Legislature(2005 - 2006)CAPITOL 106
04/13/2005 08:30 AM House RULES
| Audio | Topic |
|---|---|
| Start | |
| HB16 | |
| HB156 | |
| HB121 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| HB 16 | |||
| HB 156 | |||
| = | HB 121 | ||
HB 121-SERVICE AREAS IN SECOND CLASS BOROUGHS CHAIR ROKEBERG announced that the final order of business would be HOUSE BILL NO. 121, "An Act relating to consolidating or abolishing certain service areas in second class boroughs." [Before the committee is CSHB 121(RLS), which was reported out of committee on March 16, 2005.] The committee took an at-ease from 8:54 a.m. to 8:55 a.m. 8:54:58 AM REPRESENTATIVE COGHILL moved that the committee rescind its action in reporting CSHB 121(RLS) out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 121(RLS) was before the committee. REPRESENTATIVE COGHILL moved that the committee rescind its action in adopting CSHB 121(RLS) as the workdraft. There being no objection, CSHB 121(CRA) was before the committee. 8:56:33 AM REPRESENTATIVE HARRIS moved to adopt CSHB 121, Version L, Cook, 4/11/05, as the working document. There being no objection, Version L was before the committee. 8:57:06 AM KACI SCHROEDER, Staff to Representative Bill Thomas, Alaska State Legislature, reminded the committee that at the last House Rules Standing Committee meeting on HB 121 there was concern regarding the breadth of the powers an assembly would have in terminating or consolidating a service area. On page 2 of Version L, [paragraphs] (1)-(3) attempt to reign in the assembly and provide it direction with regard to when a service area may be abolished or consolidated. 8:58:03 AM REPRESENTATIVE KERTTULA turned attention to an e-mail from Department of Commerce, Community, & Economic Development (DCCED), which expressed continued concern with regard to the application of this proposal to second class boroughs versus home rule boroughs. She asked if the concerns remain with the adoption of Version L. 8:58:45 AM SALLY SADDLER, Legislative Liaison, Office of the Commission, Department of Commerce, Community, & Economic Development (DCCED), related her understanding that the concerns would remain because the legislation continues to only apply to second class boroughs. 8:59:11 AM REPRESENTATIVE HARRIS asked if Ms. Saddler has seen the proposed amendment in the committee packet. He requested that she review it in order to determine whether it allays the department's concerns. MS. SADDLER said that she has not seen the amendment. The committee took an at-ease from 9:00 a.m. to 9:04 a.m. 9:04:39 AM REPRESENTATIVE COGHILL related that in the Interior second class borough there are some legally formulated service areas that haven't legally met for some time nor assessed themselves. Furthermore, these service areas don't have members sitting on the commission and don't have a live contract. Although some in those areas would like to receive the service, the borough is restricted from dissolving or consolidating the service areas. Therefore, this legislation allows the abolishment or consolidation of two or more service areas [under certain circumstances, as specified in Conceptual Amendment 1]. Representative Coghill recognized that there are some challenges between the various classes of boroughs, but opined that the state purview is to allow the aforementioned ability. Representative Coghill specified that he is merely trying to provide the borough some authority to either dissolve service areas that aren't working or get them working again. 9:07:28 AM MS. SADDLER said that the department understands the situation giving rise to this legislation, but the legislation still gives powers to a second class/home rule borough that a first class home rule borough doesn't have. With regard to comments on Conceptual Amendment 1, Ms. Saddler deferred to the Department of Law representative. 9:08:03 AM REPRESENTATIVE COGHILL moved that the committee adopt Conceptual Amendment 1, as follows: This subsection does not apply in a second class borough to abolishment of a road service area or consolidation of two or more road service areas if (1) [THE] taxes have not been levied in the service area for [THE] road maintenance or construction services during the last 12 months and there is no balance in any account for the service area available to pay for these road services; (2) the service area board has not legally met for the last 12 months; or (3) there are no road maintenance contracts in effect for the service area or existing road maintenance contracts do not meet legally required minimum road standards necessary to protect the borough from civil liability. 9:08:37 AM REPRESENTATIVE KERTTULA objected and asked if this is the amendment or will there be changes to it. CHAIR ROKEBERG reminded the committee that the amendment is conceptual. REPRESENTATIVE COGHILL stated that Conceptual Amendment 1 addresses the three major issues he desires. REPRESENTATIVE KERTTULA surmised then that Conceptual Amendment 1 provides the general idea, although it may not be the language exactly. 9:09:24 AM REPRESENTATIVE COGHILL explained that the subsection being inserted by Conceptual Amendment 1 describes what a borough can do and specifies that it doesn't apply to a second class borough. He then reviewed the three provisions specified in [paragraphs] (1)-(3) of Conceptual Amendment 1. 9:10:59 AM REPRESENTATIVE HARRIS recalled earlier testimony regarding the legal question as to what, if anything, a second class borough can be allowed to do that a first class borough isn't allowed to do. Although the intent is honorable, he questioned whether this can be done legally. 9:12:06 AM MARJORIE VANDOR, Assistant Attorney General, Civil Division (Juneau), Department of Law, related her belief that Conceptual Amendment 1 doesn't alleviate the aforementioned concern. Second class boroughs only have the powers provided in statute while the powers of home rule boroughs are specified in its charter. [This legislation] would allow a second class borough to have the authority to adjust its service areas in a manner that home rule boroughs aren't allowed. There is case law relating that a charter, on certain very local matters, will supersede statute. However, she noted that there hasn't been a test case on the matter yet. Ms. Vandor clarified that the Department of Law is concerned that the legislation would provide a specific class of borough authority to amend its service areas under certain conditions that isn't provided to any other borough. The aforementioned becomes a special legislation issue as well. She pointed out that service areas have no legal existence separate from the borough, rather they function as advisory committees. The aforementioned has been the problem with the statute from the beginning, she opined. She characterized the statute as "the tail wagging the dog." 9:14:15 AM REPRESENTATIVE PAUL SEATON, Alaska State Legislature, related his understanding that if this legislation was applied to first class home rule cities, it would restrict them to only use this [statute] rather than their charter. The aforementioned would restrict the ability to use the charter, which seems to violate the entire principle of allowing local decisions. He said that he didn't see anything that prevents first class home rule boroughs from adopting a provision [such as that proposed in HB 121] in its charter. MS. VANDOR related her understanding that the current statute specifies that in order to abolish or amend these types of service areas there has to be a vote of the people in the service area. The aforementioned is a restriction on any government because if only the voters in the service area are allowed to decide how the service area will be changed, more power has been given to a small section of voters within a borough regarding what a service area should be. Such action takes control from the borough government. If a home rule borough's charter already specifies its ability to abolish and amend service areas as it sees fit, then the question becomes what authority the current statute has. She said that service areas are meant such that a borough has control to provide services in an area that is special to that area. The aforementioned is for the assembly to decide, not those who reside there. The statute in HB 121 would not allow a borough government to make the decision without a vote of the people. 9:18:08 AM REPRESENTATIVE SEATON pointed out that HB 121 doesn't change the requirements, abilities, or authorities for home first class; it only speaks to second class boroughs. If the legislation provided that the only way a first class home rule borough could eliminate a service area is through this process, then it would be a restriction on the home rule concept. 9:18:57 AM REPRESENTATIVE KERTTULA surmised that the underlying statute sets up the problem. Therefore, she questioned whether it would be best to address the underlying statute. 9:19:39 AM CHAIR ROKEBERG returned to Representative Seaton's earlier point that home rule boroughs can already do [what is proposed in HB 121] through its charter, while second class boroughs can't. 9:19:54 AM REPRESENTATIVE COGHILL said he would agree if the boroughs were establishing the service areas. However, the voters are gathering and forming a service area under the borough's authority. He pointed out that the service area itself votes whether to levy a mill rate upon those in the area and the service area organization does the contracting. He acknowledged that the commissioner of the service area is appointed by the borough. 9:20:44 AM CHAIR ROKEBERG referred to [paragraph] (3) of Conceptual Amendment 1, and asked if that refers to the level of maintenance, design of the road itself, or both. MS. VANDOR said that she didn't have a background in that area. REPRESENTATIVE COGHILL specified that the "legally required minimum road standards" would be established by the borough standards via a borough ordinance. CHAIR ROKEBERG mentioned that Alaska has a long history of case law with regard to road maintenance liability. 9:22:00 AM REPRESENTATIVE SEATON said that Conceptual Amendment 1 seems to use double negative language, and asked if it should be changed. REPRESENTATIVE COGHILL explained that Conceptual Amendment 1 speaks to service areas in which taxes hadn't been levied, and thus there is no money to provide any services. He noted that much of this is related to the lack of revenue sharing in recent years. The dilemma is that the boroughs are left with the matter of determining how to dissolve a service area that isn't active. 9:24:08 AM REPRESENTATIVE SEATON surmised that the purpose of the proposed subsection in Conceptual Amendment 1 is to eliminate nonperforming service areas. However, the language specifies that this subsection doesn't apply if the service area hasn't paid its taxes. Representative Seaton suggested that the proposed subsection is trying to specify that the subsection would only apply if [the service area] hasn't legally met or levied taxes. REPRESENTATIVE COGHILL remarked that the department and Representative Seaton bring up good points. 9:25:33 AM REPRESENTATIVE COGHILL requested that HB 121 be held in order to obtain the exact language necessary. 9:25:58 AM CHAIR ROKEBERG asked if the sponsor would be amenable to holding the legislation. MS. SCHROEDER answered that it would be fine. 9:26:28 AM LINDA ANDERSON, Lobbyist, Fairbanks North Star Borough, addressed Representative Seaton's concern with regard to the double negative language. The language in Conceptual Amendment 1, which refers to "This subsection does not apply in a second class borough", refers to the preceding language [in the legislation]. Therefore, the election won't apply in a second class borough and the assembly can then have the power if the three criteria specified in Conceptual Amendment 1 are met. For those reasons, she said she believes Conceptual Amendment 1 is correctly drafted. MS. ANDERSON recalled concern from the Mat-Su Borough that the House Community and Regional Affairs Standing Committee version was too broad and that an assembly might take advantage of service areas to consolidate powers. In working with the Mat-Su Borough's concerns, the Fairbanks North Star Borough brought forth Conceptual Amendment 1 to place further restrictions on the assembly. She agreed with Representative Coghill with regard to the loss of revenue sharing that has left boroughs in a legal predicament in that the borough can't manage these road service areas because there are nonresponsive participants or no participants at all. She recalled that the language in Version L was proposed by Representative Stoltze, while the language of Conceptual Amendment 1 was proposed by the Fairbanks North Star Borough to dovetail with Version L. Ms. Anderson explained that the language in [Version L] wasn't broad enough in terms of those areas that currently have a contract. Version L refers to not having a road service maintenance contract. However, there could be a contract to remove the snow, and perhaps the snow would be removed once in a winter, although the roads are still not passable and the contract isn't extensive enough to maintain the roads to the borough ordinance standards. MS. ANDERSON turned to the issue of legality and powers and referred the committee to the last [paragraph] of Tamara Cook's April 6, 2005, memorandum, which relates that this isn't special legislation if it applies to all second class boroughs. Ms. Anderson pointed out that unified municipalities haven't asked for this provision because they don't need it. 9:31:36 AM CHAIR ROKEBERG inquired as to how many second class boroughs are in Alaska. MS. ANDERSON estimated that there are about nine, and noted that the only unified boroughs are Anchorage and Juneau. CHAIR ROKEBERG surmised then that [this legislation] would have general applicability statewide. 9:32:00 AM CHAIR ROKEBERG announced that HB 121 would be held over with public testimony open and Amendment 1 pending.
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