Legislature(1999 - 2000)

04/08/1999 08:05 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                              
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.                                                                                          

Document Name Date/Time Subjects