Legislature(1993 - 1994)
01/25/1994 08:00 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE January 25, 1994 8:00 a.m. MEMBERS PRESENT Representative Al Vezey, Chairman Representative Pete Kott, Vice Chairman Representative Bettye Davis Representative Gary Davis Representative Jerry Sanders Representative Harley Olberg Representative Fran Ulmer MEMBERS ABSENT None COMMITTEE CALENDAR HB 277: "An Act relating to public employers defending and indemnifying public employees with respect to claims arising out of conduct that is within the scope of employment." HEARD AND HELD HJR 22: Proposing amendments to the Constitution of the State of Alaska relating to membership of the legislature. HEARD AND HELD *HB 345: "An Act relating to the preservation of public facilities and to appropriations for annual maintenance and repair, periodic renewal and replacement, and construction of public facilities." HEARD AND HELD OVER WITNESS REGISTER REPRESENTATIVE BRIAN PORTER Alaska State Legislature State Capitol Building, Room 122 Juneau, AK 99801-1182 Phone: 465-4930 Position Statement: Prime sponsor of SCHB 277 TERRY CRAMER, Legislative Legal Counsel Division of Legal Services Legislative Affairs Agency 130 Seward Street, Room 407 Juneau, AK 99801-2105 Phone: 465-2450 Position Statement: Commented on CSHB 277 LARRY LABOLLE Aide to Representative Richard Foster Alaska State Legislature State Capitol Building, Room 420 Juneau, AK 99801-1182 Phone: 465-3789 Position Statement: Commented on HJR 22 REPRESENTATIVE JEANNETTE JAMES Alaska State Legislature State Capitol Building, Room 501 Juneau, AK 99801-2105 Phone: 465-3743 Position Statement: Prime sponsor of HB 345 JERRY NEWBERT, Assistant Vice-President Facilities, University of Alaska Statewide System Office 910 Yukon Drive Fairbanks, AK 99775-2388 Position Statement: Testified in support of HB 345 ROD WILSON, Architect Department of Transportation & Public Facilities 3132 Channel Drive Juneau AK 99801 Phone: 465-6962 Position Statement: Commented on HB 345 PREVIOUS ACTION BILL: HB 277 SHORT TITLE: INDEMNIFICATION OF PUBLIC EMPLOYEES SPONSOR(S): REPRESENTATIVE(S) PORTER JRN-DATE JRN-PG ACTION 04/07/93 1070 (H) READ THE FIRST TIME/REFERRAL(S) 04/07/93 1070 (H) STATE AFFAIRS, JUDICIARY, FINANCE 01/18/94 (H) STA AT 08:00 AM CAPITOL 102 01/18/94 (H) MINUTE(STA) 01/25/94 (H) STA AT 08:00 AM CAPITOL 102 BILL: HJR 22 SHORT TITLE: LEGISLATURE OF 25 SENATORS, 50 REPS SPONSOR(S): REPRESENTATIVE(S) FOSTER, Davidson JRN-DATE JRN-PG ACTION 02/01/93 197 (H) READ THE FIRST TIME/REFERRAL(S) 02/01/93 197 (H) CRA, STATE AFFAIRS, JUDICIARY, FINANCE 02/05/93 240 (H) COSPONSOR(S): DAVIDSON 04/13/93 (H) CRA AT 01:30 PM CAPITOL 124 04/13/93 (H) MINUTE(CRA) 04/14/93 1198 (H) CRA RPT 3DP 3NR 04/14/93 1198 (H) DP: WILLIAMS, SANDERS, OLBERG 04/14/93 1198 (H) NR: TOOHEY, WILLIS, BUNDE 04/14/93 1198 (H) NR: TOOHEY, WILLIS, BUNDE 04/14/93 1198 (H) -2 FISCAL NOTES (GOV, LAA) 4/14/93 01/25/94 (H) STA AT 08:00 AM CAPITOL 102 BILL: HB 345 SHORT TITLE: PRESERVATION OF PUBLIC FACILITIES SPONSOR(S): REPRESENTATIVE(S) JAMES JRN-DATE JRN-PG ACTION 01/07/94 2018 (H) PREFILE RELEASED 01/10/94 2018 (H) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2018 (H) STATE AFFAIRS, FINANCE 01/25/94 (H) STA AT 08:00 AM CAPITOL 102 ACTION NARRATIVE TAPE 94-5, SIDE A Number 001 CHAIRMAN AL VEZEY called the meeting to order at 8:00 a.m., Tuesday, January 25, 1994. It was noted that this meeting would be on teleconference with Anchorage and Fairbanks. Members present were Representatives Vezey, Kott, Ulmer, B. Davis, G. Davis, Sanders, and Olberg. HB 277 - INDEMNIFICATION OF PUBLIC EMPLOYEES Number 032 REPRESENTATIVE BRIAN PORTER presented CSHB 277. He said the committee substitute addresses a number of concerns put forth by the Department of Law. He reiterated comments of last week regarding SEC. 1A and SEC. B. REPRESENTATIVE PORTER further explained that an employer is not required to provide indemnification if that employer feels that the act was outside the scope of employment or as a result of gross negligence or an intentional act. If this is the allegation of the employer and the employer has been dropped from the suit or never was named in the suit, the remedy of the employee it to bring suit if he or she feels that indemnification is still justified under this act. If the employer is named in the suit and still refuses to indemnify, there is a provision for a cross claim by the employee. If the employer takes advantage of the provision that allows for indemnification to the extent of providing a defense for the employee, but reserves the right to indemnify damages until the end of the proceeding, which may or may not establish that there was outside of the scope of gross negligence, they may do so. The employees remedy then is, within one year, to file suit for indemnification under this act. He went on to say the suggestion by the department that an employee must notify his or her employer within ten days can be waived for good cause and cited an example. REPRESENTATIVE PORTER continued with an overview of letters of support, starting with the letter from Kent. E. Swisher from the Alaska Municipal League. In addition, he noted the updated memo from the Anchorage Telephone Utility, a letter of endorsement by Michael Grimes, statewide President of Alaska Peace Officers Association, and a letter from the Alaska Association Chiefs of Police. REPRESENTATIVE PORTER noted the presence of Terry Cramer from the Division of Legal Services, Legislative Affairs Agency. REPRESENTATIVE VEZEY asked Representative Porter if there were other public entities that have a problem in this area. REPRESENTATIVE PORTER said he has been aware of individual employees, who have expressed concern over the years about being vulnerable. He further noted that municipalities change policy, potentially every four years. REPRESENTATIVE VEZEY asked for clarification regarding punitive damages to the employee. Number 207 REPRESENTATIVE PORTER said that it is not a requirement under this legislation, but it also does not preclude it. He further stated that a labor contract or any other policy may provide for punitive damages, but it is not mandated by this bill. Number 261 REPRESENTATIVE VEZEY referenced the Fairbanks ordinance outlining indemnification. He noted the importance of local self-determination, and voiced a concern about usurping that. He asked if there was a provision to allow a municipality's ordinance to supercede state law in cases of indemnification. Number 317 REPRESENTATIVE PORTER responded by saying that as a sponsor of the bill, he did not have a problem with language that would defer to the codification of public employee indemnification that exceeds what is outlined in HB 277. REPRESENTATIVE PORTER asked Representative Gary Davis, as a former municipal official, if he had a problem with HB 277. REPRESENTATIVE G. DAVIS said he supported the bill. Number 346 REPRESENTATIVE VEZEY asked Representative Ulmer if she had anything to share regarding this legislation, as a former municipal official. REPRESENTATIVE FRAN ULMER responded by saying she supports the policy goal of statewide uniformity that the bill puts forth. She asked for clarification in cases of age, race or specifically, sexual harassment cases. Number 361 REPRESENTATIVE PORTER reiterated the provisions in the bill regarding gross negligence, the options of the employer and the employee, in a situation where they do not agree on indemnification. Number 368 REPRESENTATIVE ULMER asked Terry Cramer if she had any comments or insights on how the employer would proceed, internally, whether or not they should provide counsel. Number 407 TERRY CRAMER, DIVISION OF LEGAL SERVICES, said that it would be up to the individual public employer to follow whatever procedures they have established for those kinds of decisions. Number 412 REPRESENTATIVE G. DAVIS echoed comments made by Terry Cramer: the individual employer usually has a sexual harassment policy in place which outlines procedures to deal with decisions regarding sexual harassment. He pointed out that though wording in the bill defining "scope of employment" and "good faith" can be subject to interpretation, in sexual harassment cases, there is most often a separate policy specific to that issue. Number 432 REPRESENTATIVE PORTER followed up by saying that "scope of employment" and "good faith" have generally accepted definitions. Number 443 REPRESENTATIVE ULMER moved to adopt CSHB 277 Number 450 CHAIRMAN VEZEY called for a roll call vote. CSHB was MOVED out of committee with a unanimous vote. HJR 22 - LEGISLATURE OF 25 SENATORS, 50 REPS Number 472 LARRY LABOLLE, AIDE TO REPRESENTATIVE RICHARD FOSTER, spoke on HJR 22. He said that the resolution was primarily introduced to create awareness of the potential for increasing the size of the legislature to improve representation. He went on to say that with the current redistricting, the rural districts have become impossibly large. MR. LABOLLE stated that this issue has come up before in the state of Alaska. There have been, since statehood, two resolutions to suggest that the size of the legislature should be increased. He stated, when Representative Foster was preparing this legislation, it was decided that 60 House members and 30 Senate members would be appropriate. He further discussed the problems of Representative Foster's district. The Yupik contingent feel they are not fairly represented. MR. LABOLLE said that Representative Foster did not necessarily intend for this resolution to make it through this legislative session, but wanted to create awareness. He also stated the advantages of passing this bill would be that it would be less costly to run for office. Presently the high cost of travel while campaigning precludes many people from being effective candidates, and as such, there is a certain contingent of the state that is disenfranchised from running for the legislature. MR. LABOLLE said in closing he felt the fiscal notes were unrealistic. He said that a 25 percent increase in the size of the legislature should not double the cost of the legislature. Assuming that there would be a larger pool to draw from to fill the same committees, it would not necessarily mean the committee size had to increase. He further stated that there would be some increase in staff, but with fewer committee assignments the staff could be distributed among the legislators. REPRESENTATIVE PETE KOTT asked if there were any statistics or numbers that would indicate the largest and smallest states based on population and the number of legislators in those states. Number 536 REPRESENTATIVE VEZEY responded to Representative Kott's question by pointing out that the information was summarized in the Blue Book. Number 540 REPRESENTATIVE HARLEY OLBERG said that population is not as much a concern as geography. Number 552 REPRESENTATIVE VEZEY commented on the fiscal note. Number 557 REPRESENTATIVE ULMER made a motion to pass HJR 22 CHAIRMEN VEZEY called for a roll call vote. Representatives Vezey, Ulmer, B. Davis, G. Davis, Sanders and Olberg voted YES. Representative Kott voted NO. HJR 22 PASSED out of Committee with individual recommendations. HB 345 - PRESERVATION OF PUBLIC FACILITIES Number 584 REPRESENTATIVE JEANNETTE JAMES, prime sponsor of HB 345, read from the sponsor statement to the committee (attachment on file). She stated the intent of this bill is to put a priority on maintenance by putting a line item in the budget, so that it is identified as the formula that is required to maintain the buildings in order to protect the state's capital assets. Number 637 JERRY NEWBERT, UNIVERSITY ARCHITECT AND ASSISTANT VICE PRESIDENT FOR FACILITIES in the Statewide System Office of the University of Alaska, spoke in support of HB 345. He informed the committee of the maintenance needed at the University and said that more operating funds were needed. In addition, he said that the University has a sizable backlog of deferred maintenance, which is the result of underfunding the operating budget categories. He said that projects are often underfunded. MR. NEWBERT went on to say that the University is not predicting to fund any new positions as a result of this bill, because they would be contracting with the public sector. Number 689 REPRESENTATIVE VEZEY asked if we a trying to force the legislature to appropriate money, when in the past there has been an absence of commitment to fund maintenance of the physical plant in the state of Alaska. TAPE 94-5, SIDE B Number 001 MR. NEWBERT responded to Representative Vezey by saying that this bill points the emphasis in the right direction. The correct emphasis should be on maintenance of what we have and not in the expansion mode. Mr. Newbert introduced KATHLEEN SHEDLER, director of the University of Alaska Fairbanks Office of Planning and Project Services. He added that her department has procurement authority to do the planning and construction for projects at the UAF. Number 043 REPRESENTATIVE DAVIS asked for questions from the committee. Number 049 REPRESENTATIVE BETTYE DAVIS asked if the Department of Transportation was going to testify. Number 060 REPRESENTATIVE KOTT referenced page 2, line 16..." the legislature must appropriate the necessary funds for new construction or for renovation or remodeling of public facilities." He said this was vague and asked if this was referencing the requirements established by Department of Transportation, based on their visits to these public facilities on an annual basis. Number 090 REPRESENTATIVE JAMES responded, the funding would be based on a formula the department has for maintenance of buildings based on type, age and cost of the building. The formula should provide a projection of how much is needed for the facilities, and it is the intention of this legislation to fully fund before building new facilities, and that when new legislation is on the table the same formula should be applied. She added that it should be understood that formula monies for the cost of maintaining a new facility will be coming from the general operating funds in future years to cover maintenance of that building. Number 109 REPRESENTATIVE KOTT commented and questioned the sponsor if this legislation would commit future legislatures to this formula. REPRESENTATIVE JAMES responded in the affirmative. Number 120 REPRESENTATIVE JAMES further pointed out there are other options if the state needs a capitol building. She went on to say that if the state does not want to commit to the funding of the operating and maintenance cost of a facility, there is always the option of leasing a building. REPRESENTATIVE VEZEY asked for questions. Being none he introduced ROD WILSON, ARCHITECT, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, in the headquarters office in Juneau. ROD WILSON discussed the perspectives of the Department of Transportation. He mentioned attending a committee meeting of the Alaska State Facility Administrators. He said this organization of which he is a member, did not know how to write a budget in order to get the adequate funding for operating, renewal and replacement. As a result, they received inadequate funding. He went on to say that the lack of funding forced them to take funds from the maintenance end of the budget in order to keep a facility operational. MR. WILSON said another problem area was that typically the money is allocated into department budgets. When this happens, often the funds are again taken from the maintenance funds for program operations. MR. WILSON reiterated the importance of requesting adequate funding for facilities by incorporating long-term maintenance costs in the request. Number 200 MR. WILSON said that the Department of Transportation and Public Facilities supports HB 345 for the most part. He suggested the Department of Transportation be given more authority over the disbursement of funds outlined within HB 345, so that the funds can be redirected more appropriately toward facility request as opposed to the operational request. The department further requested the renewal and replacement funds segment be put into a capital expenditure as opposed to an operational expenditure, so they have the ability to carry funds over. In conclusion, MR. WILSON voiced a concern of the department regarding the provision in the bill that mandates the completion of repairs on current facilities before building any new facilities. He went on to say that the responsibility and the final decision is at the legislative level. Number 270 REPRESENTATIVE VEZEY questioned the productiveness and substantive ability of HB 345. Number 286 MR. WILSON said it would be productive from the standpoint of providing direction as to the intention of how the money is spent, and providing information to the legislature about how far the state is falling behind on the deferred maintenance curve. He pointed out at present, the state is approximately over three million dollars in arrears in deferred maintenance. Number 305 REPRESENTATIVE VEZEY asked if the bill addresses the rural schools and village safe water projects, many of which have not been constructed; many of which have and are no longer functioning. MR. WILSON said he could not comment on the public schools, but went on to say the fiscal note and position paper does not address public schools or those other facilities. MR. WILSON said the backlog that the department is talking about is strictly state-owned, state-operated facilities. Number 320 CHAIRMAN VEZEY stated that the figure in the fiscal note was only about half or less of total cost. Number 321 MR. WILSON agreed. He said he did not know what the Department of Education turned in for a fiscal note. Number 322 CHAIRMAN VEZEY asked Representative James if there was a fiscal note from the Department of Education. Number 323 REPRESENTATIVE JAMES said no. She went on to comment on designating funds saying that it is the intent of the formula funding to give the legislature tools to make a decision and to give the legislature, the people who work for the state of Alaska, and the general public the information that is required to fund the maintenance of capital facilities. Number 348 REPRESENTATIVE KOTT asked how many public facilities and buildings are being addressed. MR. WILSON said there were approximately fifteen hundred to seventeen hundred. Number 355 REPRESENTATIVE KOTT asked if he based that on his testimony from a previous meeting of 1.5 percent? Number 357 MR. WILSON pointed out the legislature had appropriated some funds in 1991 for maintenance and operations of facilities. REPRESENTATIVE JAMES said the problem she saw with the fiscal note was that in fiscal 1995, there is a sixty one million dollar request, but also that sixty one million dollars is going to show up in the budget request, although it will be a lesser amount because it is not fully funded in the budget, thereby, double reporting the money. She went on to say that the provision of a formula funding outlined in HB 345 would clarify the allocation of funds. Number 411 REPRESENTATIVE G. DAVIS asked if there was a cost benefit ratio; leasing over owning. Number 425 MR. WILSON speculated that it was an equal amount of leased space to owned space. DUGAN PETTY from General Services Division, Department of Administration, agreed with Mr. Wilson's comments. Number 435 REPRESENTATIVE KOTT referenced page 2 line 21 "... The department shall from time to time, examine all existing public buildings...." and asked Mr. Wilson to describe what "time to time" means. Number 441 MR. WILSON said the Department of Transportation has very few facility planners and usually see those buildings approximately once every ten years. The last comprehensive update and analysis of public facilities was carried out in the late 1970's. He went on to say that it was approximately a five million dollar capital project just to gather that information. The department has recently gone out and inventoried about 550 state-owned and leased facilities with regard to ADA compliance. This particular task has taken about two years to assemble and probably three hundred thousand to five hundred thousand dollars of employee's time and expense into that project. Number 458 CHAIRMAN VEZEY asked if there were any additional questions or comments. He asked the committee to review the packet on the bill and rescheduled HB 345 to be heard in two weeks. Number 485 CHAIRMAN VEZEY adjourned at 9:18 a.m.