Legislature(2021 - 2022)GRUENBERG 120
03/08/2022 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB387 | |
| SB71 | |
| HB291 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 387 | TELECONFERENCED | |
| += | SB 71 | TELECONFERENCED | |
| += | HB 291 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 71-COUNCIL ON ARTS: PLATES & MANAGE ART
3:11:41 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be CS FOR SENATE BILL NO. 71(FIN), "An Act relating to
special request registration plates celebrating the arts;
relating to artwork in public buildings and facilities; relating
to the management of artwork under the art in public places
fund; relating to the powers and duties of the Alaska State
Council on the Arts; establishing the Alaska arts and cultural
investment fund; and providing for an effective date."
3:12:50 PM
CHAIR KREISS-TOMKINS invited questions from committee members.
3:13:08 PM
REPRESENTATIVE CLAMAN expressed concern that Section 5 would
give discretion to the attorney general (AG) to deny the Alaska
State Council on the Arts (ASCA) new counsel if there was a
conflict of interest.
3:14:15 PM
CORI MILLS, Deputy Attorney General, Office of the Attorney
General, Department of Law, assured the committee that dealing
with conflicts of interest was nothing new to the Office of the
Attorney General, adding that the main manual had a policy on
it, titled the Rules of Professional Conduct. She explained
that under AS 44.23.020, the AG was to provide legal advice and
representation for all state agencies unless there was a
carveout. Even without the language in Section 5, she said, the
AG would be the legal representative for the council, which was
true for all state agencies. She concluded that the language in
Section 5 was "outside the norm" but acceptable, nonetheless.
REPRESENTATIVE CLAMAN sought to confirm that that the AG was not
thought of as a single law firm, consistent with the ethics
exception, as described by Ms. Mills.
MS. MILLS believed that was an accurate statement.
REPRESENTATIVE CLAMAN asked whether the Office of the Attorney
General would follow the language in Section 5 or the ethics
rules when determining whether ASCA should seek outside counsel.
MS. MILLS said the statute would weigh into it; however, there
was already an existing process by which the AG evaluated these
types of issues. She reiterated that the existing process was
an internal policy that reflected the Rules of Professional
Conduct, as well as consultation with client agencies.
REPRESENTATIVE CLAMAN asked whether the statutory language [in
Section 5] would change the normal process for identifying and
addressing a conflict of interest.
MS. MILLS said the AG's office would follow the existing
process, adding that the language in Section 5 would not be
viewed as being contrary to that.
REPRESENTATIVE CLAMAN considered a scenario in which the
governor intended to line-item veto ASCA's funding and
subsequently, the council wanted to seek legal counsel. He
asked whether there would ever be a situation in which the AG
would choose to keep the state entity as a client and instruct
the governor to seek outside council.
MS. MILLS said she had never seen that situation occur and
declined to speculate on the potential of it occurring in the
future.
REPRESENTATIVE CLAMAN indicated that he had asked the question
to emphasize that "when push comes to shove" in a conflicts
analysis, the governor would always be the AG's client.
3:21:39 PM
REPRESENTATIVE EASTMAN inquired about the legal implications of
Section 5 and how the language would impact DOL.
MS. MILLS replied that it wouldn't have a strong impact on DOL,
as there is already an existing process for ethics screening in
place. She noted that even if council had a quasi-independent
existence, it was still part of the state and acting on behalf
of the public. She reiterated that the language in Section 5,
subsection (b), was "out of the norm" in terms of other
statutes; nonetheless, it would not impact the AG's operation.
CHAIR KREISS-TOMKINS asked whether language in other sections of
statute was "boilerplate" in regard to the bill's intent.
MS. MILLS highlighted language in AS 44.23.020 that broadly
stated that the AG represented all state agencies.
Additionally, regarding public corporations, she said statutory
language typically indicated that the AG was the legal counsel.
She suggested that the second section of subsection (b) was
generally worded differently while subsection (a) was
"boilerplate."
CHAIR KREISS-TOMKINS asked whether Ms. Mills was aware of any
non-public corporation instances of this language.
MS. MILLS answered the Commercial Fisheries Entry Commission
(CFEC) and potentially some commissions that were not public
corporations. She understood that the AG's office represented
essentially all boards, commissions, and public corporations
except for the Alaska Railroad.
3:25:07 PM
REPRESENTATIVE EASTMAN inquired about the Alaska Railroad
exception.
MS. MILLS said the Alaska Railroad had its own legal counsel.
She noted that she did not promote that language, as she found
that consistency from DOL ensured consistency of legal advice
and opinion and cut down on inter-agency dispute. She opined
that having the advice come from the AG - unless there was a
conflict - was better for state government.
3:26:09 PM
REPRESENTATIVE CLAMAN inquired about the Rules of Professional
Conduct that Ms. Mills had referenced.
MS. MILLS said at the beginning of the Rules of Professional
Conduct, there was a section that addressed the scope.
REPRESENTATIVE CLAMAN asked whether she was referring to rule
1.2 Scope of Representation and Allocation of Authority Between
Client and Lawyer.
MS. MILLS clarified that it was before that in the discussion of
the scope of the rules themselves.
3:28:51 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 1, [labeled 32-
LS0310\W.1, Radford, 3/4/22], which read:
Page 2, line 7:
Delete "only on the first issuance and the"
Insert "on issuance and"
REPRESENTATIVE CLAMAN objected for the purpose of discussion.
3:28:55 PM
REPRESENTATIVE EASTMAN explained that Amendment 1 would replace
"only on the first issuance and the" with "on issuance and" to
remove any indication that there would be a second issuance,
third issuance, etcetera.
3:29:48 PM
TIM LAMKIN, Staff, Senator Gary Stevens, on behalf of Senator
Stevens, prime sponsor of SB 71, opined that the proposed
language would make no difference. He believed that if
Amendment 1 were adopted, the bill would likely secure
concurrence in the Senate.
CHAIR KREISS-TOMKINS inquired about the material effect of
Amendment 1.
3:30:55 PM
JEFFREY SCHMITZ, Director, Division of Motor Vehicles,
Department of Administration, expressed his concern about the
word "and" [after "issuance"] in the proposed language, as it
would suggest that the DMV would be collecting an additional fee
for replacement plates.
REPRESENTATIVE EASTMAN pointed out that the "and" in question
already existed in the current bill language.
MR. SCHMITZ maintained his concern about the word "and".
Nonetheless, he said the DMV would follow the legislative
intent, which he believed was to collect the fee one time upon
first issuance.
3:33:36 PM
REPRESENTATIVE CLAMAN disagreed with Mr. Schmitz's analysis. He
opined that the intent of the bill and the intent of Amendment 1
were aligned, which was for a fee to be collected one time upon
first issuance of a license plate. He argued that Amendment 1
wasn't necessary, as the existing bill language adequately
captured the intent.
CHAIR KREISS-TOMKINS agreed.
3:35:07 PM
MR. SCHMITZ clarified that the fee in question was specific to
the Alaska State Council on the Arts (ASCA). He acknowledged
that a replacement fee of $5 was charged for all replacement
plates; however, he reiterated that the replacement fee was
separate from the fee [collected on first issuance.]
3:35:45 PM
REPRESENTATIVE EASTMAN considered a scenario in which an
individual wanted to buy 3 commemorative plates for three
different vehicles. He asked how the current language would
impact that situation.
MR. SCHMITZ stated that the individual would pay the ASCA fee
for each vehicle.
REPRESENTATIVE CLAMAN shared his understanding that Section 1,
paragraph (3), was only referring to the ASCA fee of up to $50.
He suggested that "additional" should be inserted on page 2,
line 6, thereby reading "the additional fee shall be collected
only on the first issuance".
3:37:52 PM
REPRESENTATIVE CLAMAN moved Conceptual Amendment 1 to Amendment
1, which would delete all the language on lines 2-3 of the
proposed amendment and insert "additional" before "fee" on page
2, line 6 of SB 71, and delete "and the replacement" on page 2,
line 7, so the bill would read "the additional fee shall be
collected only on the first issuance of the special request
plates;".
REPRESENTATIVE EASTMAN was supportive of Conceptual Amendment 1.
CHAIR KREISS-TOMKINS objected for the purpose of discussion.
3:38:43 PM
REPRESENTATIVE KAUFMAN inquired about the interpretation of
paragraph (3) when the fiscal note was being drafted.
MR. LAMKIN declined to speak to the drafting of a fiscal note;
nonetheless, he understood that the intent was for the fee to be
paid once and only once.
REPRESENTATIVE EASTMAN shared his understanding that if an
individual had purchased the special plate, which was then
stolen, the individual could return to the DMV and obtain a
replacement plate for $5.
CHAIR KREISS-TOMKINS concurred with Representative Eastman's
analysis. He removed his objection to Conceptual Amendment 1 to
Amendment 1. There being no further objection, Conceptual
Amendment 1 to Amendment 1 was adopted.
REPRESENTATIVE CLAMAN removed his objection to Amendment 1, as
conceptually amended. There being no further objection,
Amendment 1 was adopted.
3:41:13 PM
REPRESENTATIVE EASTMAN moved to adopt [Amendment 2], [labeled
32-LS0310\W.2, Radford, 3/4/22], which read:
Page 1, lines 1 - 2:
Delete "relating to artwork in public buildings
and facilities;"
Page 2, lines 14 - 17:
Delete all material.
Renumber the following bill sections accordingly.
Page 3, lines 8 - 10:
Delete all material.
Renumber the following paragraph accordingly.
CHAIR KREISS-TOMKINS objected for the purpose of discussion.
3:41:19 PM
REPRESENTATIVE EASTMAN explained that Amendment 2 included a
title change, as well as the deletion of Section 2, subsection
(h), and Section 4, paragraph (7). He said the intent was to
maintain "the status quo" in terms of ASCA's responsibilities
regarding the relocation, disposition, and exchange of art.
3:42:38 PM
REPRESENTATIVE STORY asked for the rationale behind this
proposal.
REPRESENTATIVE EASTMAN opined that the council's expanded scope
of practice [Section 4, paragraph (7)] was unnecessary.
REPRESENTATIVE TARR stated her opposition to the proposed
amendment, explaining that the responsibilities in question were
in response to the chaotic situation in 2019. She believed that
ASCA was well-suited to carry out the responsibility of managing
works of art in different facilities.
3:44:54 PM
REPRESENTATIVE VANCE asked why ASCA was given the responsibility
of managing works of art.
3:45:42 PM
MR. LAMKIN opined that Amendment 2 would gut an important
component of the bill, which was to codify a mechanism for
managing artwork. He explained that ASCA was responsible for
acquisitioning art and shepherding it into public buildings and
new facilities. Further, in unforeseen events, he emphasized
the importance of clarifying a purview for the management of the
artwork itself at the end of a building's life. He conveyed
that the bill sponsor was not supportive of the proposed
amendment.
REPRESENTATIVE VANCE asked who was responsible for the artwork
in 2019.
MR. LAMKIN answered the Alaska Contemporary Art Bank.
REPRESENTATIVE VANCE asked whether the art was in limbo in 2019.
3:48:24 PM
BENJAMIN BROWN, Chair, Alaska State Council on the Arts,
explained the purpose of the Alaska Contemporary Art Bank in
further detail. He explained that currently, ASCA lacked the
ability to decide what to do with art from the Percent for Art
Program when a building was at the end of its useful life. He
indicated that SB 71 would grant ASCA that ability, but
Amendment 2 would remove it.
3:51:30 PM
REPRESENTATIVE KAUFMAN inquired about the value [of art] being
protected.
MR. BROWN shared his understanding that the Percent for Art
program investment was "hundreds of thousands of dollars;"
Additionally, he estimated that the Alaska Contemporary Art Bank
investment was just as much. He pointed out that as the state
was self-insured, the council had never been called upon to
provide that evaluation.
3:53:22 PM
REPRESENTATIVE EASTMAN withdrew Amendment 2.
3:53:46 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 3, [labeled 32-
LS0310\W.3, Radford, 3/4/22], which read:
Page 2, line 16, following "chapter":
Insert "that are located in a building or
facility scheduled for demolition"
Page 3, line 9, following "AS 35.27":
Insert "that are located in a building or
facility scheduled for demolition"
REPRESENTATIVE CLAMAN objected.
3:53:54 PM
REPRESENTATIVE EASTMAN suggested that Amendment 3 was intended
to narrow ASCA's scope of practice to artwork located in
buildings or facilities that were scheduled for demolition.
MR. BROWN expressed his opposition to Amendment 3 and maintained
his support for the current bill language.
MR. LAMKIN relayed the bill sponsor's objection to the proposed
amendment. He shared his belief that it would overly limit the
the scope of the council and negatively impact partnerships with
other state agencies.
3:58:15 PM
REPRESENTATIVE EASTMAN inquired about the bill sponsor's intent.
MR. LAMKIN said the intent was to designate the council as a
resource and partner to all state agencies and facilities that
house percent for art pieces.
3:59:06 PM
REPRESENTATIVE EASTMAN agreed with that sentiment; however, he
opined that "shall manage" had broader implications than
providing advice.
MR. LAMKIN contended that the language "shall manage" was
accurate, as in practice, the council worked in partnership with
agencies and facilities to manage the artwork commissioned under
the Percent for Art Program.
3:59:42 PM
REPRESENTATIVE CLAMAN maintained his objection.
3:59:47 PM
REPRESENTATIVE EASTMAN withdrew Amendment 3.
3:59:56 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 4, [labeled 32-
LS0310\W.4, Radford, 3/4/22], which read:
Page 3, lines 13 - 14:
Delete "The attorney general is the legal counsel
for the council."
Page 3, line 14:
Delete "shall"
Insert "may"
Page 3, line 17:
Delete "and with"
Insert ", without"
Page 3, lines 18 - 19:
Delete "The attorney general may not unreasonably
withhold approval."
REPRESENTATIVE CLAMAN objected.
4:00:00 PM
REPRESENTATIVE EASTMAN explained that Amendment 4 would remove
the designation of the AG as the legal counsel for ASCA.
Further, it would replace "shall" with "may", such that "the
attorney general may advise the council on legal matters."
Additionally, the proposed amendment would change the language
in Section 5, subsection (b) to read "The council may employ
temporary legal counsel for good cause without the approval of
the attorney general."
CHAIR KREISS-TOMKINS asked Ms. Mills to comment on Amendment 4.
4:01:42 PM
MS. MILLS said much of Amendment 4 would be a policy call.
Nonetheless, she opined that keeping Section 5, subsection (a)
in its current form would remain in-line with the statutory
language for other commissions and corporations. Regarding the
"may" versus "shall", she suggested that replacing "shall" with
"may" would be unclear.
MR. BROWN believed that the bill should remain unamended in its
current form.
4:03:48 PM
REPRESENTATIVE CLAMAN expressed his opposition to Amendment 4,
as it would give the council the ability to acquire its own
legal counsel without approval from the AG.
4:04:32 PM
REPRESENTATIVE VANCE directed attention to Section 5, lines 18-
19, and asked who would determine whether approval was
unreasonably withheld.
MS. MILLS shared her understanding that it would be decided
between the AG and the council.
REPRESENTATIVE VANCE inquired about legal impact of removing the
language "The attorney general may not unreasonably withhold
approval."
MS. MILLS understood the language to suggest that the AG should
act with good cause and account for the council's wishes.
REPRESENTATIVE VANCE concluded that the language in question was
intent language.
4:07:27 PM
REPRESENTATIVE CLAMAN opined that ultimately, the arbiter of
whether approval was unreasonably withheld would be the courts.
He pointed out that the language in question was common contract
language, which was often utilized in commercial contracts
between two parties with an ongoing relationship.
REPRESENTATIVE EASTMAN asked Representative Claman whether
Section 5, subsection (b) was necessary.
REPRESENTATIVE CLAMAN believed that ASCA should be required to
request approval from the AG's office to seek outside counsel,
as utilizing outside counsel would cost the state more money.
He believed that the AG would provide more effective legal
counsel and save the state money in the long run.
4:12:19 PM
REPRESENTATIVE EASTMAN withdrew Amendment 4.
4:12:27 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 5, [labeled 32-
LS0310\W.5, Radford, 3/4/22], which read:
Page 1, line 4, following "Arts;":
Insert "and"
Page 1, lines 4 - 5:
Delete "; and providing for an effective date"
Page 4, line 12:
Delete all material.
CHAIR KREISS-TOMKINS objected.
4:12:32 PM
REPRESENTATIVE EASTMAN explained that Amendment 5 would change
the effective date.
CHAIR KREISS-TOMKINS asked the bill sponsor which effective date
he would prefer.
MR. LAMKIN suggested July 1, 2022, adding that the sponsor was
not supportive of Amendment 5.
4:14:09 PM
REPRESENTATIVE TARR asked whether [the effective date] needed to
be retroactive.
MR. LAMKIN said the bill sponsor did not intend to pursue
retroactivity.
4:15:11 PM
The committee took a brief at-ease.
4:15:29 PM
REPRESENTATIVE EASTMAN withdrew Amendment 5.
4:15:51 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 6, [labeled 32-
LS0310\W.6, Radford, 3/4/22], which read:
Page 2, line 16, following the first occurrence of
"of":
Insert "portable"
Page 3, line 9, following the first occurrence of
"of":
Insert "portable"
CHAIR KREISS-TOMKINS objected.
4:15:55 PM
REPRESENTATIVE EASTMAN explained that Amendment 6 would limit
ASCA's scope of practice to "portable" works of art.
MR. BROWN reiterated that the existing language was intended to
give the council the ability to address a statutory void,
thereby allowing ASCA to shepherd the creation of artwork under
the Percent for Art Program. He expressed his opposition to
Amendment 6.
4:19:04 PM
REPRESENTATIVE KAUFMAN asked how "portable" would be defined.
REPRESENTATIVE EASTMAN replied that any art from the Alaska
Contemporary Art Bank would suffice.
CHAIR KREISS-TOMKINS maintained his objection.
4:19:53 PM
REPRESENTATIVE EASTMAN maintained his belief that SB 71 would
give ASCA too much authority in regard to the management of
artwork in facilities and state agencies.
4:20:12 PM
A roll call vote was taken. Representatives Eastman voted in
favor of the adoption of Amendment 6. Representatives Tarr,
Story, Claman, Vance, Kaufman, and Kreiss-Tomkins voted against
it. Therefore, Amendment 6 failed by a vote of 1-6.
4:20:55 PM
CHAIR KREISS-TOMKINS moved to adopt [Conceptual Amendment 1] to
SB 71, such that "2021" would be deleted and replaced with
"2022" on page 4, line 12. There being no objection,
[Conceptual Amendment 1 to SB 71] was adopted. He invited final
comments on the bill, as amended.
4:21:50 PM
REPRESENTATIVE STORY expressed her appreciation for the bill.
REPRESENTATIVE VANCE expressed her concern about creating an
additional "sub-fund" of the general fund (GF). Nonetheless,
she expressed her overall support for the bill.
REPRESENTATIVE CLAMAN expressed his support for the bill.
4:24:33 PM
REPRESENTATIVE CLAMAN moved to report CSSB 71, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, HCS CSSB
71(STA) was moved from the House State Affairs Standing
Committee.