Legislature(2005 - 2006)BUTROVICH 205
04/22/2006 09:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB313 | |
| SB48 | |
| HB446 | |
| SB316 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 316 | TELECONFERENCED | |
| += | SB 313 | TELECONFERENCED | |
| += | SB 48 | TELECONFERENCED | |
| += | HB 446 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 316-COURT REVIEW OF STRANDED GAS DECISION
11:08:38 AM
CHAIR RALPH SEEKINS announced SB 316 to be up for consideration.
He said the intent today was to discuss proposed language so
that the bill could move forward. The committee did not expect
to move the bill out but the chairman hoped to do constructive
work on it. He said his draft would allow the Legislature to
view the contract and would allow a public citizen to challenge
the findings and determinations provided that the Legislature
authorized and approved the signing of the contract. If the
committee agreed on the draft, he would have it drawn up into a
committee substitute (CS) to be considered on the following
hearing date.
11:10:31 AM
CHAIR SEEKINS said as he reads the original bill, the challenge
could be made at the point where the decision was made to
execute the contract. There was nothing for the court to
consider until an action on the contract was made.
It appears that the Senate Judiciary Standing Committee is
trying to put one more step into the process before there could
be a judicial review, he stated. Any challenger to the contract
would legitimately try to determine whether or not the contract
was in the best fiscal interest of the state. The only party
that could possibly challenge a contract while it was in the
middle of the process would be someone who wanted to "high-
center" the contract and halt the process for political or
private reasons, which should not be allowed. The opportunity
for any challenge should be at the end of the process.
11:12:41 AM
CHAIR SEEKINS said he was also concerned that there be plenty of
opportunity to view the body of evidence that the commissioner
used to come to his conclusion. For example, currently the
commissioner has not released any preliminary findings and as a
result, none of the body of evidence, including the contract
currently under consideration, is a public document except for
the proprietary information identified in Section 310.
SENATOR GENE THERRIAULT said there is a category of documents
that are part of the deliberative process that can also be
withheld.
CHAIR SEEKINS said his concern was that every document that
would be discoverable in a legal challenge should be made
public.
11:15:16 AM
CHAIR SEEKINS directed the committee's attention to the current
Stranded Gas Act (SGA), page 21, line 8, and the term
"supporting financial, technical, market data." He said that
indicated that only the documents supporting a particular
decision are required to be disclosed. He passed out his
untitled draft and proposed that word "supporting" would be
deleted, thereby broadening the amount of documents that would
be discoverable.
SENATOR HOLLIS FRENCH noted there are two clear definitions of
the word "support." A government lawyer would lose his argument
that the only documents that get released are the ones favoring
his client. He said every single word is subject to contrasting
interpretations.
CHAIR SEEKINS asserted the importance of transparency and
inclusion regarding consideration of any contract.
SENATOR FRENCH pointed out in the same paragraph it states the
documents "considered by the commissioner" would be submitted
with the final findings and determination. A clever federal
government lawyer could contend that many of the documents were
not "considered," he stated.
CHAIR SEEKINS replied that the Legislature could only hold the
commissioner to those things that he actually considered.
11:21:00 AM
CHAIR SEEKINS said the intent was to make the bill as clear as
possible and to allow someone to examine the body of documents
that the commissioner used to come up with the final findings
and determination. At that point, the Legislature goes to work
and it becomes their responsibility to examine the contract to
ensure that it meets the terms of the SGA.
11:24:52 AM
CHAIR SEEKINS asked the committee whether they were in agreement
regarding the steps they want the process to go through.
They would make sure that the body of evidence that the
commissioner used to come up with his preliminary findings is
made public at the point that the preliminary findings are
signed. Then there would be a period of time of at least 30 days
for the legislative and public review. Then the commissioner
would close off public comment and within 30 days prepare a
summary of the public comment and legislative comment. He would
consolidate the body of evidence together and bring it to the
governor along with the contract. The governor would then
forward all of that to the Legislature.
11:27:07 AM
SENATOR FRENCH interrupted to ask whether the committee was
operating under the new [untitled] draft.
CHAIR SEEKINS said yes and read Section 43.82.430 as follows:
Sec. 43.82.430. Final findings, determination, and proposed
amendments; execution of the contract.
(a) Within 30 days after the close of the public comment
period under AS 43.82.410(4), the commissioner of revenue shall
(1) prepare a summary of the public comments received in
response to the proposed contract and the preliminary findings
and determination;
(2) after consultation with the commissioner of natural
resources, if appropriate, and with the pertinent municipal
advisory group established under AS 43.82.510, prepare a list of
proposed amendments, if any, to the proposed contract that the
commissioner of revenue determines are necessary to respond to
public comments;
(3) make final findings and a determination as to whether
the proposed contract and any proposed amendments prepared under
(2) of this subsection meet the requirements and purposes of
this chapter.
(b) After considering the material described in (a) of this
section and securing the agreement of the other parties to the
proposed contract regarding any proposed amendments prepared
under (a) of this section, if the commissioner determines that
the contract is in the long-term fiscal interests of the state,
the commissioner shall submit the contract to the governor.
SENATOR FRENCH noted for the people watching on television that
the chairman was reading the statute as it currently stands and
is suggesting no change to AS 43.82.430.
CHAIR SEEKINS agreed and said he just wanted to make it clear.
He read Section 435 as he proposed in his draft CS.
Sec. 43.82.435. Legislative authorization.
(a) The governor may transmit a contract developed under
this chapter to the legislature together with a request for
authorization to execute the contract.
(b) Concurrent with the submission of the contract and
request for authorization to execute the contract to the
legislature, the governor shall:
(1) submit the commissioner's final findings and
determinations and the financial, technical, market data,
including work papers, analyses, and recommendations of any
independent contractors used under AS 43.82.240, that were
considered by the commissioner to make the final findings and
determinations to the legislature; and
SENATOR FRENCH interrupted to ask to whom the final findings and
determinations would be submitted.
CHAIR SEEKINS said to the Legislature. He continued reading his
proposed language to the committee and clarified that there
would be 120 days after the execution of the contract for
someone to be able to bring a challenge.
11:31:43 AM
SENATOR CHARLIE HUGGINS reported that Chair Seekins' CS would
satisfy the concerns of his constituents.
SENATOR GUESS agreed with Senator Huggins. She asked whether the
law authorizing the contract is what would be challenged.
CHAIR SEEKINS explained that the challengeable part would be
that the contract entered into was not cohesive to the long-term
fiscal interest of the state.
SENATOR FRENCH compared Chair Seekins' proposed Section 440 with
the current AS 43.82.440 and said, "it looks as if a person
could challenge the enforceability of a contract executed under
a law authorizing the contract."
11:34:10 AM
CHAIR SEEKINS agreed to add that into his CS.
SENATOR FRENCH reiterated his earlier concern with changing the
focus of the legal contest from the findings and determination
of the commissioner to the findings and determinations forwarded
to the Legislature. He said he could not know for a certainty
that the committee wasn't "shrinking" the amount of discoverable
information.
CHAIR SEEKINS said he has struggled over that because it is
difficult to challenge the actions of the Legislature in passing
a law. If the Legislature were to determine that the contract
did not meet the requirements of the law, they could still
accept it because a new law would authorize it.
SENATOR HUGGINS said he heard Senator French say that the
language of the proposed CS denotes a narrowing of things that
would be available for people to challenge.
SENATOR FRENCH agreed that was his concern.
CHAIR SEEKINS said that it was not his intent to narrow the
scope of the challenge but to properly place it.
11:37:05 AM
CHAIR SEEKINS asserted under the old law there was a clumsy
situation that would allow a "high-centering" of a contract. He
advised the committee that he would submit his CS to the
drafters for their review and bring the bill up again. He held
SB 316 in committee.
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