Legislature(1997 - 1998)
02/17/1997 08:40 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 83
"An Act making an appropriation for management fees for the
constitutional budget reserve fund (art. IX, sec. 17,
Constitution of the State of Alaska); and providing for an
effective date."
DEPARTMENT OF MILITARY AND VETERAN'S AFFAIRS
NICO BUS, BUDGET COORDINATOR, DIVISION OF ADMINISTRATIVE SERVICES,
DEPARTMENT OF MILITARY AND VETERAN'S AFFAIRS (DMVA) pointed out
that there were additional DMVA items in Section 4 and explained
that Section 3 was a $1 million request for the disaster relief
fund. He noted that the department had been using up unobligated
balances over the past couple of years, but needed supplemental
money for the fund in order to be prepared for the remainder of
the year.
Senator Sharp asked whether the disaster relief fund could be
mixed and matched with money made available for the Miller Reach
fire and whether that was disaster or forestry money. Mr. Bus
replied that the funds were both; there had been a specific
supplemental request for the fire and there had also been a
supplemental request in FY 96 for the disaster relief fund that
carried into FY 97. He added that the available balance had since
been used up by other disasters declared in the fall.
Mr. Bus continued that Section 4(d) was a request for $100,000 in
general funds for radio equipment. The department needed to
communicate between the different emergency-response organizations
when it coordinated disasters. Specifically, there had been
problems with the radio for the Miller Reach fire. The request
would allow the department to purchase a portable console that
would enable better communications. The long-term solution would
be a work group between state, federal, and municipal agencies to
learn the right frequencies, for example.
Senator Phillips asked whether the discussed item was typically RP
or single source, and whether additional problems were
anticipated. Mr. Bus replied RP; he did not foresee problems with
telecommunications.
Mr. Bus turned to Section 7, a request for $220,000 for an
emergency-alert system for the Division of Emergency Services. The
system would be used to alert the general population of any
disaster; the alert would transmit to all the different radio and
television stations via satellite.
Co-chair Pearce asked how much other states had to pay to upgrade
to the system. Mr. Bus replied that each state was in a different
situation; Alaska was unique because of geographics and the make-
up of its radio and television stations. He recalled that the cost
ranged between $5,000 and $50,000 for other states. He offered to
provide further specific information through handouts, including a
graphic display.
Co-chair Pearce asked whether the federal government was told that
the system would cost Alaska more than other states. Mr. Bus
believed so. He offered to follow up with more detail.
Senator Parnell asked when it was first known that Alaska would
have to make the expenditure. Mr. Bus replied that the department
had been aware for two years; the item did not get in the budget
and a federal mandate made it necessary to have the system as soon
as possible.
Senator Parnell asked whether the item had been submitted as part
of the governor's FY 97 capital request. Mr. Bus believed it had
been.
ANNALEE MCCONNELL, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET
(OMB), OFFICE OF THE GOVERNOR, testified that the item was one of
those flagged throughout the year because of a federal deadline;
it had been submitted the previous year and then again in the
current year. She added that there were a number of technology and
emergency communications projects the previous year that she felt
needed to be revisited. She wanted to go ahead rather than wait
until FY 98 because of the nature of the emergency communications
difficulties and the federal deadline.
Co-chair Pearce referred to the $1 million appropriation for the
disaster relief fund and queried the base-level budget for the
operations in the area. Mr. Bus replied that the FY 98 base budget
for the Division of Emergency Services would be $585,000. He added
that the funding had been reserved out of the disaster relief
fund, but further analysis revealed that there was not enough
money available.
Co-chair Pearce asked what the balance would be if only base-level
operations were done. Mr. Bus answered that after the $1 million,
there would be $105 million, assuming no further disasters. He
added that $585,000 would be reserved for FY 98.
Ms. McConnell pointed out that in the FY 98 budget, disaster
relief and funding of the Division of Emergency Services had been
considered. Modification was being proposed for FY 98. She noted
that OMB would be open to discussion with the legislature
regarding a different arrangement for funding both fire
suppression and disaster needs. She stressed that the supplemental
request was needed because of the coming flood season.
DEPARTMENT OF HEALTH AND SOCIAL SERVICES
JANET CLARKE, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES (DHSS), informed the
committee that the request in Section 5(a) was for $939,000 for
the adult public assistance program. The program provided
financial assistance to approximately 11,500 elderly, poor, blind,
and disabled people per month. The program was closely linked to
the supplemental security income program (a federal program) and
followed most of the same rules. The program had not had the
volatile swings in caseload experienced by other programs such as
Aide for Dependant Children (AFDC). The adult public assistance
program experienced stable growth throughout the 1990s, ranging
from 7 to 9.1 percent.
Ms. Clarke pointed out that the previous year's request was
reduced by $1.3 million. The department anticipated needing
$939,000 to continue making payments for the program. She added
that the program was an entitlement program and the payment
standard was set by state law.
Senator Phillips clarified that the amount was approximately
$11,500 per month. He thought the figure had previously been
around $8,000. He wondered whether there was another category of
people included in the exemption. Ms. Clarke replied that there
were 7,000 disabled people and 4,000 elderly. She offered to get
more information.
Senator Sharp queried mandates related to Social Security
Insurance (SSI) in the previous year's budget. Ms. Clarke replied
that the department had not been aware of changes when considering
the previous year's budget. The department had built in a small
reduction in its request to reflect the estimated amount of people
that would not use adult public assistance. She noted that the
supplemental request could be reduced, depending on the amount of
people that would not qualify. She stressed that the department
was taking a conservative approach to the number of people that
would not receive the assistance.
Senator Sharp thought the numbers would drop off for those
disabled because of drug or alcohol use. Ms. Clarke replied that
the people described were included in the $100,000 reduction in
the request. She added that the situation would be monitored
closely; the supplemental could be reduced.
Co-Chair Pearce asked what other fund balances were in the
appropriation for adult public assistance. Ms. Clarke replied that
the other programs in the assistance payment appropriation
included AFDC and the general lease assistance appropriations.
After consideration, the department did not believe there were
balances available to cover the shortfall. She pointed to an
anticipated in-depth review based on the quarterly federal-revenue
report and noted that the department would have a more accurate
idea of the balance at the end of February.
Ms. Clarke turned to Section 5(b), a $10 million request for
federal funds for the Indian Health Service (IHS). She explained
that the department had decided to come to the legislature rather
than Legislative Budget and Audit for the component because of the
significance of its size. She detailed that the component was 100
percent federally funded within the medical assistance program and
paid for Medicaid recipients using IHS facilities. She added that
in FY 96, the Healthcare Financing Administration had agreed to
raise the rates for IHS facilities, resulting in a significant
increase in federal funds in FY 97 and a supplemental for FY 96
because the provision was made retroactive to January 1. The
department had discovered that it had not raised authority enough
to pass it on to the IHS facilities. In addition, increased
utilization of the program had been underestimated.
Ms. Clarke continued that the Medicaid program was a 50 percent
state/federal match program; the more the state could encourage
Medicaid recipients to use IHS facilities, the federal government
would pay 100 percent. The long-term plan to contain costs
included encouraging more use of the facilities.
Senator Sharp asked whether there would be offsets because of the
50/50 share. Ms. Clarke replied that the rate the Healthcare
Financing Administration agreed to pay IHS facilities had
basically doubled; the rate went from around $500 per day for
inpatient care to $1,000 per day, which was more in keeping with
the normal market rate. She noted that there was not an increment
increase in FY 97 for the department and that usually there was
growth in the amount required to pay for hospitals and nursing
homes. There was not an increment in FY 98 because of the savings
due to the increased federal receipts.
Ms. Clarke turned to Section 5(c), $1 million for the foster care
program. She detailed that the program was established in statute
and was available so that the department could arrange for the
care of every child in its custody. She noted that foster care was
not for children in trouble or juvenile delinquents, but for those
who were victims of abuse and neglect. The request was in three
parts. The governor's request the previous year was $200,000 over
what the Conference Committee funded and accounted for part of the
shortfall.
Ms. Clarke detailed that the second item related to a discovery
made during the previous nine months related to troubled and high-
cost children. She noted that depending on the geographic
differential, foster-care payments ranged from $25 to $30 per day;
some of the payments were supplemented. She argued that the
program was fairly cost-effective compared to a hospital or an
institutional setting, which could cost up to $800 per day.
Ms. Clarke relayed that the third component was related to the
department underestimating the utilization of the foster care
program. She detailed that in the early 1990s, there were
significant supplemental requests for foster care; re-evaluating
the program had resulted in several years of reduced costs. The
steady 5 percent growth rate did not continue for FY 97.
Ms. Clarke presented a profile of a high-cost foster child
prepared by the division to help understand the increased costs.
The profile described Frank, a child with an attachment disorder
who came to the department at the age of six. School staff had
described him as frequently absent, physically dirty, and having
many bruises and scars on his body. Investigation revealed that
Frank had been severely abused physically and sexually abused by
his parents. He was placed in a foster home, but had to be removed
after he killed the foster family's pet cat and tried to smother
their baby. Two other foster placements ended similarly. There
were also fire-setting incidents. Frank was placed in a group
home. At age twelve, he became unmanageable and assaulted staff
with a knife stolen from the kitchen. He was transported to a
psychiatric bed at a community hospital, and then to a private
facility in Anchorage. He had been in the private hospital longer
than was authorized by Medicaid. The Division of Family and Youth
Services was paying for Frank's care out of the foster care budget
until a suitable place could be found for him. While normal in-
patient psychiatric costs can be $800 per day, the department had
negotiated a cost of $300 per day with the private facility, but
the rate was still high.
Co-chair Pearce queried what had happened to the parents. Ms.
Clarke offered to find out.
Senator Sharp asked when the budget responsibility would be
transferred to another mental health budget. Ms. Clarke replied
that there had been activity working with the mental health board
and the Alaska Mental Health Trust Authority to look at different
models of care. One suggestion was more secure facilities than
group homes at around $50 per day. She noted that division staff
was looking for a middle solution for the children.
Senator Sharp thought the suggestion distorted the notion of
budgeting for foster care because of the symptoms being treated.
He asked whether the second and third foster sets of parents had
been told about Frank's problems. Ms. Clarke did not know. She
offered to get more details.
Senator Phillips asked whether Frank would be in an institution
for the rest of his life, given past experience. Ms. Clarke
replied that in the past, such young people were sent out-of-
state, which propelled the Alaska youth-initiative program;
funding was provided from the Department of Education, the
Division of Mental Health, and the Division of Family and Youth
Services. The intent of the program was to keep young people out
of institutions and provide "wrap-around" services. She noted that
the department had been finding that the situation for the
described young people was becoming more severe. Some of the
placements were not working out. She did not know whether the
child would be in an institution for the rest of his life.
Senator Parnell pointed to backup materials stating that the
division had experienced escalated numbers of children with severe
emotional and behavioral needs. He questioned whether foster care
was changing and what was happening to cause the escalation. Ms.
Clarke answered that she was not qualified to assess the trends.
She thought the discussion regarding whether a child in custody
was a Division of Family and Youth Services child or just a child
with a lot of needs, including mental health needs. She noted that
the department could be bound by appropriations and categorical
funding; coming up with ways to break down the barriers was
challenging. She offered to get more information about trends.
Senator Parnell queried the extent of the problem. Ms. Clarke
replied that the foster-care budget was $10.8 million, while a
single child with significant problems could cost up to $200,000.
She offered to get more information about the extent of the
problem.
Senator Sharp noted that the increase would be around 10 percent.
He asked whether any portion of the foster-care budget was covered
by federal funds or match funds. Ms. Clarke responded that there
were significant federal dollars, including Title IV(e) funds for
qualifying foster kids.
Senator Sharp queried the availability of matching funds for the
million dollar request. Ms. Clarke responded that part of the FY
97 request was an increase in the federal share; it was already
built into the budget. The increment in federal funds was already
received. She pointed out that Title IV(e) was not a strict-match
program; it was available only for kids who were considered
eligible. For those who qualified, there was a 50 percent match
requirement. In Alaska, approximately 40 percent of kids in foster
care qualified for the funds; the state received 50 percent.
Ms. Clarke turned to Section 5(d), a request for $685,000 for the
McLaughlin Youth Center. The center had a 150-bed capacity; during
the fall it had housed around 180. For January, the average number
of clients escalated to 192 kids. She reported that the crowding
was mainly occurring in the detention unit, not the long-term
open-campus unit. The detention unit currently had a 35-bed
capacity, but occupancy had been 70 to 90 kids. In addition,
increased staff was required because of the overcrowding.
Ms. Clarke pointed to backup materials with a chart illustrating
the changing population at McLaughlin Youth Center that had
necessitated higher requests for funding. In the past, there had
been seasonal downturns during the summers. She noted a small dip
during the previous summer, which did not correspond with the
typical large dips of the past. For funding purposes, the
department had anticipated the usual significant summer reduction,
which did not occur. Another concern was the increased need for
staff to keep the facility safe as well as increased needs for
food and other commodities.
Senator Parnell wondered whether there had been a time when the
residence was not staffed around the clock. Ms. Clarke replied
that the facility had always been staffed 24 hours each day. The
backup materials were alluding to overtime costs needed in the
past because of the inability to fill positions. She noted that
there were different kinds of kids in the center, including older
kids that preyed on younger kids, and girls, who needed to be
separated from the boys.
Senator Parnell pointed to backup materials saying that when the
center was not over capacity, some of the posts could be manned
during daylight hours and not at night. He asked for background
information. Ms. Clarke replied that the described situation had
probably occurred in July 1993.
Senator Sharp asked how many positions were added. Ms. Clarke
answered that on-call staff had been added, not permanent staff.
She added that the on-call staff was becoming like permanent staff
and the issue would have to be revisited.
Senator Sharp hoped that overtime would be replaced as much as
possible. Ms. Clarke agreed.
DEPARTMENT OF LAW
FRED FISHER, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES,
DEPARTMENT OF LAW, informed the committee that Section 6(a) was a
request for a lapsed-date extension for an amount pertaining to
outside counsel contracts for oil and gas litigation support. He
detailed that under AS 37.25, a valid obligation or encumbrance
existing on June 30 was automatically re-appropriated for the
subsequent fiscal year. He noted that the issue pertained to what
could be done to the amounts validly encumbered as of June 30. He
pointed to an apparent disagreement between the agency and the
legislative auditor as to whether the contracts for litigation
support were severable after the fiscal year. At the end of FY 96,
only the amounts associated with two contracts for outside counsel
services were encumbered and were involved in the lapsed-date
extension. All other amounts remaining unexpended or that were
encumbered for other purposes as of the time were lapsed. The
amount constituted about $1.9 million. He pointed out that the
legislature had adopted similar language the previous year
allowing the department to extend the lapse date for FY 95 through
the end of FY 96.
Senator Parnell referred to the disagreement between the
department and the legislature regarding the mechanism and asked
whether the department would use the mechanism in the future. Mr.
Fisher believed the department would not use the mechanism again
after the present year.
BARBARA RITCHIE, DEPUTY ATTORNEY GENERAL, CIVIL DIVISION,
DEPARTMENT OF LAW, agreed that the current usage was the last
time. She testified that the department intended to continue
bringing down the oil and gas budget to reflect the ramping down
of case activity.
Co-chair Pearce noted that legal staff had informed the committee
that it would need a three-quarter vote on the particular section
of the supplemental budget because the funding source was the
Constitutional Budget Reserve (CBR) and had been for a number of
years. She understood that staff had asked Mr. Baldwin to offer
other ideas, but she had not seen anything. She pointed out that
the title of the bill would need to change to include the CBR
appropriation provision.
Co-chair Pearce asked Ms. Clarke from DHSS to address the
ratification section before continuing with the Department of Law
(Section 11, subsection 3, accounting system ratifications).
Ms. Clarke provided background regarding ratifications. When the
state converted to the current accounting system, there were a
number of negative allocations that continued on the books. The
Department of Health and Social Services had not cleaned up the
negatives, although the items had been paid. The previous spring,
a report by OMB showed over $6 million for DHSS. There were
positive allocations negating negative allocations; however, the
positive would lapse and the negative would remain. The last items
[in Section 11] included an over-expenditure caused by the use of
a field warrant.
[SFC-97, Tape 37, Side B]
Ms. Clarke detailed that there were several ways to pay expenses.
One was using a general warrant. A field warrant did not have the
same control; a field warrant was certified and issued, and the
information was input after the fact. In the example, the warrant
was $0.07 over after the fact. She assured the committee that DHSS
had dropped the use of field warrants by 85 percent since 1989 and
1990 [when the problems occurred].
Ms. Clarke added that many over-expenditures were related to
revenues that did not come in. For example, an item for a Medicaid
facility (Harborview) reflected inaccurate expectations of
payments from federal sources.
Co-chair Pearce queried a $191,000 item from 1995. Ms. Clarke
answered that the item was a recommendation in the FY 96
legislative audit, requesting receipt of a ratification. She
reported that the item had been paid and was a revenue shortfall.
The shortfall was the result of a failure to report and claim
eligible expenditures. The department had a two-year window; for
some reason, out of the millions of dollars that were claimed, the
item did not get claimed on time for the federal share. The
federal share in the appropriation was significantly higher.
Co-chair Pearce clarified that the $191,000 represented a portion
of the federal share that had not been claimed by the department.
Ms. Clarke explained that for matching information systems,
Medicaid usually got 90 percent federal participation. The
department had large appropriations in the past when the system
was brought up; the one item was not claimed on time for a portion
of the activity.
Co-chair Pearce asked what the department was doing to assure that
the shortfall was not repeated. Ms. Clarke answered that the item
was a capital item and that the department was much more adept at
claiming operating funds. She added that DHSS was building
claiming procedures to make sure that the capital items were
identified up-front.
Co-chair Pearce turned attention back to the Department of Law.
She noted that there were two other sections, subsection (b);
subsection (c) was already gone. She turned to judgments and
claims.
Ms. Ritchie explained that the section reflected the $97,072 for
judgments and claims that the department had processed at the time
the bill was prepared; since that time there had been a few more.
Senator Parnell referred to the list of judgments and claims and
asked whether the amounts were judgment or settlement amounts. Ms.
Ritchie replied that most of the items were judgment amounts.
Items that were settlement amounts for the most part had been
affirmed by the court involved and signed off as a judgment.
Senator Parnell asked whether the items were fixed and queried
interest calculations. Ms. Ritchie answered that the interest
calculation was from whenever the judgment became interest-bearing
through June 30, 1997, in order to estimate when the payment would
be made. She noted that other than interest beyond June 30, the
amounts would not change.
Co-chair Pearce requested an explanation of each item. Ms. Ritchie
went through the list:
1. Judgment totaling $4,690.03 related to the Knowles case,
litigation regarding the CBR. The amount reflected the
resolution of the remaining issues in the litigation,
including the attorney fees incurred in connection with the
enforcement and verification work done after entry of the
court's order. The work was done to ensure that the proper
funds were being deposited into the CBR. The payment would
be made to the attorney firm for the plaintiff, Pope and
Katcher.
2. Kenai Peninsula Borough School District v. State of Alaska
Department of Labor judgment at $1,327.51 (total and
interest). The case involved a woman who was determined by
the department to be entitled to unemployment insurance; the
decision was appealed by the school district that determined
she was ineligible for the benefit. The Department of Law
opposed the motion for attorney fees and costs and the court
disallowed the costs but awarded attorney fees in the amount
reflected.
3. O'Callaghan v. Coghill judgment at $28,248; $31,519 with
interest through June 30 payable to Max Gruenberg. The
litigation related to the change to the blanket primary rule
to close the primary. The state of Alaska prevailed in
superior court; the Alaska Supreme Court reversed the ruling
and reinstated the open blanket primary rule. The plaintiffs
had requested $40,000 in attorney fees; the department
defended against that, taking the position that nothing was
owed. The court ordered attorney fees in the amount of
$25,000. The department did not contest the amount awarded
to O'Callaghan although it did object to costs, which were
not granted.
Senator Parnell queried the total awarded. Ms. Ritchie replied
that the award was for nearly $27,000 in attorney fees to the
Alaska Voters for Open Primaries (represented by Max Gruenberg),
and costs at $1,400.
Ms. Ritchie continued with the list:
4. Alaska v. Native Village of Venetie at $13,109.12 (including
interest) to the Alaska Legal Services Corporation. The
award was by the U.S. district court for costs that arose
out of the first of three Venetie cases. Venetie I was the
adoption case and was remanded out of the ninth circuit back
to the district court for a trial on tribal status in Indian
country. Venetie I was consolidated with Venetie II, the tax
case which was also remanded. Following the trial, the judge
held that Venetie had established the criteria for common-
law status as an Indian tribe, a different ruling than what
later happened in the Fort Yukon case where Judge Holland
determined that Fort Yukon was a tribe based upon its
inclusion on the Bureau of Indian (BIA) list of tribes first
published in 1993. The amount represented costs; the entire
attorney fees award was disallowed by the district court.
The court determined that Alaska Legal Services was not
allowed because what they were actually asserting was an
issue related to sovereign powers, which was not an issue to
which they were entitled to fees under federal law. The
attorneys were asserting a deprivation of constitutional
rights under 42 U.S.C. 1983, which would entitle them to
fees. The court disagreed and said the case was about
sovereign powers and not entitled to fees. She corrected the
earlier number to $11,000 for costs.
Co-chair Pearce clarified that the money was going to Alaska Legal
Services. Ms. Ritchie agreed, and added that the money was for the
costs associated with the trial when the case was remanded from
the ninth circuit.
Senator Parnell asked who Alaska Legal Services represented in the
case. Ms. Ritchie answered that the Native Village of Venetie was
represented. Senator Parnell asked why; he thought the
organization represented indigent Alaskan citizens. Ms. Ritchie
offered to check. She noted that the village was represented; two
individually named plaintiffs were Nancy Joseph and Margaret
Solomon. She added that the attorney fees issue was under appeal.
Senator Torgerson asked whether Alaska Legal Services was allowed
by Alaska statute to represent a village. Senator Parnell noted
that individuals were named. Ms. Ritchie agreed that there were
individual plaintiffs in the adoption case where the individuals
were seeking to have the state recognize a tribal adoption. The
issue was whether the tribe had the power and whether the state
was required to recognized the adoption. She offered to get more
information.
Ms. Ritchie continued with the next item on the list:
5. Phoolan v. United Fishermen, the litigation that arose from
the fish initiative. The plaintiffs challenged the
lieutenant governor's certification of the fish initiative
for placement on the November 1996 ballot. The superior
court upheld the certification, the plaintiffs appealed to
the Alaska Supreme Court, which reversed the decision and
enjoined the lieutenant governor from placing the initiative
on the ballot. The issue in the case was whether the
initiative called for an appropriation. The state prevailed
in its opposition to the plaintiffs' request for public
interest litigant status and also prevailed in its
opposition to the co-defendant FISH, Inc.'s request for
public interest status. The department successfully
challenged the request for full attorney fees as public
interest litigants, resulting in savings of $16,000. The
department was also successful in opposition to FISH, Inc.'s
attempt to shift all liability for costs and fees to the
state; as a result the state was responsible for only half
the costs and attorney fees. The state's co-defendant, FISH,
Inc., was liable for the other half. Therefore, the amount
for fees and costs was around $1,300 with the interest.
Senator Phillips queried the attorney fees. Ms. Ritchie replied
that the amount of $1,350 would be payable to Arthur Robertson of
Soldotna. She thought that Av Gross represented the sponsors of
the initiative and Arthur Robinson represented the group that did
not want the initiative on the ballot. The state was represented
by Jim Baldwin and Sarah Felix.
Ms. Ritchie continued with the next item on the list:
6. McClosker v. State, Department of Revenue, amounting with
interest to $1,411.15. The case came from an appeal of a
permanent fund dividend determination. The amount would be
payable to a lawyer in Fairbanks. In the case, the
Department of Revenue denied a 1994 permanent fund dividend
application for a woman's son; she appealed, and it was
determined that the department had applied the wrong
regulation. When the case was appealed, the error was
apparent, but the appellant had already incurred full fees
and costs at about $3,100. The department did not pursue the
case further, as the error was apparent. There was an award
of attorney fees and costs of $1,300.
Senator Sharp queried the source of the funds. The department
believed the funds came from the permanent fund. Senator Sharp
thought the amount should be paid as part of the administration of
the permanent fund as it was caused by an erroneous rejection. Mr.
Fisher (?) replied that the department could look into the issue.
Ms. Ritchie continued with the list:
7. Alaska Public Employees Association v. State of Alaska, an
attorney fees award of $1,000 entered by the state supreme
court. In the case there was an arbitration award some years
ago that would require that the Department of Environmental
Conservation (DEC) enable Mr. Long to have certain duties
with respect to pipeline terminal oversight; DEC appealed
the decision to superior court, which prevailed. Further
appeal to the Alaska Supreme Court reversed the ruling,
indicating that the arbitrator's award should have been
upheld. The court entered an award of $1,000 for attorney
fees.
Co-chair Pearce asked whether Mr. Long was back on the job. Ms.
Ritchie answered that she did not know, but believed he was.
Ms. Ritchie continued:
8. National Education Association v. Mark Boyer. The case began
several years ago in 1991. The National Education
Association (NEA) brought a class-action suit against the
Public Employees Retirement System (PERS) and Teachers
Retirement System (TRS), challenging the statutes relating
to medical benefits and the automatic cost-of-living
increases, as well as the failure of various commissioners
of administration under Governors Cooper and Hickel to award
discretionary cost-of-living increases. The department filed
motions for summary judgment on the statutory issues and
prevailed; however, they were not able to obtain summary
judgment on the discretionary cost-of-living increases. On
the cost-of-living issue, the department ended up in
settlement negotiations with the parties at the urging of
the state superior court and was able to reach a settlement.
Any resolution of the case required court approval, since it
was a class-action suit. As part of the resolution, the TRS
and PERS systems agreed to pay NEA's attorney fees relating
to the case in the amount of $7,500. The case was major and
involved potentially significant liability for the
retirement systems; significant effort was put into trying
to defend the case and resolve the issues. The retirement
systems prevailed on the statutory issues; as part of the
settlement, the plaintiffs agreed not to appeal the superior
court's rulings on the summary judgment with respect to
those issues. The rulings were binding on virtually every
member of the PERS and TRS systems, which were liable for
about $7,500 in attorney fees. Since the potential liability
was much greater, the department felt the resolution was
beneficial.
Senator Phillips queried the names of the players. Ms. Ritchie
replied that the attorney in the NEA case was Don Clocksin.
Senator Sharp asked whether PERS and TRS would pay the bill. Ms.
Ritchie answered in the affirmative. She continued with the list:
9. Capital Information Group v. State of Alaska Office of the
Governor. The lawyers in the case for the Capital
Information Group included Greg Erickson, Jeff Bush, and
Doug Pope. Ms. Ritchie represented the state. The case arose
in 1993 in Governor Hickel's administration. The Capital
Information Group had requested under the Public Records Act
that the governor's office provide certain documents related
to budget development and proposed legislation prior to the
governor making decisions about the issues. The Office of
the Governor denied access to the records, asserting
deliberative process and executive privilege, because the
items were prepared by the department heads and the
governor's policy advisors for the governor's consideration
in setting policy with respect to budget decisions and
whether particular pieces of legislation should go to the
legislature. The Capital Information Group appealed the
initial decision to the chief of staff in the governor's
office; the appeal was denied, and the group brought suit.
In the superior court the group initially sought an
injunction, which was denied; petition to the Alaska Supreme
Court was also denied. A motion for summary judgment in
superior court on the deliberative process/privilege issue
was affirmed in total and held that the process was properly
invoked with respect to both types of documents. The Capital
Information Group appealed to the Alaska Supreme Court,
which decided that the legislative documents were covered by
the executive deliberative process/privilege. She noted that
the case was useful in that it further articulated the scope
of the privilege beyond what had been articulated before.
Regarding the budget documents, the court pointed to a
certain provision in the Executive Budget Act related to all
documents that departments must submit to the OMB to be
incorporated into the governor's proposed budget and
determined that documents were public once submitted to OMB.
The court said that the statutory provision balanced
deliberative process and privileges with public interest and
disclosure. The legislature had already achieved that
balance and had decided that public disclosure was
appropriate. Therefore, the court said the legislature had
the authority to adopt the statute. The documents were now
public once they were submitted to OMB. Capital Information
Group was a public-interest litigant in the case, and so was
entitled to full reasonable attorney fees. They initially
claimed a total of $36,000 in fees ($16,000 before the
supreme court and a little over $20,000 before the superior
court); the issue was resolved through settlement and
$10,000 was paid for the supreme court work and $10,000 for
the superior court work. The state prevailed on one of the
issues: the appellate in the supreme court had largely
focused on the budget documents, so the larger percentage of
the supreme court work reflected concentration on the budget
issue.
Co-chair Pearce queried the lower court request for a temporary
restraining order (TRO). Ms. Ritchie replied that an injunction
was being sought; they were trying to require the executive branch
to release the documents.
Senator Phillips asked for the definition of "public interest
litigant and wanted to know who could use it. Ms. Ritchie replied
that in the cited instance, case law was on point with respect to
the ability of the press to establish itself as a public interest
litigant. She offered to get more information.
Senator Sharp summarized his understanding of the case and asked
how a case could be expanded as it worked through the process. Ms.
Ritchie replied that the case was not expanded. The Capital
Information Group initially sought two things: legislative
proposals that came to OMB from various department heads pre-
session, and budget impact memoranda (OMB had issued certain
allocations to each department asking the impact of getting a
given amount of money and recommendations). In the development of
the budget, volumes of information were produced. The superior
court viewed the request as continuing; the state was required to
maintain and catalog all the information. In that way, the request
expanded the process. In the final analysis, however, both the
supreme court and superior court focused back on the budget impact
memoranda that had been requested by OMB.
Senator Torgerson asked the definition of "submitted" (related to
the information becoming public when it was submitted to OMB). He
wondered whether the process referred to hard copy, email, or
conversation. Ms. Ritchie replied that the court ruling did not
answer to that level of detail; following the decision, the
Department of Law discussed the interpretation with OMB. The
statute stipulated that OMB ask for information in putting
together the budget, and once the information came to OMB, it was
public. She did not think it mattered at that point whether the
information was paper or electronic. She noted that the statutes
were created before the proliferation of electronic technology,
but she did not think it mattered. Once the information went to
OMB, the governor would use the material for the proposed budget.
Prior to the information being received, there would be
discussions related to the budget.
Senator Torgerson wondered what the actual submission meant. He
had heard recently from different agencies that not much was put
on paper because they did not want the information released. He
believed OMB was involved in putting together individual
department budgets, but the information was not submitted on
paper. He asked whether a policy had been developed regarding
submission. Ms. Ritchie reported that during the current year, the
documents were submitted to OMB around mid-November. She believed
the governor had delayed his presentation to the public
considerably as a result of the court decision. She did not think
the amount put in writing differed from other years, although the
ruling affected what the statute meant.
Co-chair Pearce questioned why information a department gave to
OMB should not be confidential until the governor reviewed it. She
opined that that would affect the budget process and prevent open
discussion. As the budgets got tighter, departments would have to
prioritize and might not be willing to do so if the information
was made public. She wanted to know the legal reason for the court
decision. Ms. Ritchie replied that the state had made similar
arguments and that the court had applied similar analysis with
respect to the legislative documents. Regarding the budget
documents, the court held that the materials met the threshold
requirements for the privilege, that they were pre-decisional and
deliberative. She believed that absent the statute (AS
37.07.050(g)), the court would have held that those were
deliberative documents in the same manner that the legislative
proposals were at the time.
[SFC-97, Tape 38, Side A]
Ms. Ritchie continued to describe the timing of the process. She
thought that getting input from the commissioners was part of the
process. The difference was the existence of the statute and the
Executive Budget Act, which stipulated that the information became
public once it was forwarded to OMB (the information required to
be submitted by departments to OMB). The court held that the
legislature had the authority to adopt the statute. The state
argued that the statute violated separation of powers because it
superseded the deliberative process privilege; with the statute,
there was not deliberative process privilege in the same manner as
with other documents (with respect to the budget documents). The
court held that the legislature had the authority under the Alaska
Constitution "to allocate executive department functions and
duties among offices, departments, and agencies of the state
government." In addition, the enactment of the statute allocated
executive branch functions; it was within the power of the
legislature to enact the statute, and in doing that, the
legislature had already applied the balancing test with respect to
the need for a deliberative period of time and the need for public
access to the information.
[Unidentified speaker] described her related experience. When
discussing the budget process at the state level with staff, she
would point out that the budget documents were submitted to OMB
and then decisions would be made about the various items. She
noted that it wasted time to submit items that would be rejected.
In a previous job as the director of the municipality of
Anchorage, she had worked to get information more informally
before having departments prepare the detail. She agreed that
ideas might not be brought forward that had to be put on paper.
She opined that a more creative process could be more productive
and that in the first year, verbal information was encouraged
(this was before the Capital Information Group case). She agreed
that the resolution of the lawsuit had heightened the need to
figure out how to go through the process in a way that both meets
the state supreme court requirements and meets the practical
workings of government.
Co-chair Pearce referred to early testimony by Ms. Ritchie
regarding public-interest litigants. She understood that the
courts felt that the press had an ability to get to information
that was available to all. She queried the parameters of a group
such as the Capital Information Group related to information. Ms.
Ritchie responded that the Capital Information Group had a
publication with subscribers. The issue in the case was the Alaska
Budget Report. She pointed out that there were criteria related
the numbers of subscribers; the Capital Information Group met
criteria for qualifying as "press." The concept for the press
being a public-interest litigant was that they were seeking
information on behalf of the public who were their readers. She
offered to get more information on public-interest status.
Co-chair Pearce asked whether there was provision in the law for
reporting versus analyzing or interpreting. Ms. Ritchie answered
that she did not believe so. She continued with the list:
10. [Case name unintelligible] for $2,000 plus interest attorney
fees award. The state's lawyer was Robert Royce, who handled
most of the human-rights appeals that end up in court. The
lawyer for the appellant was Christian Bataille from
Fairbanks. In the case, the plaintiff had appealed a human
rights commission determination that dismissed two of his
administrative complaints; the allegation was on age
discrimination. The case was appealed to superior court; the
determination was that the complaints probably should not
have been dismissed. The amount of attorney fees awarded was
half the amount requested.
11. An appeal from the Alaska Commercial Fisheries Entry
Commission by Mr. Eckert. The commission had declared Mr.
Eckert ineligible to apply for a commercial fisheries entry
permit. The decision was based on a 1978 hearing. The
commission did not issue its final decision until 1994. In
the meantime, Mr. Eckert had been issued a temporary permit
and had been fishing. The issue was whether he had
established eligibility to file an application for the
permit in 1972. The lawyer was from Fortier and Mikko in
Anchorage. Judge Roland from the superior court decided that
the notice that was issued to Mr. Eckert in 1976 was not
sufficient notice and did not give him enough information.
The case was remanded to the commission for a hearing. The
superior court did not reach the other issues.
Co-chair Pearce asked whether it was normal for the commission to
give a temporary permit to anyone who has appealed the denial of a
permit. She wondered whether he was denied a permit. Ms. Ritchie
answered that he was determined ineligible to apply for a permit,
but he was issued a temporary one. She did not know normal
practice.
Co-chair Pearce thought the question was interesting and wondered
why a permit would be granted while eligibility for one was being
determined.
Senator Torgerson queried the chain of events. Ms. Ritchie
responded that the issue in 1972 was whether the claimant was
eligible to apply. He was given an initial hearing in 1976, and a
re-hearing in 1978; the commission finally issued its decision in
1994 and that was appealed to superior court.
Senator Torgerson thought a lot of time had passed.
Ms. Ritchie continued with the list:
12. Michael Brown v. State was a case that arose out of an
appeal of a child-support determination. The lawyer was
Kenneth Kirk in Anchorage; Rhonda Butterfield represented
the state. The amount was entered by Judge Wolverton for
attorney fees against the state. The Child Support
Enforcement Division had administratively modified the
plaintiff's out-of-state child-support order and raised the
obligation substantially. Mr. Brown did not appeal at that
time; he asked for a modification of child-support award,
but did not provide sufficient information needed. The Child
Support Enforcement Division began collecting a substantial
amount of money from the plaintiff under the new
modification award. Mr. Brown filed a lawsuit in superior
court, claiming that the agency did not have the statutory
authority to modify the court order of child support. The
agency argued that he was attempting to appeal
administrative decision, but was out of time and had not
complied with procedure. The case was pending when the
supreme court issued its decision in State [Child Support
Enforcement Division] v. Dunning; based upon that decision,
the court ruled that the holding of the supreme court
applied and granted the relief requested by the plaintiff,
holding that the provision in Title 25.27.210 authorized the
plaintiff to go to the superior court to challenge the
division's decision. Ultimately, the state filed motions for
reconsideration but was not successful. The judgment for
$2,000 was entered for the plaintiff's attorney fees.
13. Alaska Gun Collectors Association v. State, related to the
question of sale or destruction of firearms by the state.
Wayne Anthony Ross was the lawyer. The amount of the fees
was $3,000 with $286 in interest. In the case, the parties
stipulated to a dismissal on the basis that state law
provided that the state may only dispose of forfeited
surplus or recovered but unclaimed firearms and ammunition
by sale or trade to a federally-licensed firearms dealer and
that firearms that were not serviceable or safe would be
destroyed. The issue brought by the plaintiff was that they
were concerned that the executive branch would be destroying
firearms that they felt should be made available either to
gun collectors or licensed firearm dealers and that the
destruction of the firearms would be inappropriate use of a
state asset. Since the filing of the litigation, the
legislature had passed the law clarifying how firearms
recovered by troopers and police around the state were to be
disposed of.
Senator Torgerson asked whether the issue was settled. Ms. Ritchie
answered in the affirmative.
14. Carlson v. State. The lawyer for the appellants was Loren
Domke and the state lawyer was Steve White. The case had
been going on since 1984, was legally complicated, and had
been to the Alaska Supreme Court twice. In 1984, certain
non-resident commercial fishermen sued the state, claiming
that the three-to-one ratio for non-resident fees violated
the U.S. Constitution. The state won at the lower court
level. The Alaska Supreme Court remanded the case for a
determination of the appropriate fee differential under the
privileges and immunities clause. The state supreme court
held that the fee differential was not inappropriate under
the commerce clause; that issue was the issue the plaintiffs
sought cert on in the U.S. Supreme Court, which refused to
take the case. However, the privileges and immunity issue
was back in the superior court for a determination. The
court had laid out a formula, and the question would be
whether the three-to-one ratio could be justified under it.
The state planned to file a series of motions in the case
with respect to the issue of refund of back fees, should the
state be held liable for any fees; she was optimistic that
this would lower potential liability for the state.
Hopefully, only a prospective issue would be left. Then, the
state would be looking at application of the formula and how
that would apply and whether under the formula the ratio
laid out in statute could be justified. She warned that the
case was still problematic, and that the state was working
towards resolution. The item listed represented the attorney
fees awarded by the Alaska Supreme Court as a result of the
most recent hearing on the issue.
Senator Torgerson asked for clarification. Ms. Ritchie pointed to
the privileges and immunities clause, which basically stipulated
that a person who happened to be in the state of Alaska had the
same privileges and immunities as a person in another state. She
added that the clause was a provision in the U.S. Constitution.
Senator Sharp asked for clarification. Ms. Ritchie replied that
the superior court had determined in the most recent hearing that
the differential was legal; that got appealed to the Alaska
Supreme Court, which found the state on one issue and remanded on
the privileges and immunities issue, and laid out the formula
looking at the expenses the state had put into the commercial
fisheries and whether that could justify the differential. The
appellants (the commercial fishers) sought cert before the U.S.
Supreme Court on the commerce clause, which was a federal
constitutional issue. The appellants felt the issue was
inappropriately decided by the Alaska Supreme Court. The U.S.
Supreme Court did not take the case, which was the end of the
particular issue. However, the privileges and immunities issue was
still in superior court. The award being discussed was entered by
the Alaska Supreme Court on the second appeal of the case, where
it determined that the superior court was incorrect on the
privileges and immunities issue, laid out what it felt was an
appropriate formula, and remanded the superior court for
application of that formula to the facts in the case. She added
that the issue was a major accounting issue with respect to the
sorts of expenses put into the commercial fisheries program.
Senator Sharp thought the appellants might not win anything. Ms.
Ritchie responded that the department was hopeful that would
happen, but that it was too early to know; the state wanted to get
the issues that could be cleared up out of the way.
Co-chair Pearce asked whether there would be more cases with
requests before the committee. Ms. Ritchie was not aware of any
large requests comparable to the permanent fund appeal the
previous year involving $5 million. She promised to keep the
committee informed if the department heard of any significant
cases.
Mr. Fisher informed the committee that there was another item
pending that had been overlooked in production of the original
bill, a net-zero supplemental request to change $29,300 in program
receipts to zero-fund match. The request related to the Medicaid
provider broad unit for FY 97. He explained that there were two
issues. First, the federal government had reservations about the
use of program receipts to match the program. Second, the unit had
had some difficulties generating the amount of program receipts
that were originally appropriated. He stated that the item would
appear in the near future.
ALASKA COURT SYSTEM
CHRIS CHRISTIANSON, STAFF COUNSEL, ALASKA COURT SYSTEM (via
teleconference), testified regarding Section 14, a request for
$44,500. He explained that the supplemental request was part of
the unfunded impact of welfare-reform legislation on the tribal
courts. As originally submitted, the request was for six months of
personal-services costs and certain one-time contractual and
equipment costs totaling $44,000. He pointed out that he had
provided the committee the previous week with a revised
supplemental request reducing the item to four months of personal
services costs for a total of $32,200. The reduction was a result
of new information received the week before that. He detailed that
the welfare-reform legislation required the Division of Motor
Vehicles (DMV) to revoke occupational licenses and drivers
licenses of individuals who were not in substantial compliance
with tribal court orders. The matter was a federal mandate. The
law applied to occupational licenses when they were being obtained
or renewed. However, it applied to all drivers licenses, whether
or not they were up for renewal. A person whose license was
revoked by DMV could appeal the revocation to the superior court
and the court must hold (?) within 20 days. The number of persons
not in compliance varied from year to year. He estimated that
approximately 15,000 were not in substantial compliance and about
10 percent of those would end up in superior court on appeal. He
anticipated a substantial number of cases related to occupational
licenses would come to the courts in the near future.
Mr. Christenson listed reasons why the costs on the backup sheet
were low. First, the assumption was that each appeal would average
only one-half hour of judicial time, which could be a low
estimate. The judge had to review the file, conduct an evidentiary
hearing, and draft (?). He assured the committee that the process
would be done the most cost-effective way possible, including
having Anchorage residents come to hearings there, while persons
outside Anchorage would participate by telephone. The second
reason for the low estimate was that under existing law, a person
could file a separate action requesting modification of child
support. Such modifications were substantially more time-consuming
than appeals. The court system did not know how many have the
option.
DEPARTMENT OF NATURAL RESOURCES
NICO BUS, BUDGET COORDINATOR, DIVISION OF ADMINISTRATIVE SERVICES,
DEPARTMENT OF NATURAL RESOURCES, testified regarding Section 4(e)
for $200,000 for emergency repair on Perseverance Trail. He
detailed that during the previous fall floods had washed the trail
and made conditions dangerous. One person had died trying to cross
a section that was iced over. The Department of Natural Resources
was asking for a supplemental because an initial attempt to put
the item in the capital budget would mean that the bid cycle would
be too late to begin construction before tourist season started.
He added that most of the money would go for contracting.
In response to a question, Mr. Bus clarified that the item was for
the Division of Parks.
Senator Parnell opined that it was unusual to have a supplemental
request for such an item. He asked whether there had ever been a
similar request. He referred to a flood that had taken a bridge in
1995 in Chugach State Park, which was only just being addressed,
and people had been living there. He asked whether people were
living (on or near) the trail. He opined that the item should be a
capital project. Mr. Bus replied that there were not people living
on the trail, but that it was heavily used by locals and tourists
alike, approximately 35,000 people per year. He argued that the
trail should be fixed as soon as possible for economic as well as
safety reasons.
Senator Sharp queried whether commercial operators paid a fee to
use the trail. Mr. Bus answered that they did pay a fee; any
commercial operator using state parks had to pay a fee, and the
amount was negotiated based on the type of activity. He offered to
get more information.
Senator Sharp confirmed that the trail was part of a state park.
Mr. Bus detailed that there was no campground, only a trail, and
that the trail was the only part under state jurisdiction.
Co-chair Pearce asked whether the state owned the land the trail
was on, and the designation of the land around the trail. Mr. Bus
answered that the state of Alaska owned the land and that
ownership was mixed. He listed the various owners of the land:
state, city and borough, and private. The trail system itself was
owned by the state Division of Parks.
Senator Parnell noted that in Chugach State Park, volunteers did
trail work. He asked whether there were local volunteers or
entities that could help with the Perseverance project. Mr. Bus
responded that most of the time, the division was good at getting
park volunteer organizations to assist with projects. He pointed
out that the capital project required significant blasting which
had to be contracted out and that the bulk of the money would to
for that. He stressed that volunteers would be used where
possible.
Co-chair Pearce asked whether the geology of the trail made it
safe enough for blasting and whether the trail would wash out in a
future storm. Mr. Bus replied that the situation would be
evaluated. He was not personally familiar with the geology. The
terrain was clearly very steep, and the plan was to set the trail
back quite a bit. The current trail was the result of early mining
activity. He distributed backup material illustrating the plans to
put the trail on rock.
Senator Parnell queried the amount of money taken by the state in
commercial operator fees on the trail. Mr. Bus did not know but
offered to get the information. Senator Parnell also wanted to
know whether the fees were collected in advance of the year of
use. Mr. Bus replied that the fee was against potential revenues
and sometimes exceeded expenditures, unless there was a major
maintenance situation such as the one described.
Senator Parnell asked when the fees were paid. Mr. Bus replied
that the fees were paid at the start of the calendar year when the
permit was applied for.
Senator Sharp reported that the pictures in the backup materials
changed his view of the problem. He had thought a slide covered up
the trail, but it was evident the trail itself had sloughed off
and down. He asked whether the damage pictured was the full extent
of the damage. Mr. Bus replied that the pictures were of the most
visible damage; there was significant deterioration further down
the trail. He reported that where the person had died was an even
narrower section that experienced icing during the winter. Further
down the trail, there was more activity.
Senator Sharp summarized that roughly $200,000 would be used. He
asked the estimated length of the trail that would be addressed
for that cost. Mr. Bus did not know the exact distance that would
be affected.
Senator Sharp asked whether other parts of the trail with
deterioration would be addressed. Mr. Bus thought the immediate
item was for emergency repair and would not entail upgrading of
the rest of the trail.
Co-chair Pearce asked whether the slides had reached the creek.
Mr. Bus answered in the affirmative. Co-chair Pearce queried
possible permitting challenges because of the stream. She did not
think the permitting could be done in the projected timeline. Mr.
Bus answered that the supplemental item would provide the money to
get the process started as soon as possible. He thought that
waiting for the capital budget would mean missing the summer
season for work.
Co-chair Pearce asked who would get the necessary permits. Mr. Bus
replied that the state would have to do the permitting.
Senator Phillips asked why the Perseverance Trail was different
than another trail going to glaciers, which had washed out in
1995.
Senator Parnell wondered whether the area had been posted off-
limits. Mr. Bus replied that the trail had been closed immediately
after the floods, but that closing the trail did not keep people
from using it. He underlined concerns about liability.
Senator Parnell was concerned about the use of volunteers because
of the timeline. He thought there was an inconsistency because Mr.
Bus had indicated that volunteers were going to be used, but there
was not enough time to organize the volunteer work. Mr. Bus
clarified that volunteers would be used but that they were only
available at certain times. The blasting had to be addressed
first. The state wanted to be in control of the process.
Senator Parnell asked whether the permitting referred to had been
evaluated. Mr. Bus believed the division had looked into the issue
but he did not know.
Senator Parnell questioned the timing of plans. He asked whether
commercial operators were being advised not to pay fees. Mr. Bus
answered that if the trail was not open they would not authorize
the commercial operators to use it. He emphasized that the
supplemental fund would give them the best chance to start the
process early.
Co-chair Pearce noted that the rest of the supplemental items
would be carried over.
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