Legislature(1993 - 1994)

04/03/1993 10:00 AM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                               
  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."                                               
            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                                                                
  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                    
  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 -                            
  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                 
  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                   
  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                    
  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                        
  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                  
  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                     
  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                   
  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                                                                   
  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                     
  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                         
  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                                                                   
  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                                                                   
  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                                                                   
  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                      
  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                  
  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                       
  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                 
  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                   
  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                     
  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                   
  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                      
  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                       
  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                  
  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                   
  Number 490                                                                   
  REP. NORDLUND moved Amendment 8, which would prevent serial                  
  meetings between members of a governing body.  REP. PHILLIPS                 
  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                 
  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                      
  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                                                                   
  CHAIRMAN PORTER adjourned the meeting at 1:10 p.m.                           

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