBO directed attention to Section 7, which would amend
AS 16.43.960(d) to allow for cause hearings to be conducted
before one commissioner and a hearing officer.
11:35:40 AM
MS. MONTALBO directed attention to Section 8, which repeals AS
39.25.110(11)(D). She referred to the statute text being
repealed under subparagraph (D) of AS 39.25.110(11), which read
as follows [original punctuation provided]:
Sec. 39.25.110. Exempt service. Unless otherwise
provided by law, the following positions constitute
the exempt service and are exempt from the provisions
of this chapter and the rules adopted under it:
(11) the officers and employees of the following
boards, commissions, and authorities:
(A) [Repealed, Sec. 13 ch 43 SLA 1994];
(B) Alaska Permanent Fund Corporation;
(C) Alaska Industrial Development and Export
Authority;
(D) Alaska Commercial Fisheries Entry Commission;
(E) Alaska Commission on Postsecondary Education;
(F) Alaska Aerospace Corporation;
(G) [Repealed, Sec. 23 ch 11 SLA 2013].
MS. MONTALBO mentioned that change goes along with transferring
employees from exempt service to classified service.
11:36:08 AM
MS. MONTALBO directed attention to Section 9, which would add
transition language to uncodified law, which stipulates
commission staff members will be appointed to classified
services upon the bill's effective date; and if the classified
position has a lower rate of pay, a staff member's salary will
be held at the rate received in exempt service until such time
as the classified rate meets it.
MS. MONTALBO directed attention to Section 10, which adds an
applicability clause to uncodified law to stablish that salary
changes outlined in Section 4 of this bill will apply to
commissioners appointed after the bill's effective date.
MS. MONTALBO directed attention to Section [11], which sets
effective date as immediate.
11:37:02 AM
REPRESENTATIVE EDGMON asked if there was any scenario in which a
hearing officer could act as a tie breaker.
MR. GRUENING offered his belief that the answer was no. He
described the current process, such that the hearing officer
makes an initial review, issues a decision, which is forwarded
to the [CFEC] commissioners who make an adjudication. He said
there was not any process in which the hearing officer casts a
final vote in a tiebreaker. He explained at that point it would
be decided by the superior court.
11:38:02 AM
REPRESENTATIVE EDGMON offered his belief that it would violate
the chain of due process, if that were to occur.
11:38:12 AM
REPRESENTATIVE EASTMAN said he noticed that it has been
customary for courts and even this committee to have an odd
number of members to resolve the potential of tie votes. He
asked why not just go to one commissioner.
MR. GRUENING responded that only having one commissioner would
result in only one point of view, which could lead to room for
abuse. He said that there was a certain value to having more
than one commissioner since the second commissioner could raise
a different point of view. He characterized it as being a
little "heavy handed" to have only one commissioner set in
statute.
11:39:23 AM
CHAIR STUTES opened public testimony on HB 231 and after first
determining no one wished to testify, closed public testimony on
HB 231. She asked to set HB 231 aside.
[HB 231 was held over.]