Legislature(1999 - 2000)
04/08/1999 08:05 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SJR 3 REPEAL OF REGULATIONS BY LEGISLATURE CHAIR JAMES announced SJR 3, Proposing an amendment to the Constitution of the State of Alaska relating to the repeal of regulations by the legislature, is before the committee. Number 209 SENATOR ROBIN TAYLOR explained that SJR 3 gives the people of Alaska (possibly for the fourth time) an opportunity to provide the legislature with the authority to repeal regulations passed by the Administration through a simple resolution. He noted that for approximately 18 years this legislature did have that authority. However, a court decision around 1980 prevented the legislature from being able to use a simple resolution to repeal a regulation. The court said, due to the separation of powers, and their interpretation of the constitution, that the legislature would have to pass an actual bill to repeal a regulation. He further stated, "Any bill of course is subject to a gubernatorial veto and the governor will frequently veto such legislation so as to protect his executive branch functionaries in the manner in which they've drafted the regulations. ... I also sit as Chairman of [Administrative] Reg. [Regulation] Review for this term and it is incredible as we work through some of these attempts to change regulations, attempts to even provide the public with fair and unbiased hearing officers, I am amazed at the level of resistance to even the slightest change in this process that is mounted by this Administration - it really is incredible. It's for that reason, I bring the resolution before you, is I that think that the system works very well in previous years." SENATOR TAYLOR recalled former-Senator Bob Ziegler introduced two resolutions to repeal regulations, possibly in 1978. And the day former-Senator Bob Ziegler introduced them, the "department" showed up saying, "What's the problem, how can we work it out," and they did. Senator Taylor said that's how this system used to work, and that's how it could work in the future. If the public supports the legislature in this matter, they will find that the most onerous portions of state government are the application of regulations to their lives. And if the legislature can make those regulations more attuned to the legislative intent, the public will be more pleased with their government and they will understand it better. The public will also know that the policy makers could quickly and efficiently amend those regulations that they find onerous. Number 287 CHAIR JAMES noted that she worked intently on figuring out a system that would work, where it's less painful for the folks at home. She determined that you would need a hammer and we don't have one as legislators - if we had one, they took it out of our hands. She mentioned that when she was Chairman of Administrative Regulation Review they didn't have a hammer. REPRESENTATIVE OGAN said he was tempted to sing "If I Had a Hammer." He remarked that he is a firsthand witness with the absolute resistance to any sort of change. And, as he has mentioned before, the Administration is the fourth branch of government and the legislature has delegated to them the authority to write regulations. He said they are basically making law and are not elected officials. CHAIR JAMES pointed out that the problems with regulations are not necessarily more or less onerous than they've ever been, it's been a problem since the beginning of the Administrative Procedure Act and it doesn't change with the administrations. REPRESENTATIVE SMALLEY stated, "Looking at the concept needs for a hammer I would imagine some time back when, when the change occurred, I guess it was dependence upon who was wielding the hammer and the level of expertise of the hammer wielder and that's probably where in lies my concern - would be the amount of expertise on behalf of the Senate and the House. And I know we have a great deal of brain-power amongst our bodies but I would imagine that that's where in lies my concern - expertise with regard to regulations and regulatory change." Number 362 REPRESENTATIVE HUDSON said, "It's been my observation that probably it started getting more difficult on the Alaska public through the regulatory process as the federal government got involved in our business in Alaska. That so much of what the Administration does for the projects that we give them as legislators is really pretty smooth and I think we've got a pretty good hammer on that - a pretty good control over that. But the minute the federal government comes in, or the minute the court's - the courts have become very activist -this is my own observation madam chair - that those are the two areas that the courts' decisions and the activism that went through the courts and the federal government because they now provide $1.5 billion of our money on an annual basis - have such an inordinate amount of pressure, if you will, through the regulatory process - that agencies are simply the middleman. The federal government sends the money into state, it goes to the commissioner, the commissioner can't really do what he wants to do with those moneys without taking into consideration of what the federal, you know the federal folks that have given him the money, they said you either do it our way or we don't give you the money. The Department of Labor is a prime example - [and the Department of] Transportation is good example. Many of the onerous regulations on small business are brought about by requirements through the Department of Labor to satisfy federal employee identification - those kinds of things. ... So it's probably timely that we begin to ask the question as to whether or not we need more power to try to give the people a fairer shake or some opportunity to - not protest necessarily, but to at least try to influence onerous regulations (indisc.--fading) on their lives." Number 403 CHAIR JAMES mentioned that she has said, "When federal money is handed to us, we should first of all see whether we want it, not how we can get it," and that hasn't been the legislature's attitude because we look forward to federal funding. She agreed that the federal government has influenced Alaska, but disagreed that that's the total problem. Chair James pointed out that this is the third year that the legislature has been working on the airport regulations and that the federal government is still trying to cram unreasonable requirements down our throat - and it has nothing to do with federal funds. Chair James said, "At this point in time, we're still entering in a discussion. If they finally draft the regulations, we could change them then to fit this if this constitutional amendment were to pass." REPRESENTATIVE KERTTULA pointed out another concern is with the 120-day session. She said, if we want to truly take over regulations we could do that, however she does not believe that it could be done within the 120 days. She added that the legislature could also stop giving regulatory authority to divisions and agencies and we can take it back through that method. She said she thinks that you have to look at it in a more holistic sense and to take over something that is sort of fundamental into the separation of powers takes a lot more time and energy than we're giving ourselves. If this happens, she hopes the legislative sessions will be extended. CHAIR JAMES mentioned that she had suggested creating a regulatory agency in which that agency would write regulations for the legislature instead of the Administration, however, she ran into a lot of resistance. She said, "We're not talking about a lot of resolutions here, we're just talking about having that ability. And then if you assert that ability it gets them to the table, that's the issue." Number 464 SENATOR TAYLOR referred to Representative Smalley's comments on expertise, he said, "A perfect example of the problems that we're facing in resistance by the Administration is the desire that we have unbiased objective hearing officers - what a strange concept. We kind of expect that in our court system, we would hope we have it in our court system. I now have the Department of Health and Social Services, Jay Livey, on record twice ... where he's testified quite candidly that hearing officers are supposed to carry out department policy, they're not supposed to be there to give you a fair hearing or anything else, they're supposed to carry out department policy. When I said, 'Well, you mean the rules and regulations, the statute law that is published, and the regulation that is published, that's what you mean isn't it Mr. Lively?' He said, 'Well no, sometimes we have department policy.' Well sure he has department policy, he has unwritten attitudes, unwritten policies that they are carrying out. ... And the whole issue we were discussing was regulations which set rates for Medicaid patients in the state of Alaska, and whether or not hospitals should be reimbursed. We currently have appeals pending from hospitals that have been out there seven and eight years that have had every hearing officer that has ever looked at them, even though the hearing officer was employed by the department, the hearing officer said, 'No, these are valid claims they should be paid,' - they just keep getting the revolving door on them. It's that level of arrogance that is just incredible, and to have people sit there before you and say, 'No, this is our right, we'll do it any way we feel like it, we don't have to publish our regs.' So we're not talking about expertise." SENATOR TAYLOR continued, "I would submit that Representative Kerttula, you're absolutely correct, we don't have the time and I would never suggest that this legislature try to take over the regulation drafting process. When I took on this job, reluctantly as I'm sure my good colleague Representative James did, I was overwhelmed. I've always looked, as we all do - we get these little flyers that they send out to us and it says the Department of Transportation is changing their regulations - we're going to do this or - you see a lot of changes in the oil stuff through DNR [Department of Natural Resources], I had no idea what the real volume was in that stuff and I do now. No, we don't have the time and we don't have the expertise to sit here and review those. In fact, I think it takes quite a bit of work just on the part of the Lieutenant Governor's Office just to go through and try and keep track of what these folks are doing." SENATOR TAYLOR further stated, "But for that rare instance, and I really believe it is a rare instance, for that rare instance where a regulation is so gross or so misapplied to the law, that someone would feel motivated to put in a resolution to change it, I think that opportunity needs to be there. I don't recall, and I think the record prior to the lawsuit that I was talking about, would indicate that the opportunity to use resolutions to change regulations was ever abused. I'm not aware of that occurring because normally the last thing any one of us wants to do - is to get down into the nitty gritty of how a law is being applied and see if we can go in and play with that. What we'd rather do is look at some kind of bigger issue, so I don't see it as something that's going to be abused in the future, nor to do I see it as something that we couldn't accomplish very easily. I don't imagine that we're going to see more than two or three of these things a session if it once passes because what will happen is the department's going to know you've got that authority when they go to draft that regulation. They may even read the law the regulation's supposed to be based on - what a refreshing change that would be. So, again I think that our state survived very well with that concept for some period of time. I think it will survive better in the future if we have that ability and I commend this to you." CHAIR JAMES asked for a motion to move SJR 3 out of committee. REPRESENTATIVE OGAN remarked no one from the Administration is here to testify, let's move it. CHAIR JAMES called a brief at-ease at 8:30 a.m. and called the meeting back to order at 8:38. Number 549 REPRESENTATIVE COGHILL moved to report SJR 3 out of committee with individual recommendations and the accompanying fiscal note. There being no objection, it was so ordered.