Legislature(1993 - 1994)
04/03/1993 10:00 AM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 3, 1993 10:00 a.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair Rep. Pete Kott Rep. Gail Phillips Rep. Joe Green Rep. Jim Nordlund Rep. Cliff Davidson MEMBERS ABSENT None COMMITTEE CALENDAR HB 18: "An Act relating to police protection service areas in municipalities." COMMUNITY AND REGIONAL AFFAIRS COMMITTEE SUBSTITUTE PASSED OUT WITH NO RECOMMENDATION *HB 254: "An Act relating to open meetings of governmental bodies; and amending Rule 82 of the Alaska Rules of Civil Procedure." JUDICIARY COMMITTEE SUBSTITUTE PASSED OUT WITH A DO PASS RECOMMENDATION HB 167: "An Act relating to air quality control and the prevention, abatement, and control of air pollution; relating to civil and criminal penalties, damages, and other remedies for air quality control violations; clarifying the definition of `hazardous substance' to include releases and threatened releases to the atmosphere; amending the lien provisions relating to the oil and hazardous substance release response fund; relating to inspection and enforcement powers of the Department of Environmental Conservation; and providing for an effective date." NOT HEARD IN COMMITTEE * First public hearing. WITNESS REGISTER REP. CON BUNDE Alaska State Legislature Capitol Building, Room 112 Juneau, Alaska 99801-1182 Phone: 465-4843 Position Statement: Prime sponsor of HB 18 RICHARD BURTON, Commissioner Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 Phone: 465-4322 Position Statement: Opposed HB 18 REP. JOHN DAVIES Alaska State Legislature Court Building, Room 604 Juneau, Alaska 99801 Phone: 465-4457 Position Statement: Opposed HB 18, Opposed HB 254, Prime Sponsor of HB 37 REP. AL VEZEY Alaska State Legislature Capitol Building, Room 102 Juneau, Alaska 99801-1182 Phone: 465-3719 Position Statement: Prime Sponsor of HB 254 KENT SWISHER, Executive Director Alaska Municipal League 217-2nd Street Juneau, Alaska 99801 Phone: 586-1325 Position Statement: Supported HB 254 LARRY PERSILY, Managing Editor Juneau Empire 3100 Channel Drive Juneau, Alaska 99801 Phone: 586-8025 Position Statement: Opposed HB 254 WENDY REDMAN, Vice President University Relations University of Alaska 910 Yukon Drive Fairbanks, Alaska 99775-2388 Phone: 474-7582 Position Statement: Supported HB 254 ROSALEE WALKER, President Alaska Municipal League 217-2nd Street Juneau, Alaska 99801 Phone: 586-1325 Position Statement: Supported HB 254 PREVIOUS ACTION BILL: HB 18 SHORT TITLE: FEES FOR POLICE PROTECTION BY STATE BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) BUNDE TITLE: "An Act relating to police protection service areas in municipalities." JRN-DATE JRN-PG ACTION 01/04/93 29 (H) PREFILE RELEASED 01/11/93 29 (H) READ THE FIRST TIME/REFERRAL(S) 01/11/93 29 (H) CRA, JUDICIARY, FINANCE 03/18/93 (H) CRA AT 01:00 PM CAPITOL 124 03/19/93 (H) CRA AT 01:30 PM CAPITOL 124 03/19/93 (H) MINUTE(CRA) 03/22/93 727 (H) CRA RPT CS(CRA) 2DP 2DNP 3NR 03/22/93 727 (H) DP: TOOHEY, BUNDE 03/22/93 727 (H) DNP: WILLIS, DAVIES 03/22/93 727 (H) NR: SANDERS, OLBERG, WILLIAMS 03/22/93 727 (H) -FISCAL NOTE (DPS) 3/22/93 03/25/93 (H) MINUTE(CRA) 04/03/93 (H) JUD AT 10:00 AM CAPITOL 120 BILL: HB 254 SHORT TITLE: OPEN MEETING ACT BILL VERSION: SPONSOR(S): STATE AFFAIRS TITLE: "An Act relating to open meetings of governmental bodies; and amending Rule 82 of the Alaska Rules of Civil Procedure." JRN-DATE JRN-PG ACTION 03/26/93 793 (H) READ THE FIRST TIME/REFERRAL(S) 03/26/93 794 (H) JUDICIARY 03/30/93 (H) STA AT 08:00 AM CAPITOL 102 03/30/93 (H) MINUTE(STA) 04/03/93 (H) JUD AT 10:00 AM CAPITOL 120 BILL: HB 167 SHORT TITLE: AIR QUALITY CONTROL PROGRAM BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) HANLEY TITLE: "An Act relating to air quality control and the prevention, abatement, and control of air pollution; relating to civil and criminal penalties, damages, and other remedies for air quality control violations; clarifying the definition of `hazardous substance' to include releases and threatened releases to the atmosphere; amending the lien provisions relating to the oil and hazardous substance release response fund; relating to inspection and enforcement powers of the Department of Environmental Conservation; and providing for an effective date." JRN-DATE JRN-PG ACTION 02/19/93 390 (H) READ THE FIRST TIME - REFERRAL(S) 02/19/93 390 (H) JUDICIARY, FINANCE 03/05/93 (H) JUD AT 01:00 PM CAPITOL 120 03/05/93 (H) MINUTE(JUD) 03/10/93 (H) JUD AT 01:00 PM CAPITOL 120 03/10/93 (H) MINUTE(JUD) 04/01/93 (H) JUD AT 07:00 PM CAPITOL 120 04/01/93 (H) MINUTE(JUD) 04/01/93 (H) MINUTE(JUD) 04/03/93 (H) JUD AT 10:00 AM CAPITOL 120 ACTION NARRATIVE TAPE 93-51, SIDE A Number 000 CHAIRMAN BRIAN PORTER called the House Judiciary Standing Committee meeting to order at 10:17 a.m. on April 3, 1993. A quorum was present. HB 18: FEES FOR POLICE PROTECTION BY STATE CHAIRMAN PORTER announced that the committee would take up HB 18 first. Number 021 REP. CON BUNDE, PRIME SPONSOR OF HB 18, stated that HB 18 provided a mechanism for local communities without police protection or without a desired level of police protection to form service areas and obtain the desired level of police protection. Under HB 18, the service areas would be provided with a cost estimate by the Department of Public Safety (DPS). The residents of a certain area would then vote to accept the costs before a service area was formed. At that point, DPS would begin providing services, and residents of the service area would be assessed fees. REP. BUNDE stressed that residents of a service area would determine the level of police protection provided to them. He stated his intention that all areas of the state have access to a certain level of police protection, or have the ability to augment existing services. He expressed his opinion that the fiscal note provided by DPS was inaccurate, because it was too early to determine the size and magnitude of the service areas residents would want. He also noted the pressing need for HB 18 because of anticipated budget cuts at DPS, including a 39% reduction of force in the Anchorage state troopers post. Number 151 COMMISSIONER RICHARD BURTON, from DPS, joined the committee to testify in opposition to HB 18. He stated that the fiscal note provided by his department was accurate, based on estimates for a force provided on the Anchorage Hillside. He stated that DPS was not providing an adequate level of service for the Hillside, as well as other areas of Alaska, but commented that HB 18 was not the solution in the administration's point of view. He stated that it was bad public policy for a portion of a home-rule, first-class municipality like Anchorage to refuse to pay for local service, but to try and compel the state to provide trooper service at a lower cost. He also noted two flaws in the bill, the first allowing residents in an area already with police service the opportunity to contract for state trooper service, the second being the ambiguity of language involving the level of service determinations. Number 258 REP. JEANNETTE JAMES asked if HB 18 might also be used to provide state trooper protection for the Healy area in the Denali Borough. Number 266 COMMISSIONER BURTON stated that Healy was an unincorporated area, with no structured government. He asked rhetorically who would sign the checks, collect the fees and assess the contract level in such an area. REP. JAMES asked if HB 18 might open the door to providing such service in the future. (CHAIRMAN PORTER noted the arrival of Rep. Kott and Rep. Davidson at 10:22 a.m.) COMMISSIONER BURTON stated that under the Alaska Constitution, the legislature could sit as an assembly for unincorporated boroughs, which he stated that the body ought to do, in his opinion. Number 296 REP. DAVIDSON asked if HB 18 was an attempt to allow Hillside residents to continue to receive police protection from DPS for free. Number 307 COMMISSIONER BURTON stated that he could not say that. He noted that the state could do the work cheaper than the City of Anchorage had estimated that an expansion in service would cost. (CHAIRMAN PORTER noted the arrival of Rep. Nordlund at 10:24 a.m.) Number 314 REP. DAVIDSON asked if a Village Public Safety Officer (VPSO) styled program might be an option for areas like the Anchorage Hillside. Number 323 COMMISSIONER BURTON stated that the VPSO program would not apply to such an area. Besides that, in an unincorporated area, the barriers to collecting money for the service would still exist. Number 330 REP. PHILLIPS asked for a brief history of the Hillside police dispute for those who did not live in the Anchorage area. Number 338 COMMISSIONER BURTON outlined the history of the three areas within the state with unified governments (combined municipality and borough), and noted that some had claimed the right in their charters to establish police service unilaterally, and then assess taxes. In the case of Anchorage, when the governments were combined, no such claim was made to establish police services and assess taxes, and that it has never been done since. Number 374 CHAIRMAN PORTER, a former police chief in Anchorage, further explained that when the City of Anchorage and the borough combined, the city provided services within the city limits that were not provided in certain areas of the borough. He explained that the charter was written so that some areas were to be set aside as separate service areas and that the city could provide service if the entire municipality voted to do so, and if the service area agreed. He noted that the issue of police service in the Hillside and Girdwood service areas had gone to the voters at least three or four times, and had passed the borough, but not the service areas. Now, he said, the latest sales tax provision would provide for police service districts outside the Hillside, which meant that for Hillside residents to benefit from the area wide tax, they would have to vote in favor of the police service. Number 415 REP. DAVIDSON asked why the municipality always voted in favor of police service but the Hillside did not. Number 424 CHAIRMAN PORTER stated that one reason was the "home-car" program, in which Anchorage Police Department (APD) officers were allowed to take patrol vehicles home, and that the Hillside benefited because many APD officers lived there. Number 450 REP. PHILLIPS stated that in her experience with municipal governments, she had noticed that when a referendum was taken on an issue involving permission, it usually passed easily, but when money was on the line, it did not. Number 459 COMMISSIONER BURTON had a final comment. He noted that DPS at one time had eleven patrol contracts in a number of Alaska cities, and that the arrangement proved to be inoperable. He stated that under this arrangement, troopers were being called before local authorities and told they were not expected to enforce certain laws against certain residents. He stated that DPS simply could not serve two masters. Number 492 REP. DAVIDSON stated that it appeared to him that HB 18 was addressing a local problem that should be addressed locally. He said that with the budget difficulty facing DPS, he could not support HB 18. Number 504 REP. JOHN DAVIES joined the committee to oppose HB 18. He said that HB 18 appeared to be unconstitutional under Article Ten, Section Eight of the Alaska Constitution, because that article prohibited the establishment of a service area if the area in question could have service provided through the annexation of an existing service area, or incorporation into a city. Number 521 REP. BUNDE rejoined the committee to clarify some points. He noted that HB 18 did not address just the Hillside, but that Healy, Wasilla, Juneau and other areas had similar problems. He noted that Girdwood was part of the Municipality of Anchorage, and had adopted only the services it wanted. Consequently, the area did not pay for many municipal services, including police services. Number 587 REP. DAVIDSON asked about the apparent constitutionality issue raised by Rep. Davies, and why a similar contract offer could not be made to the municipality. REP. BUNDE stated that HB 18 would provide residents with the greatest possible latitude to contract with whomever they wanted. He cited an Alaska Municipal League (AML) study on government roles. He explained the AML's support of a change to Title 29 to allow such contracts, and said that he did not see a problem in making such a change. Number 625 REP. DAVIDSON asked if a statute change was needed for the Hillside to contract with the municipality. REP. BUNDE stated that it would not be needed. REP. PHILLIPS concurred. Number 632 REP. DAVIDSON moved to hold HB 18 in committee in order to determine if there was a need from other areas in the state. REP. PHILLIPS objected. THE MOTION TO TABLE HB 18 failed by a 4-3 vote with Reps. Davidson, Nordlund and Porter voting to table and Reps. Phillips, Kott, Green and James voting not to table. Number 647 REP. PHILLIPS moved passage of HB 18 from the committee. HOUSE BILL 18 was PASSED OUT OF COMMITTEE by a 4-3 vote with Reps. Green, Kott, Phillips and James voting yes and Reps. Davidson, Nordlund and Porter voting no. HB 254: OPEN MEETING ACT Number 653 CHAIRMAN PORTER read the title of HB 254 and called for a sponsor statement. Number 663 REP. DAVIDSON asked if HB 254 was properly before the committee under the Uniform Rules of the Legislature. Number 669 CHAIRMAN PORTER stated that it had been. He said that he had notified the House Rules Committee, under Rule 23, the previous Saturday that he wanted to hear HB 254; he had posted the meeting notice on Saturday; and he had made an announcement on the floor on Monday. He stated that he was confident that the five-day rule had been satisfied. He also stated that even though the information had not been turned into the Chief Clerk by the previous Wednesday, there was no prohibition on revising a previously submitted schedule. Number 692 REP. DAVIDSON noted the existence of a house bill with a lower number also dealing with the Open Meetings Act, and stated that it was customary to consider both bills. CHAIRMAN PORTER stated that a hearing on the bill to which Rep. Davidson referred (HB 37) had not been scheduled, that the bill was not before the Judiciary Committee, but that he was sure that there would be some discussion of the bill, if only for purposes of comparison to HB 254. Number 714 REP. NORDLUND called the committee's attention to an opinion from Division of Legal Services attorney Tam Cook stating the chairman's intent to hear HB 254 had indeed met the five-day rule, but not the previous Thursday rule. He stated that there was a need to modify the Thursday rule. Number 732 CHAIRMAN PORTER stated that the Thursday rule was in existence for the benefit of the Chief Clerk's office, and that the five-day rule was the driving rule behind most notice requirements. Number 744 REP. DAVIDSON stated that it was not his intent to prevent the hearing from occurring, but he wanted to make sure that the committee was following the Open Meetings Act (OMA) which it was considering modifying. Number 756 REP. PHILLIPS referred back to the opinion issued by Tam Cook with respect to the lack of consistency on compliance with the rules and agreed with Rep. Nordlund that the Uniform Rules should be amended in some way. Number 769 REP. AL VEZEY, PRIME SPONSOR OF HB 254, explained that under the Rules Committee's current interpretation, in the event of a Saturday meeting, the five-day rule was satisfied with a Monday notice. He stated that the number of lawsuits filed over alleged Open Meetings Act violations was the driving force behind HB 254. He stated that in order for business to go on as it should, there was a need for a single standard for all governments to follow, and that any governmental body could adopt more stringent standards if it wished. He stated that HB 254 also attempted to reduce the number of frivolous lawsuits filed, and that it also required those who would file suits to justify their actions. Among other changes, HB 254 eliminated the requirement that all agency materials under consideration be provided at teleconference sites, because the omission of any material would provide grounds for an OMA violation, and also allowed some votes under teleconference to be taken by voice. TAPE 93-51, SIDE B Number 000 REP. VEZEY continued his testimony on HB 254. He outlined the exemptions for various public bodies with respect to personnel matters. He also outlined the changes in the requirements for the voiding of an act made in violation of the OMA. Under the old OMA, any act taken in violation was automatically voided. Under HB 254, any act could be voided by an order of the court. He also explained that for any person filing an OMA court case, each party would pay its own legal costs. He stated that this would help to prevent frivolous lawsuits. Finally, he explained that the definition of a meeting was two or more persons, but not less than a quorum of a body. Number 076 REP. PHILLIPS stated that she felt Sections 2 and 3 on page 2, dealing with personnel matters, were duplicative. Number 096 REP. VEZEY stated that he kept Sections 2 and 3 much the same out of respect for the original drafters of the OMA. He also stated that he saw a difference between judging the character of a candidate and the judging of professional qualifications. Number 125 REP. PHILLIPS stated that she still found Sections 2 and 3 duplicative but would not object to their inclusion. Number 129 REP. DAVIDSON asked to hear the reasoning behind having those who would file an OMA suit bear their own court costs. Number 138 REP. VEZEY stated that all a governing body would have to do after a successful OMA lawsuit would be to hold an OMA friendly meeting and pass the same act again. He noted that most governmental bodies were easy targets for the OMA, even for some inconsequential reasons. He stated that HB 254 would make filing and defending suits more equitable. Number 155 REP. DAVIDSON asked rhetorically why not just have a more careful, open government to start with. Number 164 REP. VEZEY stated that he knew that no one would argue against that, but whether the OMA had been violated should come down to a determination of fact, which should be done by a jury. Number 167 REP. NORDLUND asked if HB 254 would deny citizens access to the court. Number 174 REP. VEZEY said that he did not see it that way, because an OMA lawsuit would be a valid pro bono case for many attorneys, and also because most OMA violations were fairly simple matters: a determination of if they did or did not occur. Number 190 REP. NORDLUND stated that a municipality or the state could very easily make a lawsuit a very expensive process if it wanted to by simply prolonging the case, which would effectively prevent people from filing a case. Number 198 REP. VEZEY stated that any body could redo its actions even after an OMA violation was found, and after a court's determination. He also stated that the final judge of any OMA violation would be the electorate, which could easily remove officers who violated it. Number 216 KENT SWISHER, EXECUTIVE DIRECTOR OF THE ALASKA MUNICIPAL LEAGUE (AML), joined the committee to testify in favor of HB 254, and also in favor of HB 37. He stated that the AML's biggest concern was clarifying the law to set a clear standard for open meetings. He stated that when the original 1964 law was passed, officials knew what a meeting was, and that made following the OMA fairly easy. Since then, very few governments knew what a legal meeting was because of conflicting court decisions pertaining to Cordova and Fairbanks. He stated that the League preferred HB 254's definition of a meeting, but it also liked the processes set down in HB 37. He noted that in some cases, governments did have the need for closed meetings, such as when they needed to consult with their lawyers. He urged the committee to draft the statute to include a recognition of those needs. He also called for changes to cover the need to meet in an emergency, with little or no notice. He was also concerned about meetings that might be held with constituents, or attendance at conventions or workshops. Number 402 REP. DAVIDSON asked if he believed that HB 254 would encourage members of a governmental body to do more talking in the open. Number 410 MR. SWISHER said that if the body were not in violation of the OMA, then it would encourage such communication between officials and constituents. Number 419 REP. DAVIDSON asked if the AML would have a problem, in the case of a governmental body with eleven people in its membership, with a quorum of six, if five people were to meet and talk about policy before the next meeting. Number 425 MR. SWISHER stated that there would be no problem, since the statute would prevent the body from taking action. He stated that since there was no quorum, there could be no violation. REP. DAVIDSON asked if Mr. Swisher saw no problem with those private discussions. Number 438 MR. SWISHER stated that if any discussion were allowed in private, then there would probably be less in public, but it simply was a matter of judgment. He stated that AML's policy was that anything less than a quorum should be allowed to discuss business without violating the OMA. Number 443 REP. DAVIDSON asked what kind of items should be covered in one of those judgment calls. Number 448 MR. SWISHER said that people simply wanted a common standard that everyone could follow: an unarguable and clear standard. Number 457 REP. DAVIDSON asked how people would determine, or judge, when they were crossing the line of actually doing public business in private. Number 460 MR. SWISHER stated his position that less than a quorum should be the standard, and the line of judgment for a council was already established and observed even under the current law. Number 475 LARRY PERSILY, MANAGING EDITOR OF THE JUNEAU EMPIRE, joined the committee to testify in opposition to HB 254. He stated that HB 254 was not needed and was not a simple clarification of existing law. He claimed that HB 254 would diminish the public's ability to learn the hows and whys behind public decisions. He stated that Section 1 would dilute the ability of the public to follow policy at teleconferenced meetings. He stated that Section 2 would give policy makers a broad exclusion for hiding public business behind the attorney-client privilege. He claimed that Section 4, which dealt with legal costs, would build a barrier to enforcing the OMA. He said that defining any meeting as a quorum was overkill, and that such a broad exclusion would allow several people to meet in private to hide something. He stated that often, it was not necessary to have a quorum for a decision to be made. In conclusion, he stated that the current OMA was not the problem, just those who would violate it. Number 572 WENDY REDMAN, VICE PRESIDENT FOR UNIVERSITY RELATIONS, UNIVERSITY OF ALASKA, testified in favor of HB 254. She stated that the University was not covered by a lawsuit, but had filed amicus curiae briefs in relation to other cases. She stated that the current OMA had had a chilling effect on business done by the University's Board of Regents. Number 585 ROSALEE WALKER, PRESIDENT, ALASKA MUNICIPAL LEAGUE, testified in favor of HB 254. She referred back to Mr. Persily's comments that he knew of no one filing an OMA suit on the basis of meetings away from home at conferences, and noted that the Fairbanks OMA case grew out of an alleged meeting at the National League of Cities meeting in Washington, D.C. She stated that anytime an unpopular decision was made, members of the public who were angry used the OMA for an easy way to protest the decision. She stated that the root problem was that no one had a definitive answer for what constituted an official meeting. She stated that the current OMA was causing public officials to engage in silly behavior, citing one Christmas when some assembly members placed an advertisement in the newspaper declaring that they would invite other public officials to dinner. In Nome, another public official was forced to change his dentist because the dentist became a member of a council on which the original official served. Number 634 REP. JOHN DAVIES, PRIME SPONSOR OF HB 37, joined the committee to testify in opposition to HB 254. He objected to the committee hearing itself, stating that it was in violation of the previous Thursday rule. He also objected to having only one hearing on Open Meetings, and to the meeting not being teleconferenced. He further objected to the hearing of HB 254 instead of HB 37, noting that it had been standard procedure to use the lower numbered bill on similar topics as the vehicle of discussion. As for the subject itself, he noted that the reason behind huge legal debts in previous OMA cases, including the Cordova case, was the filing of lawsuits against individuals. He stated that if HB 37 had been in effect, such lawsuits would not have been likely, and called for the committee to add such provisions to HB 254. He refuted the minimum standard claim that municipalities could institute higher standards, because they would not be held liable for that, based on legal precedents that a body could suspend its own rules. He also objected to the removal of the requirement that agency materials be available at teleconference sites, saying that the state would probably rely more on teleconferences in the future in order to save money, and that if the public did not have access to materials, it would be hard to follow the discussion. As for attorney- client privilege, he urged the committee to take care in modifying the statute. He stated that the relationship between an assembly and its attorney in executive session was different than that of an individual and his or her attorney. TAPE 93-52, SIDE A Number 000 REP. DAVIES said that exempting hospitals from OMA requirements was simply a mistake and urged the committee not to allow it. He did agree with changing the language automatically voiding actions taken in violation of the OMA, because the decision should be examined in court, and because the decision itself might actually be the right one. He objected to making OMA plaintiffs pay their own court costs, saying that it would disenfranchise the public. He stated that the million dollar plus Cordova case was an exception. He said that the key point of debate centered around the definition of a meeting. He noted that HB 37 called for a majority of a quorum, and said that it was best to set a minimum standard to safeguard the right of the public to know. He stated that allowing one less than a quorum to meet in private would circumvent the intent of the framers of the original OMA. In conclusion, he asked for more hearings on OMA, including HB 37, and asked for teleconferences on the topic. CHAIRMAN PORTER noted the introduction of several amendments to be considered. Number 258 REP. NORDLUND introduced what he called a compromise position between the Vezey bill and what the press association wanted. He introduced the first amendment, labeled "J.9", deleting the provision for both parties to pay their own court costs. It also eliminated the possibility for individual lawsuits; it allowed the court to void an action unless it was in the best interest of the public; and it deleted the reference to Rule 82 of the Alaska Rules of Civil Procedure. REP. PHILLIPS objected to the amendment, saying that individual members of a governing body were already protected to some degree. REP. NORDLUND stated that he drew the clause in because of the Cordova case, in which several members hired individual lawyers. CHAIRMAN PORTER stated that hiring a lawyer must be an individual choice. Number 352 REP. JAMES suggested getting rid of Rule 82, saying that the possibility of negotiated settlements would increase. Number 356 CHAIRMAN PORTER called for more discussion. Seeing none, he called for a vote. Amendment 1 failed by a 5-2 vote with Reps. Davidson and Nordlund voting yes and Reps. Phillips, Green, Kott, James and Porter voting no. Number 365 REP. NORDLUND asked to get the sense of the committee on the issue of both parties having to pay court costs. He asked if the committee would force a plaintiff to pay his or her own costs only if he or she lost. He stated that a total exemption went too far, especially if one party had a good case, but did not have the money to pay for it. Number 379 CHAIRMAN PORTER replied that it was necessary to reduce the number of lawsuits as well as court costs, and that he would support the suggested amendment. He allowed a verbal amendment to be introduced. REP. NORDLUND moved such an amendment. REP. PHILLIPS objected. Number 401 REP. DAVIDSON spoke in favor of the amendment, saying that without the change, the state would become the state of the privileged, those who could pay for suits. Number 422 REP. PHILLIPS took the opposite stand, saying that it was not a right to sue, but rather a privilege. She said that a person might have the privilege to sue, but the state should not be obligated to pay. Number 434 REP. DAVIDSON stated that privilege based on the ability to pay was wrong. Number 444 CHAIRMAN PORTER noted the existence of legal organizations which helped needy people, including Alaska Legal Services. Number 454 REP. DAVIDSON stated that the agency had a huge case load, and faced major budget cuts. REP. JAMES noted that anyone could sue for almost anything. She said that the state must pursue settlements. Number 485 REP. KOTT stated that an OMA suit was often a tool used to embarrass groups. He theorized what would happen to a Citizens Advisory Group if it were taken to court by a major corporation for an alleged OMA violation. He stated that it would be very easy for the company to eliminate the group by prolonging the case. Number 509 CHAIRMAN PORTER stated that there were remedies in the law to specious litigation, but they were not adequate. Number 517 REP. DAVIDSON agreed that anyone could accuse anyone of anything, but noted that there was a right to appeal, and was thankful it was that way. He stated that allowing the state to pay for that process was part of democracy. Number 535 REP. PHILLIPS stated that there was nothing in HB 254 that denied a citizen the right to sue. It only stated that if someone sued, they would be responsible for the costs. Number 545 CHAIRMAN PORTER called for a vote on the amendment. Amendment 2 failed by a 4-3 vote. Reps. Nordlund, Davidson, and Kott voted yes; Reps. Phillips, Green, James and Porter voted no. Number 559 REP. NORDLUND then introduced Amendment 3 (labeled "J.7"), dealing with notice requirements for a meeting. It added provisions for announcements of the subjects to be covered, as well as allowing for a 72-hour notice period except for emergency meetings. Number 570 REP. PHILLIPS noted that such a provision was already set in local ordinances in several communities. She asked for comment by Mr. Swisher to verify that most local meetings were advertised already. Number 583 MR. SWISHER stated that the League had always thought that 24 hours was reasonable notice, but some court decisions, such as in an Anchorage School Board case, held that five days' notice was not considered adequate for certain topics. He objected to the 72-hour notice, saying that some areas did not have daily newspapers, and changing an agenda would be difficult. He stated that the League was not as concerned about "reasonable notice" as it was about emergency action. Number 605 REP. PHILLIPS stated that amendment to Title 44 was not the right place to deal with notice, but rather in Title 29. She also stated that it would be more appropriate to allow the municipalities to request any changes desired. Number 610 REP. NORDLUND stated that the change would affect more than just the municipalities. He stated that it would guarantee that all people would be given notice for all governing bodies 72 hours in advance. He asked Mr. Swisher if the League would like more clarification on what constituted reasonable notice. Number 618 MR. SWISHER stated that the League would like clarification on notice required in emergency situations. REP. PHILLIPS asked why that could not be handled at the local level. CHAIRMAN PORTER noted the diversity of the state and the difficulty in setting a statewide minimum. Number 641 REP. JAMES stated that she would like to see a clarification on emergency meetings, but did not like setting a statewide 72-hour standard. Number 659 CHAIRMAN PORTER noted the time to see if the meeting might be over in time for a previously announced caucus. He then announced that HB 167 would be deferred for hearing until the following Monday. Number 669 REP. NORDLUND again spoke in support of the amendment, and noted the points made by Mr. Swisher and members of the committee, and stated that he was having second thoughts on the 72-hour notice. He asked to divide the question. Number 676 CHAIRMAN PORTER agreed that subjects should be noticed for meetings, and noted the need for emergency provisions to be made. He asked for suggestions. Number 683 REP. JAMES wondered about the standard notice requirements, and expressed concern that such requirements might preclude discussions on topics brought up at a meeting, such as topics that might be brought up by members of the public. Number 697 REP. PHILLIPS stated that municipal governments always used a notice of "comments by the public" to allow for such possibilities. Number 705 REP. DAVIES rejoined the committee and agreed that such requirements were already part of Title 29. He noted that Title 29 only covered municipal entities, but not the University or advisory councils. He stated that without changing the OMA, such bodies would not be covered by notice requirements. Number 720 CHAIRMAN PORTER suggested amending the amendment to strike the words from "Except as provided" to "except that a shorter notice" and inserting "a meeting can be convened provided a body finds an emergency exists." Number 731 REP. DAVIES suggested another adjustment in the language to allow for emergency proceedings. Number 756 CHAIRMAN PORTER read the finalized version of the amendment, which struck the section starting with "except as provided" and ending with "the meeting." The amendment also struck the next three lines starting with "except that" and placed it after a comma that the committee added after the fourth word in line two, "under this section." The verbatim amendment would read as: (e) "Reasonable public notice shall be given for all meetings required to be open under this section, except that a short notice period may be provided if, upon convening, the governing body adopts a finding that an emergency exists that justifies the shorter notice period. The finding must describe the nature of the emergency. The notice must include the date, time, subjects to be considered, and place of the meeting and, if the meeting is by teleconference, the location of any teleconferencing facilities that will be used. In addition to the publication required by AS 44.62.175(a) in the Alaska Administrative Journal, the notice may be given by using a combination of print and broadcast media." Number 770 REP. PHILLIPS stated that she was in favor of the amendment as revised. REP. NORDLUND also affirmed his support. Number 786 CHAIRMAN PORTER, after hearing general discussion, called for comments on Amendment 3. Hearing none, he asked if there were any objections to its adoption. There were none, and Amendment 3 was adopted by the committee. TAPE 93-52, SIDE B Number 000 REP. NORDLUND introduced Amendment 4 (labeled "J.6"), which mandated roll call votes during teleconferenced meetings, but also provided for votes by unanimous consent. Number 023 CHAIRMAN PORTER objected in order to discuss the amendment. He stated that he was trying to figure out a way to vote besides voice votes or unanimous consent. Members pointed out that hands could be raised, which was traditionally not done in the House. Chairman Porter then removed his objection. He then asked if there were any more objections. Hearing none, Amendment 4 was accepted by the committee. Number 055 REP. NORDLUND then introduced Amendment 5 (labeled "J.5"), which deleted the word "agency" in the sentence on lines 1 through 3 on page 2. REP. PHILLIPS objected to Amendment 5. Number 059 REP. NORDLUND stated that requiring that all materials be available at teleconference sites was unreasonable. He suggested changing the amendment to read that a reasonable effort to provide materials would be better. Number 077 REP. JAMES stated that she was not sure the amendment was needed, since the effort was already being made. Number 081 REP. PHILLIPS stated that most teleconference sites already had bills and other materials before hearings started, and that paper was always coming in. She stated that it would be unreasonable to stop the meeting and fax new materials to every teleconference site. Number 100 CHAIRMAN PORTER stated that such a requirement would be unreasonable, especially in light of amendments being offered, committee substitutes being considered, and written testimony being submitted. The other concern, he stated, was that there would be additional teleconference sites added at the last minute which would expect to have the material sent. Number 126 REP. DAVIDSON suggested amending HB 254 to include relevant materials that were requested at the teleconference sites. Number 134 REP. PHILLIPS stated that that was already being done. Number 141 REP. DAVIDSON said that it seemed to him that not all sites would want material that was added to meeting materials. Number 173 REP. PHILLIPS stated that it was unreasonable to expect an extension of the provision of such materials, and that to extend it further would expose public entities to lawsuits. Number 179 CHAIRMAN PORTER stated that was his concern about making such an amendment. He stated that if the legislature was writing specifically for itself, mechanisms were in place for protection, but the OMA revision was being written for everyone. Number 186 REP. NORDLUND suggested changing the word "shall" to "may" on line 3, which would provide a disclaimer. Number 195 CHAIRMAN PORTER called for objections to Amendment 5, as amended. There were no objections and the amendment was adopted. Number 199 REP. NORDLUND then offered Amendment 6 (labeled "J.8"), which specified that a majority of a quorum would constitute a meeting, and that it would be permissible for two people to meet unless they constituted a quorum. Amendment 6 also would prohibit serial meetings. Number 217 REP. NORDLUND moved Amendment 6. REP. PHILLIPS objected. Number 224 REP. PHILLIPS moved deleting all language but the final sentence beginning with "Attendance of members..." and ending with "...circumventing this section." Number 249 REP. JAMES stated that there was a need for a clause prohibiting a series of meetings, including telephone calls. Number 264 REP. NORDLUND asked if he should withdraw his amendment. CHAIRMAN PORTER referred back to the original amendment deleting all but the final sentence. He then called for a vote. Amendment 6 was amended to delete all but the last sentence by a 5-2 vote. Reps. Phillips, Green, Kott, James, and Porter voted yes; Reps. Davidson and Nordlund voted no. Number 279 CHAIRMAN PORTER called for a vote on Amendment 6 as amended. There were no objections. Amendment 6, as amended, was adopted. Number 319 REP. DAVIDSON proposed Amendment 7, which was identical to the first two sentences from the original version of Amendment 6. REP. PHILLIPS objected. REP. DAVIDSON called for more testimony from Rep. Davies. Number 350 REP. DAVIES stated that he had three rationales for the majority of a quorum standard. He said that Alaskans simply were not comfortable with a quorum as the determining factor for a meeting. Secondly, he stated that the intent of Section 3.12 of the OMA provided that the deliberative process should be open as well. Finally, he said, the courts had stated that if any group met that could control the final outcome of a decision, such as the override of a veto or the prevention of an override, regardless of what the OMA standard was, then the OMA was violated. Number 376 REP. DAVIDSON stated that the intent of the amendment was then to meet the legal standards as defined by Rep. Davies. Number 384 REP. VEZEY was called to testify on the control issue. He stated that he did not look into the veto issue, but in the event of an override, an issue would have already been through the legislative process. He stated that it appeared that the legislature was trying to write common sense into law, and he said that common sense could not be legislated. He stated that the goal was not to legislate common sense, but to take the courts out of legislative business. He spoke in favor of the quorum standard, because it would take chance or social meetings into account and eliminate the possibility of litigation. Number 417 REP. PHILLIPS stated that in her experience, many times during her municipal career she was forced to car pool with other female members during late night meetings, and if a majority of a quorum standard were instituted, they would be in violation. She stated that the practicality of working in small town legislatures would be defeated by such a standard. Number 434 REP. VEZEY also commented on the use of the courts to govern elected officials. He stated that there might be an abuse of position by legislators, but that eventually the voters would get rid of them. He stated that the effect of allowing courts to govern legislators would make government unwieldy. Number 454 REP. DAVIDSON stated that the higher standard was an attempt to legislate checks and balances, and that there should be a creative attempt to amend the OMA to take into account Alaska's peculiarities. Number 477 CHAIRMAN PORTER called for a vote on Amendment 7, which failed by a 5-2 vote. Reps. Green, Kott, Phillips, James, and Porter voted no; and Reps. Davidson and Nordlund voted yes. Number 490 REP. NORDLUND moved Amendment 8, which would prevent serial meetings between members of a governing body. REP. PHILLIPS objected. Number 525 CHAIRMAN PORTER noted that consensus taking was a normal function of government and that it was a philosophical argument. He stated that he did not know of any body that did not do it, in order to help manage time. Number 535 REP. PHILLIPS agreed with the chairman, saying that consensus taking was a normal function of the process. She stated that no one could take votes over the phone, no one could make a decision, and no one could take action. She stated that it was ridiculous asking officials not to gather information. Number 544 REP. JAMES stated that there were some times when phone calls could be used in the decision making process outside the public's knowledge, and that she would like to see an amendment to handle serial meetings. Number 561 REP. DAVIDSON called for HB 254 to be held over. CHAIRMAN PORTER noted that the deadline for moving bills was April 3, 1993. Number 570 REP. JAMES pointed out that HB 254 was important legislation that could easily be amended on the floor. She stated that it was important to move HB 254. Number 578 CHAIRMAN PORTER called for a vote on Amendment 8, which failed by a 5-2 vote, with Reps. Green, Kott, Phillips, James and Porter voting no; and Reps. Nordlund and Davidson voting yes. Number 581 REP. DAVIDSON spoke in opposition to moving HB 254 from committee. Number 593 REP. JAMES moved passage of HB 254 (as amended) from committee with individual recommendations. REP. DAVIDSON objected. Number 597 HOUSE BILL 254 (as amended) was MOVED FROM COMMITTEE by a 5- 2 vote. Reps. Kott, Phillips, Green, James, and Porter voted yes; and Reps. Davidson and Nordlund voted no. Number 608 ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 1:10 p.m.