Legislature(2007 - 2008)
03/18/2008 02:40 PM House TRA
| Audio | Topic |
|---|---|
| Start | |
| HB415 | |
| HB294 | |
| HB372 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 294-MARINE TRANSPORTATION: BOARD & DIVISION 2:59:11 PM CHAIR JOHANSEN announced that the next order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 294, "An Act establishing the division of marine transportation; establishing the Alaska Marine Transportation Authority Board and the position of director of the division of marine transportation, and assigning the powers and duties of each; making conforming amendments; and providing for an effective date." 2:59:23 PM REPRESENTATIVE FAIRCLOUGH moved to adopt CSSSHB 294, Version 25- LS1220\O, Kane, 3/18/08, as the working document. There being no objection, Version O was before the committee. The committee took a brief at-ease at 2:59 p.m. 3:00:13 PM CLIFF STONE, Staff to Representative Peggy Wilson, Alaska State Legislature, related that the joint prime sponsors took the committee's comments to heart. He then pointed out that beginning on page 1 of Version O the term "Authority" was changed to "Advisory" throughout the legislation. The language in the long title was changed such that it no longer refers to the establishment of the division of marine transportation and the position of director of the division of marine transportation and setting out the powers and duties of it. Version O no longer includes Article 3, formerly titled "Alaska Marine Highway Organization and Operations," which was located on page 1, line 14 through page 2, line 23, but rather now refers to "Article 3. Alaska Marine Transportation Advisory Board." He explained that Article 3 is the Alaska Marine Highway System (AMHS) organization and operations, which involved a couple of new sections of statute. The section establishing the division of marine transportation was deleted as was the section regarding the Alaska marine transportation director. In response to Chair Johansen, Mr. Stone confirmed that the effect is that [AMHS] would remain part of the Department of Transportation & Public Facilities (DOT&PF) as is the case currently. Mr. Stone informed the committee that although the board composition remains, it's now located on page 2 and has been re-arranged a bit, such that all the communities, save the Ketchikan Gateway Borough, are listed in their [respective] district. 3:05:34 PM REPRESENTATIVE DOOGAN related his understanding that in Version O only the Ketchikan Gateway Borough would continue to be specified singly as having a member on the board, while the other communities, originally listed separately in Version L, are now included with other communities in their district in Version O. MR. STONE noted his agreement with that understanding. In further response to Representative Doogan, Mr. Stone recalled that at a prior committee hearing there was discussion regarding the need to consolidate for simplicity. For example, there was to be one member position representing Haines and Skagway while in Version O Juneau is added to the district that includes Haines and Skagway. 3:07:26 PM REPRESENTATIVE PAUL SEATON, Alaska State Legislature, explained that of the six nonregional members that were appointed, previously there was a designation that three of those had to come from particular cities or regions. Since Ketchikan didn't really fit into the regional representation, it's left as one of the six nonregional members. He noted that there are no restrictions on five of the other six at-large seats. In response to Representative Doogan, Representative Seaton confirmed that the reason for the arrangement is geography. He, too, recalled that at the last hearing, the committee expressed concern that there were too many designated regional seats. Therefore, Version O took two of those three [regional seats] of the six at-large seats from regional apportion. 3:08:58 PM MR. STONE, continuing his review of the changes encompassed in Version O, pointed out that the language of proposed AS 19.65.120(d) now specifies the following: "Board members serve at the pleasure of the governor." rather than the language "The governor may remove a member of the board only for cause." in Version L. In response to Representative Fairclough, Mr. Stone confirmed that the language in proposed AS 19.65.180(a) of Version O has been changed to say, "The board shall select not more than three nominees for the position of director or deputy commissioner of the department's division with responsibility for marine transportation," rather than "The board shall select not more than three nominees for the position of director of the department's division with responsibility for marine transportation". The aforementioned was the drafter's way of getting around the deletion of the section creating the division. He related that the prime sponsors felt the board should have a proactive role in selecting the three nominees that are forwarded to the commissioner for consideration. 3:11:32 PM REPRESENTATIVE SALMON inquired as to why the Ketchikan Gateway Borough wasn't included in one of the regional districts. MR. STONE answered that to some degree it was a matter of geography. However, he acknowledged that it could be argued that Kodiak is off by itself and thus should have regional representation. Ketchikan is one of the first hubs that is reached when traveling north from Bellingham, and thus the sponsors felt it could stand alone in regard to representation on the board. In further response to Representative Salmon, Mr. Stone pointed out that page 2, line 31, specifies the following: "For members being appointed under (a)(2)-(6) of this section, there shall be at least one resident of the Ketchikan Gateway Borough." 3:13:23 PM REPRESENTATIVE SALMON asked if there is any way in which the representation could only end up being from Southeast without any representation from the larger portions of Alaska. MR. STONE explained that proposed AS 19.65.120(6), which refers to the two members of the public at large, was left so that a member of the public from the Railbelt or Fairbanks could be appointed to the board. Therefore, one of the board members from paragraphs (2)-(5) would have to be from Ketchikan. However, paragraph (6) could be filled by a member from Ketchikan. He specified that of the six seats, at least one must be from Ketchikan, which the sponsors felt provided the governor a fairly broad area from which to choose. 3:15:20 PM REPRESENTATIVE DOOGAN related his understanding that the geographical necessity language applies to proposed AS 19.65.120(1)(a)-(e) and then there is a set of at-large members who could be from anywhere, except that one must be from the Ketchikan Gateway Borough. Therefore, in theory there would be six members of the board who had been defined geographically and the other five could be from anywhere, except that one has to be from Ketchikan. MR. STONE noted his agreement. 3:16:27 PM REPRESENTATIVE FAIRCLOUGH asked if the new composition of the board reflects the current Marine Transportation Advisory Board (MTAB). MR. STONE replied no, adding that there are some subtle changes. 3:17:10 PM MR. STONE, in response to Chair Johansen, explained that for the commissioner position the governor will take input and then select someone from a list of nominees that have applied. Typically, for the position of deputy commissioner the governor confers with the commissioner; the commissioner has a great deal of input into who is selected [for those positions]. The decisions of who to [hire] for the deputy directors, legislative liaisons, and the partially exempt positions can be delegated to the commissioner by the governor. 3:18:46 PM CHAIR JOHANSEN related his understanding then that the board will vet a pool of applicants, come up with three names, and submit them to the governor. He then inquired as to what happens if the governor doesn't like any of the names submitted. MR. STONE clarified that the legislation specifies that those three names will be submitted to the commissioner who then can confer with the board, accept the names, and present the names to the governor. In further response to Chair Johansen, Mr. Stone opined that the governor has the prevue to go outside of the board's selection and select whomever she desires. 3:19:59 PM REPRESENTATIVE DOOGAN surmised then that MTAB selects three names for the position of running the AMHS and those names are sent to the commissioner of DOT&PF, who then makes the choice. MR. STONE stated his agreement. 3:20:38 PM REPRESENTATIVE FAIRCLOUGH directed attention to the memorandum from Legislative Legal and Research Services dated March 18, 2008, which addresses the fact that statute doesn't include a deputy director position for AMHS. The last sentence of that memorandum says: "Otherwise, you could be left with the board nominating people for a position that no longer officially exists." She asked if Mr. Stone wanted to speak to that. MR. STONE said the [lack of statute referencing a deputy director for AMHS] is why the language on page 3, lines 30-31, was kept fairly broad. 3:22:30 PM CHAIR JOHANSEN, referring to the language on page 4, lines 3-4, said that although he understands the need for nominees to have familiarity with marine engineering or maritime operations, he indicated he doesn't want to limit the options. MR. STONE stated that Representative Wilson, one of the joint prime sponsors, probably wouldn't have problems deleting the language [on page 4, lines 3-4]. REPRESENTATIVE SEATON explained that the intent of proposed AS 19.65.180(a) is to [eliminate] the position being a strictly political appointee and instead have someone with marine highway experience and expertise. He acknowledged that since this is a recommendation to the commissioner and the governor actually does the appointing, it can always be ignored. CHAIR JOHANSEN opined that he doesn't believe that the experience and expertise has to be spelled out in statute, as he said he believes the MTAB will take that into consideration. He reiterated that he would hate to exclude a brilliant individual who was interested in serving as the deputy director of AMHS. 3:25:46 PM REPRESENTATIVE FAIRCLOUGH informed the committee that she became the executive director of Standing Together Against Rape (STAR) in Anchorage with no experience in sexual assault, but with a background in management. Although some would say that wasn't a good fit, she pointed out that her management experience resulted in the issue of domestic violence and sexual assault being discussed more than prior to her service for STAR. She further pointed out that under the new criteria STAR established after she left the position, she wouldn't qualify to run the organization. She noted that she will offer an amendment regarding the language on page 4, lines 3-4, which she characterized as prescriptive and restrictive. Representative Fairclough stressed, "I don't think that you have to have someone in the field of marine engineer and maritime operation to be able to do the job, but please note that I recognize the frustration that we have currently with how that has not been functional in the past." She then expressed the need to review an individual's entire package as well as the continually changing job market. Although the experience would be preferable, it shouldn't be required, she concluded. 3:28:29 PM REPRESENTATIVE DOOGAN inquired as to how restrictive the term maritime operations is. REPRESENTATIVE SEATON related his belief that there's a lot of difference between running a downtown business and a ferry system. The desire was to ensure that the position is filled with an individual who has experience with ferries and the various aspects of the field. 3:29:57 PM REPRESENTATIVE DOOGAN then inquired as to what the limitation is if the term maritime operation isn't defined. He questioned whether running a tugboat is the same as running a fleet of tugboats, is the same as being the captain of a ferry, and is the same as having management experience in the ferry system. REPRESENTATIVE SEATON remarked, "You're juggling trying to figure out how you make a fit so that we make sure we have the expertise to the run ferry system." He said he understood the position of some of the committee members. For instance, an individual who has experience running an airport, but no maritime experience may be [an acceptable nominee]. Representative Seaton then commented that if the committee decides to eliminate the language referring to experience, MTAB will be well aware that the intent is to have a nominee with experience in maritime operations. CHAIR JOHANSEN commented that due to the Ocean Rangers program, it will be difficult to hire a marine engineer in Alaska. 3:32:05 PM MR. STONE, continuing his review of Version O, pointed out that the language in Version L on page 5, lines 10-12, wasn't included in Version O. Furthermore, Version O no longer includes the route study, which was located on page 6, lines 1- 7, of Version L. He then pointed out that under Version O, the legislation would become effective immediately since the existing transportation advisory board, per the administrative order, will sunset in May 2008. 3:33:10 PM REPRESENTATIVE SEATON pointed out that the committee should have a conceptual amendment, which read [original punctuation provided]: Page 4 after line 12 add "(d) The board has the express authority to offer a request for proposal to construct a 2 year ferry schedule." 3:33:57 PM CHAIR JOHANSEN then turned to public testimony. 3:34:16 PM DENNIS HARDY, Deputy Commissioner of Marine Operations, Alaska Marine Highway System, Department of Transportation & Public Facilities, speaking to Version O, opined that the experience specified for the director or deputy commissioner of AMHS isn't necessarily the criteria that would lead to the selection of a good leader or a good communicator with the public or the legislature. He then said the department needs some clarification regarding what is meant by the language in proposed AS 19.65.195, which says: "The department shall provide staff for the board." Currently, the department provides some clerical assistance to the existing MTAB. This legislation may necessitate additional support for the board, for example, in developing a strategic plan. In response to Chair Johansen, Mr. Hardy confirmed that his testimony is the official position of the department. 3:36:12 PM REPRESENTATIVE DOOGAN asked if Mr. Hardy is expressing the need for the legislation to include a definition of the staff work it would be expected to provide. MR. HARDY answered that he wasn't sure it's necessary in the legislation, but some clarification is necessary for the fiscal note to be prepared. 3:37:14 PM REPRESENTATIVE SEATON explained that the planning takes place in two locations in the legislation. On page 1 of Version O, the legislation refers to the consultation with MTAB regarding the requirement of the comprehensive long-range plan. The aforementioned is an existing requirement. Page 4, lines 9-10, refers to the strategic plan of which he presumed AMHS is already doing the missions, core values, and initiatives. The board is re-involved with DOT&PF in construction of the strategic plan, which he also presumed the department must already be doing. Therefore, he characterized it as a coordination effort such that MTAB is involved in the strategic plan. In response to Chair Johansen, Representative Seaton said that the staff support DOT&PF provides to MTAB currently provides is sufficient to carry out the duties encompassed in Version O. The only difference is that MTAB would be involved in the planning conducted by the department, such as the strategic plan. However, there wouldn't be separate staff for MTAB. In further response to Chair Johansen, Representative Seaton confirmed that the next committee of referral for SSHB 294 is the House Finance Committee. 3:39:35 PM REPRESENTATIVE FAIRCLOUGH inquired as to whether there is an updated fiscal note because besides board support, the legislation "is asking for the authority to request that the expressed authority to offer a proposal to construct a two-year ferry cycle." She opined that the aforementioned and updating the strategic plan will require time from the department that should be included in the fiscal note. Although Representative Fairclough said she wouldn't oppose the legislation from moving from committee, an updated fiscal note should be prepared. 3:40:16 PM REPRESENTATIVE DOOGAN clarified, "The original question here was simply to establish that we weren't going to try and write a scope a work into this bill with the understanding that ... somewhere along the line here somebody's going to have to come up with a fiscal note." 3:40:43 PM RICHARD WELSH, Assistant Attorney General, Transportation Section, Civil Division (Juneau), Department of Law (DOL), said that his principle concern relates to the legislation's effect on the governor's power of appointment as provided in Article III, Section 1 of the Alaska State Constitution. The aforementioned authority is qualified somewhat by Article 3, Sections 25-26, which provides the legislature confirmatory authority over heads of principle departments and members of boards. He related his view that the proposed AS 19.65.120(a) encroaches on the governor's power of appointment as the legislature's power of appointment only [exists] as far as granted in Article III, Sections 25-26 of the Alaska State Constitution. Since this board isn't going to serve as the head of a principle department or a regulatory or quasi-judicial agency, he opined that proposed AS 19.65.120(a) would be unconstitutional. Mr. Welsh mentioned that he had concern about the nomination of the three candidates due to discussions at prior hearings. However, today's discussion seems to indicate the sponsors' recognition that if the commissioner deems the three nominees from MTAB as unacceptable, the commissioner can select whomever he/she deems appropriate. 3:43:31 PM REPRESENTATIVE DOOGAN surmised then that Mr. Welsh doesn't believe the legislature has the authority to confirm the members of MTAB because MTAB doesn't fit the constitutional definition of what the legislature is allowed to confirm. MR. WELSH replied yes, adding that the Alaska Supreme Court addressed this issue in the case of Bradner v. Hammond, which is found at 553 P.2d 1. 3:44:26 PM MR. WELSH then turned to the language on page 3, line 30, which refers to the "director or deputy commissioner." He expressed the need to sort that out because it leaves a question in his mind. 3:45:36 PM REPRESENTATIVE DOOGAN inquired as to the opinion of the legislative drafter with regard to the legislature's power to confirm the members of MTAB. 3:46:11 PM BRIAN KANE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, said that he would have to look into whether it falls within the legislature's purview to confirm members of MTAB as specified on page 2, lines 4-6, of Version O. 3:47:44 PM MR. STONE said that DOL may have a point as the language used for the Aviation Advisory Board says, "The Aviation Advisory Board consists of the following 11 members, who are appointed by and serve at the pleasure of the governor:". He said that he wasn't sure how MTAB is different from the other boards and commissions that come before the legislature for confirmation. 3:48:46 PM REPRESENTATIVE DOOGAN remarked that he is reluctant to concede the legislature's authority based on one attorney's opinion, an attorney who works for the governor. He expressed the need to hear from the legislature's attorneys before doing anything definitive regarding the legislature's ability to confirm members of MTAB. 3:49:24 PM GINGER FORTIN, opined that SSHB 249 will improve the existing ferry system because some members of MTAB will have to be residents of ferry ports. She expressed hope that these members will have ridden the ferry and thus will have less of a chance of having the scheduling problems of 2008. Ms. Fortin said she hoped this legislation would be passed this session. 3:50:17 PM CHAIR JOHANSEN announced that SSHB 294 would be held over to give sponsors time to research the question [regarding the legislature's ability to confirm members of MTAB]. He informed the committee that it would hear the legislation next week. 3:50:46 PM REPRESENTATIVE SEATON asked if the committee has any questions regarding the amendment he mentioned earlier. 3:51:02 PM REPRESENTATIVE FAIRCLOUGH commented that until the public hearing is closed, she didn't feel the committee can really discuss [amendments]. She noted that she has a couple of conceptual amendments that she may want to offer. She added that she doesn't support the amendment provided by Representative Seaton. 3:51:45 PM CHAIR JOHANSEN closed public testimony. 3:51:52 PM REPRESENTATIVE FAIRCLOUGH moved that the committee adopt Conceptual Amendment 1, as follows: Page 1, line 9: Delete "and improvement" CHAIR JOHANSEN objected. 3:52:11 PM REPRESENTATIVE FAIRCLOUGH explained that the language "and improvement" presupposes that the legislature will invest more funds and implies that there will be improvement to the [ferry] system, in some manner. Representative Fairclough said that although she supports improvement of the system, it would be clearer to state that a marine highway plan needs to be developed. 3:52:51 PM CHAIR JOHANSEN related his preference to let the sponsors address the specific points brought up during the hearing prior to adding and/or deleting language. [The committee treated Conceptual Amendment 1 as withdrawn.] 3:53:09 PM REPRESENTATIVE FAIRCLOUGH then informed the committee that she plans to offer Conceptual Amendment 2, as follows: Page 2, line 6-7: Delete "The board shall be composed of the following members:" Delete line 8 through page 3, line 1 Reletter accordingly. REPRESENTATIVE FAIRCLOUGH said that she will probably oppose the legislation in its totality, although she won't oppose it from moving [out of this committee]. Speaking to the sponsors and those frustrated with poor ferry service, she pointed out that to some of the communities served by the ferry system other transportation modes are offered. She acknowledged that there are some communities that need to have improved ferry service schedules. Representative Fairclough opined, "If we expect to improve our ferry system, we cannot just have marine highway people talking about it. The entire legislature needs vested in being able to support, propose amendments and changes, and fund those changes." She then highlighted that the legislature, as it tries to complete its business in 90 days, has created many advisory boards/committees to provide information in which she opined elected officials should be involved so that there is "buy-in" to promote the change desired in the system. The committees are doomed to fail otherwise, she remarked. Therefore, she further opined that it's the responsibility of the House and Senate Transportation Standing Committees to establish service levels and review how the funds are allocated as there are a limited amount of resources. She questioned how the legislature can discuss improving a system if it can't be maintained. Furthermore, the advisory board will only be able to submit three names while costing the state $150,000, which the governor or the commissioner doesn't have to accept. She then emphasized that the legislature needs to provide a framework inside DOT&PF to guide the administration in regard to how the legislature believes funds should be invested. REPRESENTATIVE FAIRCLOUGH inquired as to how much it costs for air transportation and ferry transportation into communities. She also requested information regarding which communities are on the road system and which aren't. She said that those communities that aren't on the road system need more subsidies inside the ferry system than other communities. 3:57:55 PM CHAIR JOHANSEN related his view [Version O] presents a decent balance for board members of MTAB. He then pointed out that Conceptual Amendment 2 would basically gut SSHB 294, which he said would be out of order. With regard to the references of a subsidy to AMHS, Chair Johansen said that the only reason the funds provided to AMHS can be referred to as a subsidy is because there is a fare box, which he likened to a toll. Chair Johansen opined that it is unfair to characterize it as a subsidy. 3:59:40 PM REPRESENTATIVE FAIRCLOUGH pointed out that most roads in Alaska are subsidized. She clarified that when she refers to a subsidy she doesn't mean it negatively but rather as a realization in fiscal responsibility in planning. 4:00:14 PM CHAIR JOHANSEN announced that SSHB 294 would be held over.
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