Legislature(2015 - 2016)BARNES 124

04/04/2016 03:15 PM LABOR & COMMERCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved HCS CSSB 125(RES) Out of Committee
-- Public Testimony <Time Limit May Be Set> --
Heard & Held
-- Public Testimony <Time Limit May Be Set> --
Heard & Held
-- Public Testimony <Time Limit May Be Set> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
**Streamed live on AKL.tv**
            SB 125-LEGISLATIVE MEMBERS OF AGDC BOARD                                                                        
3:23:01 PM                                                                                                                    
CHAIR OLSON announced  that the first order of  business would be                                                               
CS  FOR SENATE  BILL  NO. 125(RES),  "An  Act adding  legislative                                                               
nonvoting  members  to  the  board of  directors  of  the  Alaska                                                               
Gasline Development Corporation."                                                                                               
3:23:31 PM                                                                                                                    
SENATOR MIA  COSTELLO, Alaska State Legislature,  speaking as the                                                               
sponsor, informed  the committee  [HCS CSSB  125(RES)] is  a bill                                                               
that strengthens  and diversifies the board  of directors (board)                                                               
for the  Alaska Gasline Development Corporation  (AGDC), which is                                                               
the  state's primary  representative in  the Alaska  LNG project,                                                               
and will  be the focal point  for policy decisions in  the coming                                                               
years.   She said the  bill would facilitate communication  and a                                                               
teamwork  approach  between  the  board and  the  legislature  by                                                               
adding three legislators  as nonvoting members to  the board, one                                                               
from  the  Senate,  one  from  the House,  and  one  from  either                                                               
minority caucus.   The bill  also ensures the original  intent of                                                               
the legislature  by reserving four  out of the five  public seats                                                               
on  the  board for  appointees  with  expertise in  natural  gas,                                                               
pipeline  construction,  finance,  project management,  or  other                                                               
relevant  experience.    Senator   Costello  stated  that  having                                                               
legislators  on  a  board  as important  as  AGDC  would  provide                                                               
perspective, institutional  knowledge, and continuity.   She read                                                               
from  a   memorandum  provided  in  the   committee  packet  from                                                               
Legislative  Legal Services,  Legislative  Affairs Agency,  dated                                                               
3/30/16, and signed by Emily Nauman, as follows [in part]:                                                                      
     Given  the split  in how  other states  treat nonvoting                                                                    
     legislative  members,  perhaps  nothing can  be  relied                                                                    
     upon to divine the outcome in this state.                                                                                  
SENATOR COSTELLO then  referred to a ruling in  South Carolina in                                                               
2013 that upheld  legislators having an ex-officio  role on state                                                               
boards and commissions [document not  provided].  She opined that                                                               
legislators   serving    in   nonvoting    positions   alleviates                                                               
constitutional concerns, and pointed  out that precedent has been                                                               
established  by  the fact  that  legislators  currently serve  on                                                               
state boards  and commissions, including state  corporations such                                                               
as the Knik  Arm Bridge and Toll Authority,  the Alaska Aerospace                                                               
Corporation, the  Alaska Seafood Marketing Institute,  the Alaska                                                               
Commission  on Postsecondary  Education, the  Alaska Health  Care                                                               
Commission,  the  Alaska  Criminal Justice  Commission,  and  the                                                               
Alaska Tourism  Marketing Board.   She urged for  the committee's                                                               
3:27:07 PM                                                                                                                    
WESTON  EILER,  staff  to  Senator  Mia  Costello,  Alaska  State                                                               
Legislature,  on  behalf  of Senator  Costello,  paraphrased  the                                                               
sectional analysis for  SB 125, Version S,  as follows: [original                                                               
punctuation provided]                                                                                                           
     Section  1:  Amends  AS 31.25.020(a),  (Alaska  Gasline                                                                    
     Development  Corporation),   Governing  body.   Adds  a                                                                    
     member  of  the  House,  appointed by  the  Speaker,  a                                                                    
     member  of   the  Senate,   appointed  by   the  Senate                                                                    
     President and a member  of the minority caucus jointly-                                                                    
     appointed  by  the  presiding  officers,  as  nonvoting                                                                    
     members to the AGDC Board.                                                                                                 
     Section  2:  Amends  AS 31.25.020(b),  (Alaska  Gasline                                                                    
     Development  Corporation),   Governing  body.  Requires                                                                    
     four  of   the  five  public  board   members  to  have                                                                    
     qualifications  in natural  gas pipeline  construction,                                                                    
     operation   and  marketing;   finance;  large   project                                                                    
     management; or other  expertise and experience relevant                                                                    
     to the corporation.                                                                                                        
     Section  3:  Amends  AS 31.25.020(d),  (Alaska  Gasline                                                                    
     Development   Corporation),   Governing  body.   States                                                                    
     legislative members of the board  may not be reimbursed                                                                    
     or compensated by  AGDC for their service  on the board                                                                    
     and related costs.                                                                                                         
     Section  4:   Adds  new  subsection   AS  31.25.020(e),                                                                    
     (Alaska Gasline  Development Corporation),  Meetings of                                                                    
     the board.  Specifies legislative members of  the board                                                                    
     may participate in all  board activities except voting.                                                                    
     Legislative members may not  be excluded from executive                                                                    
     sessions, and  may not be  appointed for a  term longer                                                                    
     than two years.                                                                                                            
     Section  5:  Amends  AS 31.25.030(a),  (Alaska  Gasline                                                                    
     Development  Corporation),   Meetings  of   the  board.                                                                    
     Conforming language outlining  that only voting members                                                                    
     of the  AGDC Board may  be selected to serve  as chair,                                                                    
     secretary  or treasurer.  Also defines  a  quorum as  a                                                                    
     majority of voting members of the board.                                                                                   
     Section  6:  Amends  AS 31.25.040(a),  (Alaska  Gasline                                                                    
     Development  Corporation),  Administration of  affairs;                                                                    
     program directors.  Conforming language  that Sectional                                                                    
     Analysis - SB  125 2 allows only voting  members of the                                                                    
     board  to  manage  the  assets   and  business  of  the                                                                    
     corporation  and  that  voting  members  will  delegate                                                                    
     supervision  of the  administration of  the corporation                                                                    
     to the executive director.                                                                                                 
MR.  EIHER  noted  that  conforming changes  are  also  found  in                                                               
Sections  7, 8,  and  9,  and Section  11  provides an  immediate                                                               
effective date.                                                                                                                 
3:29:14 PM                                                                                                                    
REPRESENTATIVE  JOSEPHSON  directed  attention  to  a  memorandum                                                               
provided  in the  committee  packet from  the  Department of  Law                                                               
(DOL)  dated  3/20/16, that  referred  to  AGDC as  an  executive                                                               
branch entity.    He then directed attention to  a table provided                                                               
in   the  committee   packet   by   Senator  Costello   entitled,                                                               
"Legislative   Membership  on   State   of   Alaska  Boards   and                                                               
Commissions" and  asked whether the entities  listed thereon were                                                               
executive branch agencies.                                                                                                      
MR. EILER deferred to Legislative  Legal and Research Services on                                                               
the definition, and opined the  entities complied on the list are                                                               
a  variety  of  capacities  in which  legislators,  as  nonvoting                                                               
members,  advise  the  functions of  the  administration  through                                                               
commissions,  independent  state   corporations,  divisions,  and                                                               
departments  of state  government, "by  which the  legislature is                                                               
advising  the administration,  and the  overall process  of state                                                               
REPRESENTATIVE LEDOUX  inquired as to any  boards and commissions                                                               
on which legislators serve that are  identical - legally - to the                                                               
corporate structure of AGDC.                                                                                                    
MR.  EILER offered  to provide  additional information  comparing                                                               
state  corporations; he  added that  there are  many similarities                                                               
between  state  corporations  involved  in  large  projects,  and                                                               
legislators  are serving  in a  nonvoting,  ex-officio manner  on                                                               
boards of directors that make business decisions.                                                                               
REPRESENTATIVE  JOSEPHSON referred  to another  memorandum (memo)                                                               
[document not provided]  dated 12/7/15 in which  Emily Nauman, an                                                               
attorney for  Legislative Legal and Research  Services, concluded                                                               
that  the   proposal  related   to  the   bill  was   likely  not                                                               
constitutional; however, in the 3/30/16  memo she said it may not                                                               
be  constitutional when  " ...  speaking to  nonvoting membership                                                               
...."  He asked for the basis for her change in position.                                                                       
3:34:51 PM                                                                                                                    
MR.  EILER  recalled  that  the   issue  of  "voting  legislative                                                               
members"  was the  subject of  an earlier  Legislative Legal  and                                                               
Research Services memo.                                                                                                         
REPRESENTATIVE JOSEPHSON remarked:                                                                                              
     ...  legislative lawyers  on  the  seventh of  December                                                                    
     were   inclined  to   say,   "This  proposal,   broadly                                                                    
     speaking,   doesn't,  is   not   consistent  with   the                                                                    
     constitution."   Last  week,  the  same attorney  said,                                                                    
     "Well,  it  may  very  well   be  consistent  with  the                                                                    
     constitution."   And I'm asking,  whether you  know ...                                                                    
     what the difference is.                                                                                                    
MR.  EILER offered  to research  previous  Legislative Legal  and                                                               
Research Services opinions on this  matter.  He acknowledged that                                                               
voting  legislative  members  "would   run  into  conflict,  with                                                               
regards to the constitutional issues."   He directed attention to                                                               
page 4 of the memo dated 3/30/16, which read [in part]:                                                                         
     What  is   clear  is  that   the  issue   of  nonvoting                                                                    
     legislative  members  on  executive  branch  boards  is                                                                    
       unsettled.  ... I do not believe the risk is great                                                                       
      enough that I would advise removing the legislative                                                                       
     board members from the bill.                                                                                               
REPRESENTATIVE LEDOUX  suggested the committee  address questions                                                               
directly to Ms. Nauman in this regard.                                                                                          
3:37:12 PM                                                                                                                    
The committee took an at ease from 3:37 p.m. to 3:39 p.m.                                                                       
3:40:00 PM                                                                                                                    
EMILY  NAUMAN, Attorney,  Legislative Legal  Counsel, Legislative                                                               
Legal   and  Research   Services,  Legislative   Affairs  Agency,                                                               
directed attention  to page 3  of a memo dated  12/7/15 [document                                                               
not provided], and pointed out  that she noted ex-officio members                                                               
may possibly reduce the infringement  on executive branch powers,                                                               
thereby lessening the  constitutional issues.  The  main point of                                                               
the  12/7/15 memo  addressed legislative  members serving  on the                                                               
AGDC  board that  would be  voting and  participating in  officer                                                               
selection  and  other  duties.    The  3/30/16  memo  deals  with                                                               
legislative  members who  are ex-officio  and nonvoting  members.                                                               
Ms. Nauman  opined that  a court opinion  is needed  to determine                                                               
whether nonvoting legislative members are unconstitutional.                                                                     
REPRESENTATIVE   JOSEPHSON  said   the  aforementioned   attorney                                                               
general's  opinion relies  upon  1968 and  1976  State of  Alaska                                                               
decisions,  and on  several attorney's  general opinions  (AGOs).                                                               
He said AGO's are presumptively  law and asked whether Ms. Nauman                                                               
does  not  rely  on  state   opinions  "as  sort  of  an  overall                                                               
jurisprudential analysis."                                                                                                      
MS. NAUMAN  said correct.   She added that  there is no  AGO that                                                               
addresses  nonvoting legislative  members  seated  on boards  and                                                               
REPRESENTATIVE   KITO  questioned   the   need  for   legislative                                                               
representation on  the AGDC board because  legislators can attend                                                               
any AGDC  meeting, and request  and receive information  from the                                                               
corporation.   Furthermore,  if legislative  members do  not have                                                               
the ability  to vote, he inquired  as to the role  of legislative                                                               
board members.                                                                                                                  
SENATOR COSTELLO reminded the committee  of the importance of the                                                               
gasline project to  Alaska's future.  Recently, there  has been a                                                               
high  turnover  of  AGDC  board   members,  and  members  of  the                                                               
legislature  have  held  a  long interest  in  the  project,  and                                                               
developed  the project's  guiding  documents.   She  acknowledged                                                               
that legislative  members can attend  meetings, except  the board                                                               
meetings often  go into executive  sessions that  exclude members                                                               
of the legislature.   She opined service on the  AGDC board is no                                                               
different than that on the  Alaska Seafood Marketing Institute or                                                               
the Alaska Travel Industry Association  boards.  Senator Costello                                                               
restated  the intent  of  the bill  is  to foster  communication,                                                               
cooperation,  and trust,  and legislative  members are  needed on                                                               
the  board to  represent  the  people of  Alaska  and advise  the                                                               
3:45:08 PM                                                                                                                    
REPRESENTATIVE   KITO   turned   to   the   following   concerns:                                                               
legislative members in attendance  during executive sessions; the                                                               
continuity  of  the  board;  the   qualifications  of  the  board                                                               
members.   He pointed  out that legislators  are lay  leaders and                                                               
although his personal  expertise is in engineering,  he would not                                                               
presume to understand  the technicalities of, for  example, a gas                                                               
liquefaction  plant, and  cautioned  that "we're  relying on  lay                                                               
legislators  like   ourselves  that  might  not   have  technical                                                               
expertise in  natural gas pipelines  to be that continuity."   In                                                               
addition,  legislators  could  be  called  on  by  the  board  to                                                               
participate  in decisions  whenever  necessary.   He pointed  out                                                               
that   although  a   legislative  member   of  the   board  could                                                               
participate in  an executive session,  he/she would be  unable to                                                               
share  information with  the full  legislature, which  calls into                                                               
question the benefits thereof.   Representative Kito restated his                                                               
question as to the role of the legislative board member.                                                                        
SENATOR  COSTELLO  said legislators  have  to  decide whether  to                                                               
"agree ...  with the premise  of the  bill which is  the people's                                                               
branch  has a  seat at  the  table, no  matter if  that table  is                                                               
inside a locked  door or outside in the public  view."  Regarding                                                               
the value, she recalled that  the legislature passed [Senate Bill                                                               
138, passed in the Twenty-Eighth  Alaska State Legislature] - the                                                               
guiding  structure   for  the  project  -   and  legislators  are                                                               
interested in further participation in the project.                                                                             
CHAIR  OLSON  stated his  and  other  members' concern  with  the                                                               
current  structure of  the board,  which has  board members  with                                                               
experience  limited  to  serving   on  the  Alaska  Gasline  Port                                                               
Authority.    He  reviewed  the  qualities  of  two  unsuccessful                                                               
appointees to  the AGDC board,  and said legislators want  to see                                                               
legislative  members on  the board  because "  ... the  direction                                                               
that  it  may  be  going  may  not  be  the  direction  that  was                                                               
envisioned by the bulk of the people that got the ball rolling."                                                                
REPRESENTATIVE HUGHES expressed strong  support for the provision                                                               
of  the  bill  that  requires  expertise  and  experience.    She                                                               
inquired as  to the nature  of executive sessions, and  asked for                                                               
the reasons the AGDC board would go into executive session.                                                                     
MR. EILER  advised that  AGDC is  exempt from  many parts  of the                                                               
Administrative Procedure  Act, except for the  open meetings law.                                                               
He deferred to AGDC.                                                                                                            
3:51:36 PM                                                                                                                    
REPRESENTATIVE HUGHES  asked whether the bill  sponsor can assure                                                               
the committee that if there  are nonvoting legislative members on                                                               
the board, the board would remain apolitical.                                                                                   
SENATOR COSTELLO  pointed out that  the legislature votes  on the                                                               
appointments   of  members   of   the  board,   except  for   the                                                               
commissioners.  She remarked:                                                                                                   
     I would like to see  the people's branch be represented                                                                    
     there.  Whether you see that  as political ... I see it                                                                    
     as only adding value to,  to the board, and adding some                                                                    
     depth in terms  of the history of  the legislation, the                                                                    
     history of the project.                                                                                                    
REPRESENTATIVE  HUGHES   then  asked   whether  the   sponsor  is                                                               
confident  that if  during  executive  sessions with  legislative                                                               
board  members present,  the other  AGDB board  members would  be                                                               
free to "lay things out on the table."                                                                                          
SENATOR  COSTELLO  opined that  all  board  members would  follow                                                               
guidelines and procedures.                                                                                                      
REPRESENTATIVE JOSEPHSON inquired as to  the laws related to when                                                               
executive branch  officials can  listen to  legislative executive                                                               
sessions;  for  example, whether  they  can  attend an  executive                                                               
session  of  a  Legislative  Budget and  Audit  (JBUD)  committee                                                               
SENATOR COSTELLO declined to answer.                                                                                            
MS.  NAUMAN said  she was  not  aware of  any law  that allows  a                                                               
member  of  the executive  branch  to  sit  in on  a  legislative                                                               
committee   executive   session.     In   further   response   to                                                               
Representative Josephson, she restated her answer.                                                                              
REPRESENTATIVE  JOSEPHSON  questioned whether  other  commissions                                                               
and boards  such as the Alaska  Aerospace Corporation, Department                                                               
of  Military &  Veterans' Affairs,  and the  Knik Arm  Bridge and                                                               
Toll   Authority,   Department   of   Transportation   &   Public                                                               
Facilities,  have been  challenged  by a  claim that  legislators                                                               
should not serve.                                                                                                               
SENATOR COSTELLO said, "Not that I am aware."                                                                                   
3:57:16 PM                                                                                                                    
CHAIR   OLSON  was   told  that   Commissioner  Sheldon   Fisher,                                                               
Department   of  Administration,   was   invited   to  the   last                                                               
Legislative  Council meeting  executive session  but declined  to                                                               
attend at the direction of the governor.                                                                                        
REPRESENTATIVE   KITO  advised   that  Legislative   Council  and                                                               
Legislative  Budget  and Audit  committees  have  the ability  to                                                               
invite  any individual,  but  an individual  must  be invited  to                                                               
participate in executive sessions.                                                                                              
CHAIR OLSON  understood that any  member of the House  and Senate                                                               
can attend, but not participate in, an executive session.                                                                       
REPRESENTATIVE  LEDOUX asked  whether  the  committee would  hear                                                               
testimony  from the  administration  in opposition  to the  bill.                                                               
She  gave her  history of  serving on  the Aerospace  Corporation                                                               
board of directors.                                                                                                             
3:59:56 PM                                                                                                                    
CHAIR OLSON opened public testimony.                                                                                            
4:00:22 PM                                                                                                                    
REPRESENTATIVE  LIZ VAZQUEZ,  Alaska State  Legislature, reminded                                                               
the  committee that  the  board is  not  set up  as  part of  the                                                               
executive branch  - reporting directly  to the governor -  but is                                                               
set  up  as  an  independent   corporation  and  is  exempt  from                                                               
personnel and procurement regulations,  and statutes that pertain                                                               
to the rest  of the state.   She opined AGDC is  only required to                                                               
comply with the  open meetings law; in fact, if  a legal decision                                                               
rendered in  the state were found,  it would relate to  an entity                                                               
closer to  or within  the executive branch,  as opposed  to AGDC,                                                               
which is "totally distinct."                                                                                                    
4:01:53 PM                                                                                                                    
CHAIR OLSON,  after ascertaining  that no  one further  wished to                                                               
testify, closed public testimony.                                                                                               
REPRESENTATIVE  COLVER   expressed  his   concern  that   with  a                                                               
constitutional  issue  outstanding,  AGDC board  actions  may  be                                                               
subject to  litigation, and "cloud  business that we  expect AGDC                                                               
to do."   He read from  the Constitution of the  State of Alaska,                                                               
Article II, Section 5, as follows [in part]:                                                                                    
     No legislator may hold any other office or position of                                                                     
     profit under the United States or the state.                                                                               
REPRESENTATIVE COLVER continued, noting  that AGDC is supposed to                                                               
look and act  like a business, and should not  be encumbered with                                                               
CHAIR  OLSON advised  that  there  are "at  least  a dozen  other                                                               
boards, similar  boards, and to  the best of my  knowledge, we've                                                               
never had that issue arise ...."                                                                                                
REPRESENTATIVE KITO  questioned the benefit of  adding members to                                                               
a  board that  is operating.   Adding  three additional  members,                                                               
especially  legislative members  whose  appointments will  change                                                               
every two years,  does not provide continuity.  He  said the bill                                                               
is not necessary.                                                                                                               
REPRESENTATIVE  JOSEPHSON stated  the  following  concerns:   1.)                                                               
memos written by  Legislative Legal Services that  cite two other                                                               
states  are persuasive  authority, however,  the memo  written by                                                               
the  Department  of Law  cites  actual  state authority  on  dual                                                               
office  holding and  separation of  powers, and  is supported  by                                                               
three  AGO statements;  2.) turnover  on the  board due  to legal                                                               
requirements of  residency; 3.) politicizing  of the  agency; 4.)                                                               
the  inability of  legislative board  members to  share executive                                                               
session   comments;    5.)   constitutionality;    6.)   possible                                                               
litigation.  He said he was a "no vote."                                                                                        
REPRESENTATIVE HUGHES  gave her  experience serving on  the board                                                               
of directors of the Alaska  Travel Industry Association, and said                                                               
the  addition of  legislative  members to  the  AGDC board  could                                                               
improve communications.                                                                                                         
4:09:34 PM                                                                                                                    
REPRESENTATIVE  HUGHES  moved  to   report  [HCS  CSSB  125(RES],                                                               
Version   29-LS1250\S,   out   of   committee   with   individual                                                               
recommendations and the accompanying fiscal notes.                                                                              
4:09:44 PM                                                                                                                    
REPRESENTATIVE JOSEPHSON objected.                                                                                              
4:10:26 PM                                                                                                                    
A  roll call  vote was  taken.   Representatives Tilton,  Hughes,                                                               
LeDoux, Colver,  and Olson voted  in favor of HCS  CSSB 125(RES).                                                               
Representatives Kito and Josephson  voted against it.  Therefore,                                                               
HCS  CSSB  125(RES) was  reported  out  of  the House  Labor  and                                                               
Commerce Standing Committee by a vote of 5-2.                                                                                   

Document Name Date/Time Subjects
HB372 Draft Proposed CS ver H.pdf HL&C 4/4/2016 3:15:00 PM
HB 372
SB125 ver S.PDF HL&C 4/4/2016 3:15:00 PM
SB 125
SB125 Fiscal Note-(L&C)-DCCED-AGDC-02-29-16.pdf HL&C 4/4/2016 3:15:00 PM
SB 125
SB125 Sponsor Statement.pdf HL&C 4/4/2016 3:15:00 PM
SB 125
SB125 Legal Memo CS ver G 3-31-16.pdf HL&C 4/4/2016 3:15:00 PM
SB 125
HB299 ver A.pdf HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Sponsor Statement.pdf HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Fiscal Note DOA-DRB-HB299-03-18-16.pdf HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Supporting Document-Email-Steven Crouch 3-16-16.PDF HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Supporting Document-Resolution AK Municipal League 11-20-15.pdf HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Supporting Document-Resolution K. Gateway Borough 10-5-15.pdf HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Supporting Document-Case Summary Dolan vs King County.PDF HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Supporting Document-Dolan VS King County 8-18-11.pdf HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Supporting Document-Email-Arthur Hansen 2-27-16.PDF HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Supporting Document-Email-Dave Nebert 2-27-16.PDF HL&C 4/4/2016 3:15:00 PM
HB 299
HB299 Supporting Document-Email-Mitch Flynn 2-22-16.PDF HL&C 4/4/2016 3:15:00 PM
HB 299
SB125 Sponsor Statement ver S.pdf HL&C 4/4/2016 3:15:00 PM
SB 125
SB125 Sectional Analysis ver S.pdf HL&C 4/4/2016 3:15:00 PM
SB 125
SB 125 Supporting Document Legislative Membership State Boards and Commissions.pdf HL&C 4/4/2016 3:15:00 PM
SB 125
SB125 Dept. Law Memo to Leg. Office 03-20-16.pdf HL&C 4/4/2016 3:15:00 PM
SB 125