02/17/1998 08:12 AM House STA
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
February 17, 1998
8:12 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ivan Ivan, Vice Chairman
Representative Ethan Berkowitz
Representative Kim Elton
Representative Mark Hodgins
Representative Al Vezey
MEMBERS ABSENT
Representative Fred Dyson
COMMITTEE CALENDAR
HOUSE BILL 312
"An Act relating to the Public Facilities Financing Corporation;
authorizing an advisory vote on whether the legislature should
appropriate $1,500,000,000 from the constitutional budget reserve
fund to capitalize the build Alaska fund; and providing for an
effective date."
- MOVED CSHB 312(STA) OUT OF COMMITTEE
CS FOR SENATE BILL 105(FIN) AM
"An Act relating to legislative and executive branch ethics;
relating to campaign finances for candidates for state office;
relating to the conduct and regulation of lobbyists with respect to
public officials; relating to the filing of disclosures by certain
state employees and officials; making a conforming amendment to the
definition of 'public official' for employment security statutes;
and providing for an effective date."
- HEARD AND HELD
* HOUSE BILL 313
"An Act relating to preventive maintenance programs required for
certain state grants; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
* HOUSE BILL 315
"An Act relating to operating appropriations for annual maintenance
and repair and periodic renewal and replacement of public buildings
and facilities; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 312
SHORT TITLE: PUBLIC FACILITIES FINANCING CORP
SPONSOR(S): RULES BY REQUEST OF DMT
Jrn-Date Jrn-Page Action
01/12/98 2026 (H) READ THE FIRST TIME - REFERRAL(S)
01/12/98 2026 (H) STATE AFFAIRS, FINANCE
02/05/98 (H) STA AT 8:00 AM CAPITOL 102
02/05/98 (H) MINUTE(STA)
02/07/98 (H) STA AT 10:00 AM CAPITOL 102
02/07/98 (H) MINUTE(STA)
02/17/98 (H) STA AT 8:00 AM CAPITOL 102
BILL: SB 105
SHORT TITLE: ETHICS/LOBBYING/CAMPAIGN FINANCE
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE ETHICS COMMITTEE
Jrn-Date Jrn-Page Action
02/25/97 494 (S) READ THE FIRST TIME - REFERRAL(S)
02/25/97 494 (S) STATE AFFAIRS, FINANCE
03/11/97 (S) STA AT 3:30 PM BELTZ ROOM 211
03/11/97 (S) MINUTE(STA)
03/13/97 (S) STA AT 3:30 PM BELTZ ROOM 211
03/13/97 (S) MINUTE(STA)
03/18/97 (S) MINUTE(STA)
03/25/97 (S) STA AT 3:30 PM BELTZ ROOM 211
03/25/97 (S) MINUTE(STA)
03/26/97 873 (S) STA RPT CS 3DP NEW TITLE
03/26/97 873 (S) DP: GREEN, MILLER, WARD
03/26/97 873 (S) FISCAL NOTE TO SB (ADM)
03/26/97 873 (S) ZERO FISCAL NOTE TO SB (LAA)
03/26/97 873 (S) FISCAL NOTE TO CS (ADM)
04/10/97 (S) FIN AT 5:00 PM SENATE FINANCE 532
04/10/97 (S) MINUTE(FIN)
04/10/97 (S) MINUTE(FIN)
04/15/97 (S) FIN AT 8:00 AM SENATE FINANCE 532
04/15/97 (S) MINUTE(FIN)
04/16/97 (S) FIN AT 8:00 AM SENATE FINANCE 532
04/16/97 (S) MINUTE(FIN)
04/16/97 (S) MINUTE(FIN)
04/16/97 1163 (S) FIN RPT CS 2DP 5NR NEW TITLE
04/16/97 1163 (S) DP: PEARCE; DP IF AM: PHILLIPS
04/16/97 1163 (S) NR: SHARP, PARNELL, ADAMS, TORGERSON,
04/16/97 1163 (S) DONLEY
04/16/97 1163 (S) PREVIOUS ZERO FN APPLIES (LAA)
04/16/97 1163 (S) ZERO FNS TO CS (LABOR, LAW)
04/16/97 1163 (S) PREVIOUS ZERO FN APPLIES (LAA)
04/18/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
04/18/97 (S) MINUTE(RLS)
04/18/97 1276 (S) RULES TO CALENDAR & 1NR 4/18/97
04/18/97 1279 (S) READ THE SECOND TIME
04/18/97 1279 (S) FIN CS ADOPTED UNAN CONSENT
04/18/97 1280 (S) AM NO 1 OFFERED AND WITHDRAWN
04/18/97 1281 (S) AM NO 2 FAILED Y4 N13 E3
04/18/97 1282 (S) AM NO 3 FAILED Y4 N13 E3
04/18/97 1283 (S) AMENDMENTS 4, 5 NOT OFFERED
04/18/97 1283 (S) AM NO 6 ADOPTED Y12 N5 E3
04/18/97 1285 (S) AM NO 7 FAILED Y7 N10 E3
04/18/97 1286 (S) AM NO 8 FAILED Y5 N12 E3
04/18/97 1287 (S) AM NO 9 ADOPTED Y17 N- E3
04/18/97 1291 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/18/97 1291 (S) READ THE THIRD TIME CSSB 105(FIN) AM
04/18/97 1292 (S) PASSED Y15 N2 E3
04/18/97 1292 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
04/18/97 1292 (S) LINCOLN NOTICE OF RECONSIDERATION
04/21/97 1334 (S) RECON TAKEN UP - IN THIRD READING
04/21/97 1335 (S) RETURN TO SECOND FOR AM 10 UNAN
CONSENT
04/21/97 1335 (S) AM NO 10 ADOPTED Y14 N5 E1
04/21/97 1336 (S) AUTOMATICALLY IN THIRD READING
04/21/97 1337 (S) PASSED ON RECONSIDERATION Y17 N2 E1
04/21/97 1337 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
04/21/97 1370 (S) TRANSMITTED TO (H)
04/22/97 1232 (H) READ THE FIRST TIME - REFERRAL(S)
04/22/97 1233 (H) STATE AFFAIRS, FINANCE
02/05/98 (H) STA AT 8:00 AM CAPITOL 102
02/05/98 (H) MINUTE(STA)
02/12/98 (H) STA AT 8:00 AM CAPITOL 102
02/17/98 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
DENNIS DEWITT, Legislative Assistant
to Representative Eldon Mulder
Alaska State Legislature
Capitol Building, Room 501
Juneau, Alaska 99801
Telephone: (907) 465-2647
POSITION STATEMENT: Testified on behalf of Representative Multer,
sponsor of HB 312.
MICHAEL MORGAN, Manager
Facilities Section
Department of Education
801 West 10 Street, Suite 200
Juneau, Alaska 99801
Telephone: (907) 465-2647
POSITION STATEMENT: Testified on behalf of the Department of
Education on HB 312.
JOE DONAHUE, Member of the Legislative
Ethics Committee Office
P.O. Box 1736
Kenai, Alaska 99611
Telephone: (907) 283-8051
POSITION STATEMENT: Available to answer questions on SB 105.
SUZIE BARNETT, Professional Assistant
Legislative Ethics Committee
P.O. Box 101468
Anchorage, Alaska 99510
Telephone: (907) 258-8172
POSITION STATEMENT: Available to answer questions on SB 105.
BEN BROWN, Legislative Administrative
Assistant to Senator Tim Kelly
Alaska State Legislature
Capitol Building, Room 101
Juneau, Alaska 99801
Telephone: (907) 465-4823
POSITION STATEMENT: Testified on behalf of Senator Kelly,
sponsor of SB 105.
ACTION NARRATIVE
TAPE 98-18, SIDE A
Number 0020
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:12 a.m. Members present at the
call to order were Representatives James, Elton, Hodgins and Vezey.
Representative Ivan and Berkowitz arrived at 8:11 a.m. and 8:15
a.m. respectively.
HB 312 - PUBLIC FACILITIES FINANCING CORP
Number 0050
CHAIR JAMES announced the first order of business is HB 312, "An
Act relating to the Public Facilities Financing Corporation;
authorizing an advisory vote on whether the legislature should
appropriate $1,500,000,000 from the constitutional budget reserve
fund to capitalize the build Alaska fund; and providing for an
effective date," sponsored by the Deferred Maintenance Task Force.
DENNIS DEWITT, Legislative Assistant to Representative Eldon
Mulder, Alaska State Legislature came forward to testify. He said
the changes in proposed committee substitute LS1243\L, Cook,
2/13/98 (page 4, lines 8, 9, and 15), allow the supreme court to
(indisc. - paper shuffling) there is a maintenance management plan
in place for the court and board of regents to certify that the
university has a maintenance plan in place. Line 15 allows again
the court and the board of regents to certify for their facilities
that the projects will e designed to the energy performance
standards.
(2) the commissioner of administration, or the supreme court
for a court facility, or the Board of Regents for a University
of Alaska facility, has certified that a computerized
maintenance management plan, cardex system, or formal
systematic means of tracking the timing and costs associated
with planned and completed maintenance activities, including
scheduled preventive maintenance, is in place for the
facility; and
(3) the commissioner of transportation and public facilities,
or the supreme court for a court facility, or the Board of
Regents for a University of Alaska facility, has determined
that a project or element of a project will be designed in
accordance with the energy performance standards adopted under
AS 44.42.020(a).
MR. DEWITT explained line 10 expands the maintenance plans that
will be acceptable to a cardex system or a formal systematic means
of tracking the timing and costs associated with planned and
completed maintenance activities, this was at the request of the
Department of Education and the Department of Transportation and
Public Facilities (DOT/PF). The computerized program was one
option, but the other two would also accomplish the goal, that
there is an organized maintenance plan. He said what the task
force wanted to get away from being notes on a board, and most of
it in the head of one or two people who sometimes get things done
or don't get things done.
MR. DEWITT said line 16 deals with energy standards, DOT/PF
suggested using "project or element of a project will be designed
in accordance with the energy performance standards adopted under
AS 44.42.020(a)." He indicated it gets to the point and is clearly
understood.
MR. DEWITT referred to the next change, page 10, line 29, which
responds to Representative Vezey's concern regarding the timeliness
of the annual report. He believes most of the agencies report on
December 15, his suggestion was they go ahead with October 1 and as
HB 312 moves through the committees it could be made consistent
with the other reports that come in in December.
Sec. 35.45.130. Annual report. Before October 1 of each
year, the corporation shall submit to the governor a
comprehensive report describing operations, income, and
expenditures for the preceding 12-month period. The
corporation shall notify the legislature that the report is
available.
MR. DEWITT said, finally on page 11, line 17, we expanded the
definition of "public facility" to specifically include "airports,"
this again was at the request of DOT/PF.
(3) "public facility" means a building or other structure that
serves a public purpose and is constructed or maintained in
whole or in part with state money, and includes a highway, an
airport, and a facility or vessel of the Alaska marine highway
system.
Number 0399
CHAIR JAMES said if we don't say what the fiscal year is, then it's
the same as the state's, and October 1 is assuming that the fiscal
year will then be July 1 to June 30.
MR. DEWITT replied right, it defaults to July 1 unless something
else is specified.
REPRESENTATIVE AL VEZEY noted that they have not adopted the
proposed committee substitute. He objected to the changes made on
page 4, lines 8 and 9, because he didn't see why they would want to
have three entities doing our deferred maintenance planning. He
indicated he didn't understand why the legislature ever gave the
supreme court the authority to be a facilities manager. He said,
"What we're doing here is creating a situation where three
government agencies are going to come to the legislature and lobby
them for deferred maintenance funding. I think that we are much
wiser to limit to one, it doesn't matter which one, ... but it
should be one agency coming to the legislature with a plan and not
three agencies coming to the legislature completing for plans.
Because I guarantee you each one of these agencies will come before
the legislature with a plan and take up all of the available
money."
Number 0527
CHAIR JAMES said her understanding is that the plan doesn't involve
money, the plan involves a process, and that the decision by the
Deferred Maintenance Task Force in allocating money, that we would
be planning to spend over a six-year period, is that before we're
willing to allocate any of that money to anyone, we need to
understand that they have a process of ongoing maintenance - that
we don't fix up something and then a few years from now it's broken
down again. The other issue is to have a special line item in the
budget and it will be a planning process for the legislature and
the Department of Administration to determine how that money is
spread out.
MR. DEWITT explained the two sections relate only to actions that
have to be taken prior to the corporation allocating dollars for
the projects. What this requires these entities to do is to
certify to the corporation that they have a maintenance program in
place and that they have designed their projects to energy
efficient standards prior to the release of dollars.
MR. DEWITT said the program for identifying projects is a separate
issue and it is held by the legislature. This does not affect
that. He pointed out, constitutionally, as he understands it, the
court is a separate branch of government, owns it's own facilities,
and that is the reason they separated the court out. He also
believes there is somewhat of a constitutional issue about the
ownership of the university properties. He concluded these two
entities plan separately from DOT/PF in how we plan our buildings
and how they build their buildings. To have DOT/PF, or the
Department of Administration, sign off on those simply enters
another level of bureaucracy into the planning and execution
process of building. It was not that they deal differently with
the legislature. It was who would certify to the Public Facilities
Financing Corporation that these items had occurred.
REPRESENTATIVE VEZEY indicated Mr. DeWitt confirmed what he said
earlier which is we are going to create three planning entities.
He said, "I can assure you that the supreme court does not have at
this time a confident professional facilities planning of
department, or resources. If we put this burden on them, they will
come up with that (indisc.) maybe through an RSA (reimbursable
services agreement) or something, but they will still come up with
it. The Department of Administration is going to have to have one
and we're saying that the university, or perhaps for constitutional
reason is or is not going to have one and we can question why we
have a Department of Public Facilities (DOT/PF) and a university
department of planning and projects." He still believes it would
behoove the legislature to set up one professional level of
reporting and making recommendations.
CHAIR JAMES stressed it isn't that we are going to be having that
we the legislature whose going to be making these decisions, are
going to be depending upon their plan as much as it is that we want
them to be sure that they have. She noted we're asking all the
school districts, and anyone in the state that gets any money for
deferred maintenance to prove to the legislature that they have a
plan of ongoing maintenance so they'll never get behind again.
They have to do that out of their regular budget, we don't give
them extra money for doing their on-going maintenance, we are only
giving them extra money for catching up. What they need to show to
us, before they even get the catching up money, is to show us that
they are going to on-go, keep their maintenance on-going with the
existing funds that they have, that's the challenge.
Number 0847
REPRESENTATIVE VEZEY said if they are going to have some continuity
in this planning, some standard, that it does need to come back to
a central authority.
CHAIR JAMES stated she tends to agree with him. She said, "The
problem we run into, with the school districts and everything, is
'government from on high' again. ... We've discussed that somewhat
about having a statewide system of ongoing maintenance but that
wasn't an option because we had too many people out there making
independent decisions and not wanting the government to be putting
something on down on (indisc.) high."
REPRESENTATIVE VEZEY, being familiar with the planning process, he
indicated the first thing that is going to happen is that the
legislature is going to be inundated with a bunch of different
formats of how they justify their budget for maintenance and were
going to have to weed through it all. It would be foolish if they
didn't do it with some sort of uniform standard because we'll get
in a situation like we have now where people cut back in their
maintenance and claim they don't need it now because they know that
in five years when the roof starts leaking that we'll fund the
money to fix it.
Number 0944
REPRESENTATIVE VEZEY noted the administration is going to rely on
feedback from all of the facilities' managers across the state, but
the legislature is going to be inundated with different assessments
of how to address maintenance needs. He said not that we have to
be uniform across the state but the ability of people to give bad
information to the legislature is going to be greatly increased.
CHAIR JAMES said it would be nice to have an overall plan, but she
didn't believe that was possible.
Number 0991
MR. DEWITT pointed out both the university and the court system do
have their facility management units. Without these proposed
changes they would then have to report to DOT/PF and the Department
of Administration prior to the Public Facilities Commission
releasing dollars for their projects. They already have the
ability and capacity to do this, the question is do they go through
administration to have administration then sign off that they've
done it, because they're separate units of government. He
indicated the concern with having DOT/PF, at least from
Representative Mulder's perspective, is when you go DOT/PF to have
them do anything it just runs the dollars up outrageously, that was
one of the Task Force's concerns is trying to make sure that it's
not overly expensive and that we're getting the certification that
they have a maintenance program in place and that the projects they
design are consistent with energy efficient standards.
REPRESENTATIVE VEZEY said if your statement is true that DOT/PF is
so inefficient, maybe we should dissolve them and turn it over to
the court system. These agencies all point their fingers and talk
about who is efficient and who's not, and they all have different
problems, but the point is that what you have done is lopped off
the top of the pyramid and stuck the legislature on there. He said
I guarantee you, we're the least competent of all of them.
CHAIR JAMES asked if there were other changes.
MR. DEWITT replied no.
Number 1129
REPRESENTATIVE KIM ELTON referenced line 3, page 4.
and renovation of public facilities or school facilities that
are projects approved under AS 14.11.015(a).
REPRESENTATIVE ELTON suggested an amendment may be necessary saying
"or school facilities that are projects eligible for approval." He
indicated there was discussion and expected the proposed committee
substitute would reflect that change.
MR. DEWITT replied the current language accomplishes what
Representative Elton articulated. The suggestion that was made at
the last meeting was that we allow them to fund projects for
schools whether or not they were eligible. He indicated, "And the
committee did not seem receptive to that particular change." What
Representative Elton is articulating is what was in the bill. We
didn't need to change the draft to accomplish that.
REPRESENTATIVE ELTON reiterated there is no difference between
"approved under" or "eligible for approval."
Number 1196
MICHAEL MORGAN, Manager, Facilities Section, Department of
Education came before the committee. He said there is a small
difference in the bill and the only difference is in timing. If
the committee wanted to make that change, it would allow for a
timing change on when the projects would be eligible for funding.
REPRESENTATIVE BERKOWITZ asked what is a computerized maintenance
management plan and what is a cardex system.
MR. DEWITT responded there are programs that work off of a computer
and you input your entire inventory and the maintenance regiment
and it gives you reports back on the timing of when particular
things need to be done. The cardex system, as he understands it,
works very similarly to that except it's a manual system. The
DOT/PF, in terms of brushing and cleaning culverts have a process
where the folks at the district level, substation level, will put
together their proposal of what needs to be done. It's a formal
system that works up through the chain so that they can keep track
of what needs to be done.
Number 1280
REPRESENTATIVE BERKOWITZ asked if it's fair to say they are formal
systematic means of tracking the timing and costs associated with
planned and completed maintenance activities.
MR. DEWITT replied it would be his understanding.
REPRESENTATIVE BERKOWITZ said this is stylistic, he tends to
believe they should avoid using jargon inside statute. And if they
have a description that adequately covers the functions of the
computerized maintenance management plan and the cardex system they
should use that general description rather than possibly limit or
confuse with the jargon.
CHAIR JAMES responded she understands his concern because neither
is defined. She said she believes the operative word is "for":
"for" formal systematic means of tracking the timing and costs
associated with planned and completed maintenance activities
CHAIR JAMES continued, this is actually the goal. She said, "I'd
personally like to have the computerized maintenance management
(indisc.) plan because it's a thought invoker. Number one, to
understand we're going in the technology age now that most
everyone, who is in business, understands that computers have lots
of advantage, I think it's suggestive. And then the cardex system
is a reaction to that ... 'I can do the same thing on a cardex
system.' I think it's suggestive and because the 'or' is in there
and defines actually what the goal of it is, I feel comfortable
having those in there."
REPRESENTATIVE BERKOWITZ said a computerized maintenance management
plan, or in the disjunctive, computerized maintenance management
plan need not be formal systematic means of tracking time and in
costs. It doesn't have to be that way, it could be just a computer
plan, something on a computer. If you wanted to describe what a
computerized maintenance management plan is, he would suggest they
define it. Otherwise he would go with the general term.
CHAIR JAMES asked for a motion to adopt the proposed committee
substitute.
REPRESENTATIVE MARK HODGINS made the motion to adopt CSHB 312(STA),
Version 1243\L, 2/13/98. Hearing no objection, CSHB 312(STA) was
before the committee.
REPRESENTATIVE HODGINS referred to page 10, line 18:
(c) Money in the build Alaska fund may be used only in
accordance with an appropriation. Money may be appropriated
from the fund
REPRESENTATIVE HODGINS next referred to line 22:
(2) for acquisition, construction, repair, major maintenance,
or renovation of public facilities or school facilities that
are projects approved under AS 14.11.015(a).
REPRESENTATIVE HODGINS asked if this money could be spent for
buying facilities rather than deferred maintenance fixing the
facilities and why would that be in there if that's not the case.
He indicated it sounds like they can actually purchase buildings
instead of deferred maintenance.
MR. DEWITT responded that language is on the advice of the bond
council that the legislature needs to be able to, through the
legislative process, use the build Alaska fund at its discretion.
And it has to do with complying with tax codes in order to make
sure that the bonds remain tax-free. To answer Representative
Hodgins question, he said there is that latitude within that
section.
Number 1474
REPRESENTATIVE BERKOWITZ indicated he had an amendment prepared on
that point because that language also occurs on page 4, line 2:
funds for acquisition, construction, repair, major
maintenance, and renovation of public
REPRESENTATIVE BERKOWITZ said the amendment deletes "acquisition,
construction." And inserts "replacement". (This language is also
found on page 10, line 25).
REPRESENTATIVE HODGINS objected to proposed Amendment 1. He
referred to Mr. DeWitt's comment that it might be possible that
they might have a long-term lease or something and it might be more
preferable for use to purchase as to not. He didn't see a problem
with it as long as the legislature would be the ones that would
make that decision. He mentioned he just wanted to get
clarification on why acquisitions was in there, Representative
Hodgins said he didn't believe it was necessary to remove it.
Number 1568
CHAIR JAMES made it perfectly clear that she is not interested in
purchasing more buildings, she wishes they would sell some of the
ones that they have. Chair James pointed out the problem she has
with this amendment is it refers to replacement as opposed to
acquisition or construction and does not include "new schools."
CHAIR JAMES said it appears the goal of the build Alaska fund is to
have it be a perpetual fund. Once it is set up for the purpose of
doing the deferred maintenance, and also because we were going to
take six years to do the deferred maintenance, we have to admit
that there will be some new construction or replacement
construction that will be coming - maybe having just as much need
as the deferred maintenance during this period of time. Therefore,
we needed to expand the Deferred Maintenance Task Force finance
planning to also slot in any new construction, including new
schools. She mentioned there might be a need for a new school
particularly in the Mat-Su (Matanuska-Susitna Borough), Anchorage
or Fairbanks areas where we have a growing population and growing
needs.
Number 1627
CHAIR JAMES said she does not want to take out the word
"construction," she does not have a problem with inserting the word
"replacement." She indicated she has a problem with taking the
word "acquisition" out because of the need for the tax-exempt
status on all the other things that we have -- to need to have this
be broad. She concluded saying anything that is done with this
money cannot be done without legislative approval.
REPRESENTATIVE HODGINS mentioned he flies in the Bush area often.
For example, there are some Native villages that have airports
located on rivers, a flood could wipe it out, and they might have
to replace it at a higher elevation. He said he also agreed with
Chair James analogy on the schools.
CHAIR JAMES announced she is turning the meeting over to Vice
Chairman Ivan.
Number 1704
REPRESENTATIVE BERKOWITZ said he didn't initially intend to have
"replacement" as part of his amendment. Representative Berkowitz
stressed he wants to delete "acquisition, construction," and would
take a friendly amendment to remove "replacement."
REPRESENTATIVE BERKOWITZ said he believed what they are doing, by
deleting acquisition, construction, is preventing us from acquiring
and constructing a pork barrel. Because if they are putting
together the build Alaska fund, in order to maintain facilities,
and we're expanding its scope so they also can acquire and
construct facilities, then we're going outside the intent of this
fund. He stated, "And as soon as we do that, if we're not putting
the proper parameters to it, it's a pork barrel."
REPRESENTATIVE ELTON said he is not in favor of the friendly
amendment because he thinks it is legitimate to replace an airport
or a school, if a school burns down. He indicated he does not have
a problem with inserting replacement.
Number 1749
REPRESENTATIVE ELTON noted, "I do think that if we're going to take
a discrete fix - I think everybody at the beginning of this process
and everybody at the end of this process acknowledged that one of
the problems that we have is we're not focusing on, not just
deferred maintenance, we're not focusing on ongoing maintenance
that keeps us from having deferred maintenance. And I agree with
the maker of this amendment that what we're encouraging, by using
the words 'acquisition, construction,' is we're encouraging people
to look at the $1.5 billion fund as an opportunity to build new
buildings rather than an opportunity to use this money for what its
original purpose was. I'm absolutely in favor of the amendment and
to go one step further, I'm in favor of the amendment as written
and not deleting the word replacement because I think replacement
is a legitimate function in a deferred maintenance scheme."
REPRESENTATIVE VEZEY asked someone to get him a copy of the IRS
(Internal Revenue Service) regulation that would exclude this type
of a development corporation from being able to take advantage of
IRS regulations if construction and acquisition were not an option.
He pointed out that they are talking about a legitimate public
purpose, and repair and maintenance of public facilities is
certainly a legitimate public purpose.
MR. DEWITT said he wanted to clarify what he meant to say.
REPRESENTATIVE VEZEY said he wasn't accusing Mr. DeWitt of trying
to be an expert on IRS regulations. He asked Mr. DeWitt to go back
to his sources and get a copy of the IRS rules, regulations or case
law that says we'd be in jeopardy of not qualifying under IRS
regulations for a community development corporation if it didn't
include construction acquisition. He stated he doesn't have any
objection to putting it in there. He indicated he just gets tired
of having smoke blown in his face.
Number 1861
MR. DEWITT responded he apologized for having done that. The
question he tried to answer was where did the language come from
and why was it there. He indicated he was trying to answer the
general flexibility, and noted he did state, "Yes, it would allow
acquisition." Mr. DeWitt said he was not under the impression that
deletion of construction or acquisition, in those terms, would
jeopardize the tax status of the corporation with the broad
flexibility. Certainly you could put parameters on how flexible
you want to be. The bond council indicated the more flexible the
better. It's not his understanding that the exclusion of those two
terms would cause particular problems. He said he would run that
by bond council, but his expectation (in the conversations he's had
with them), is that those would not be problems, however, he does
have some strong feelings about the importance of those words and
how it does help the mission of this corporation and the deferred
maintenance program.
REPRESENTATIVE VEZEY acknowledged they recognize, in many cases, it
is cheaper to tear-down and rebuild than it is to bring up to
standard, or just make repairs. Representative Berkowitz comments
that we're opening this up to a pork barrel, which goes without
saying. This is an opportunity to hand out pork. He indicated if
we don't have the option of reconstruction, as opposed to fixing-
up, we'll end up spending more money fixing-up antiquated
facilities than we would replacing them with new.
Number 1944
REPRESENTATIVE BERKOWITZ conveyed what he is concerned about is
that the build Alaska fund is somehow going to be used in lieu of
presenting capital budgets to some degree. He stated he is not as
familiar with the process, since he hasn't been around as long as
anyone else at the table with the exception of Representative
Hodgins. Representative Berkowitz stressed he didn't want the
build Alaska fund taking the place of the capital budget. He said,
"If that's the intent of the build Alaska fund, in any degree, it
seems to me we ought to give it a much more formal review than
we're doing right now."
REPRESENTATIVE HODGINS offered a friendly amendment to the
amendment presented by Representative Berkowitz. Representative
Hodgins' amendment would correct line 4 of his amendment, he has
page 10, line 25, that should be page 10, line 22.
REPRESENTATIVE BERKOWITZ replied that's a different version.
VICE CHAIRMAN IVAN asked Representative Hodgins' if he was offering
that amendment.
REPRESENTATIVE HODGINS responded yes, just to change the apparent
typo [typographical error] from line 25 to line 22.
UNIDENTIFIED SPEAKER objected.
Number 1997
VICE CHAIRMAN IVAN stated he respects the intent and understands
some of the concerns, but believes these will be forwarded to the
corporation for their consideration and the final decision to
allocate funds rests with the legislature.
MR. DEWITT reiterated the purpose of the Public Facilities
Financing Corporation is to make bonding available in a relatively
efficient process so that essentially debt financing can be used by
the state. He said we've selected to propose to use it for those
projects that have been identified by the Deferred Maintenance Task
Force which have been forwarded to the legislature. The
legislature will make consideration of whether or not those
projects are appropriate and the governor will approve it or he
will not.
MR. DEWITT continued, when you remove things like acquisition --
there are a number of rural schools that we visited some of which
will need to be replaced, renovated, remodeled on separate pieces
of ground. If you remove the term acquisition then this
corporation cannot be a party to acquiring the property to move
that school. He stated there has been a great deal of
consideration about whether or not the high school in Juneau ought
to be remodeled or replaced. If ultimately the structural
integrity of that facility indicated that it ought to be replaced,
it would be likely a new piece of ground would be needed. One of
the problems at the high school is that the property is too small
for the facility. He said, "If you remove the term acquisition, I
think you're putting yourself in a box whether you believe this is
a good program where there ought to be a real tight program just
for deferred maintenance and ongoing maintenance, or whether you
believe that the legislature is simply interested in pork. ... Some
think that projects are important."
MR. DEWITT stressed, "The issue of acquisition is not an issue of
whether or not we buy the Bank of America Building, it's an issue
of whether or not we have the ability or we have limited ourselves
to whether or not - for example the Griffin Building in Kodiak,
which under the deferred maintenance Task Force report, the option
was taken to replace that as opposed to spending almost 80 percent
of what it would cost to replace it - to renovate it and then not
have a very good building."
MR. DEWITT concluded, "I don't know at this juncture whether or not
they decided on a new location or not. But if you remove
acquisition from this particular bill, then certainly the decision
is made that it will have to be torn down, replaced on that
particular sight, because you don't have the option for
acquisition."
Number 2197
REPRESENTATIVE BERKOWITZ stated the example of the Bank of America
Building is very instructive. He asked if it would be possible to
acquire the Bank of America Building, or a similar structure, with
the language in this bill, it would be possible...
MR. DEWITT interjected, as we've seen without the language that's
in here.
REPRESENTATIVE BERKOWITZ replied that's right. He confirmed, "But
we could use the funds that are contained here to do something like
purchase that building. My concern is, if we're going to make a
purchase like that, it should be done -- we talked about structural
integrity, I think there's sort of a legislative integrity at stake
here too. I've seen pockets of money shifted around a shell game
and AHFC [Alaska Housing Finance Corporation] pays for things,
AIDEA [Alaska Industrial Development and Export Authority] pays for
things, so we don't want to pay for it out of general funds because
that's not just politically opportune."
REPRESENTATIVE BERKOWITZ asked if we're going to be acquiring
buildings, we should acquire it out of capital projects or other
sources. He identified this as a maintenance fund, it's designed
to maintain, and fenceposts aren't drawn around acquisition or
construction, then he could see a day where we do buy buildings
because it advantages the state. But we buy buildings with a
maintenance fund and at the same time, for sake our
responsibilities in a less political area. He gave the example of
buying a building in downtown Anchorage and not doing the proper
maintenance on a school in Kivalina. Without fenceposts around
this language he is concerned that that's what's going to happen.
Number 2240
MR. DEWITT said he understood what Representative Berkowitz was
saying and described the legislative process. He reiterated the
notion of the Public Facilities Financing Corporation was to give
the legislature as much flexibility in using it as it chose over
time. It's really a policy call, do you want an opportunity in
place that is useful, and the sideboards being placed by the
legislative process. He indicated the future legislature can
change this as well. He said, "But what you've done is limited the
opportunity to do constructively, at least what I understand the
task force and deferred maintenance indicated ought to be done."
VICE CHAIRMAN IVAN announced said he wanted to hear from
Representative Elton before he put the question of the proposed
amendment before the committee.
REPRESENTATIVE ELTON asked about the word "replacement," would
preclude spending that money for design, engineering or land
acquisition.
MR. DEWITT replied, "If acquisition is appropriate, why is
acquisition not appropriate." He indicated he didn't understand
what Representative Elton asking.
Number 2308
REPRESENTATIVE ELTON explained he would like to know what in the
word "replacement" that is going to substitute for acquisition,
construction. What in the word "replacement" would preclude the
build Alaska fund for being used to buy the land and necessary
(indisc. - noise) place. He pointed out what he is trying to do is
he's trying to design the fence, that the maker of the amendment
is, that would preclude a purchase of the Bank of America Building
but would allow land acquisition. He stated he believes land
acquisition is allowed under the word replacement in the same way
that engineering would be allowed, or the cost of design elements
would be allowed.
REPRESENTATIVE HODGINS indicated he could see where replacement
would not be construed as acquisition. He referred the example of
Juneau [Juneau-Douglas] High School, replacement of the high
school, he believes, without acquisition would be on that same
site. You would replace the building. You wouldn't replace the
land. He said, "I think an acquisition has to stay in there, and
the questions that we've brought up I think are all valid..."
REPRESENTATIVE ELTON said he believes replacement does allow the
purchase of the property necessary to build a replacement building.
He indicated he needed someone more familiar with this than members
of the committee to tell them that it doesn't. He thinks this is
an important point and noted this gets right to the heart of
whether they are funding deferred maintenance or whether they're
funding a new acquisition of a new building while they're letting
others rot in the ground.
Number 2375
REPRESENTATIVE HODGINS said, "I would think that replacement would
be exactly that, you would replace an item. You would take
whatever was there, you would remove it, and you would replace it
exactly. I think we need to vote on this amendment and move one."
Number 2390
VICE CHAIRMAN IVAN asked for a motion to move the amendment. He
emphasized they are trying to arrive at a point to give the
corporation as much flexibility to look at the situation as it is.
If acquisition is necessary, they'll make that determination. If
replacement needs to be done, he's sure they'll look at that
situation and make that determination. He said, "We do the final
funding as was..."
TAPE 98-18, SIDE B
Number 0001
VICE CHAIRMAN IVAN asked for a roll call vote (request not on
tape).
REPRESENTATIVE HODGINS asked, prior to a vote will it take a quorum
of the sitting people, or is it a quorum of the entire membership.
VICE CHAIRMAN IVAN replied the sitting members.
Number 0030
A roll call vote was taken. Representatives Berkowitz and Elton
voted for the amendment. Representatives Hodgins, Ivan and Vezey
voted against it. Therefore, the Amendment 1 failed by a vote of
2 to 3.
REPRESENTATIVE BERKOWITZ stated he has other amendments to offer.
VICE CHAIRMAN IVAN asked for an at ease.
Number 0050
CHAIR JAMES asked Representative Berkowitz what amendment did he
want to address first.
Number 0069
REPRESENTATIVE BERKOWITZ offered proposed Amendment H.1 [Amendment
2] which reads:
Page 1, line 7, following "for":
Delete "deferred"
Page 1, line 10, following "financing":
Delete "deferred"
REPRESENTATIVE BERKOWITZ explained he is removing the term
"deferred" in the findings section. He said we don't need to fund
deferred maintenance. We have not funded maintenance. That's why
there's a need - that's why deferred maintenance has occurred.
We're trying to fund maintenance. He clearly said this is going to
be a proactive program and not something that just sits still.
CHAIR JAMES said she understands his point because she's used that
same argument herself. She indicated the word "deferred
maintenance" is a misnomer, what it means is we didn't do any.
However, there is a term of deferred maintenance and that means
that you put it off, you've deferred it, but the need is still
there.
Number 0116
CHAIR JAMES commented that process of the Deferred Maintenance Task
Force, she said we tried to separate out the maintenance that was
ongoing and maintenance that was deferred. The legislator's chore
is to do the catch up. So, there is a catch up and a keep-up and
the focus of this committee was to do the catch up because the
maintenance was deferred. That's why she would support leaving
deferred in the bill.
REPRESENTATIVE VEZEY said Representative Berkowitz is correct.
CHAIR JAMES said she agrees, however, she is disagreeing with his
amendment. Chair James asked if there were objections to Amendment
1 [deleting the word "deferred"].
REPRESENTATIVE HODGINS objected.
Number 0144
CHAIR JAMES asked for a roll call vote. Representatives Berkowitz,
Elton and Vezey voted for the amendment. Representatives Hodgins,
Ivan and James voted against it. Therefore, Amendment 1 failed by
a vote of 3 to 3.
Number 0174
REPRESENTATIVE BERKOWITZ offered proposed Amendment H.2 [Amendment
3]. He clarified what he is trying to do, is put some public
members on the board of directors, as most of the other quasi-
public... He believes the public deserves to be part of the
process, if we just leave it with folks who are part of the
administration or, part of the problem in a way, then we're lacking
the insight necessary from public participation and this opens the
process up. The amendment reads as follows:
Page 2, line 7, following "of" through page 2, line 10:
Delete all material
Insert: "directors consisting of
the commissioner of revenue
the commissioner of transportation and public facilities
the commissioner of education
the executive director of the Alaska Housing Finance
Corporation
the executive director of the Alaska Industrial
Development and Export Authority
two public members appointed by the governor, as follows:
(1) one member who has expertise in energy efficient
building and weatherization; and
(2) one member who is a rural resident of the state and
has experience in building or maintaining public
facilities.
REPRESENTATIVE HODGINS objected.
Number 0212
REPRESENTATIVE ELTON asked why there would be an objection to
including the public as part of the process.
CHAIR JAMES replied, "Because it is a legislative body that is
being created here, and the legislators are going to be making the
decision. You're talking about the directors of this, and this is
to be utilizing our existing directors, and not wanting to have a
fiscal note, there literally seems to me no purpose of having
public members on this board."
REPRESENTATIVE VEZEY said he is going to oppose Amendment 3 because
we're taking a five-member board and expanding it to seven, all of
them are appointed by the governor. He asked what's the point of
making a bigger committee.
REPRESENTATIVE ELTON spoke in favor of the amendment because
anytime you're using $1.5 billion worth of public funds, it's
always good to have members of the public involved. And if there
is another way of doing this to overcome Representative Vezey's
objection about having them all appointed by the governor, If I was
the governor, I would be open to (indisc.).
REPRESENTATIVE HODGINS said he objected to this, not that he
doesn't want to see the public on here, but the process is the
legislature will hold meetings that the public can participate in,
and the public will have that opportunity.
REPRESENTATIVE BERKOWITZ stated the public is already party to the
board of directors in some of the other organizations listed here:
AHFC and AIDA, they have public participation. He asked why are we
drawing a line around the build Alaska fund. He believes this
gives the appearance of creating some sort of sacred cow that's
outside of public touch.
Number 0280
CHAIR JAMES asked for a roll call vote on proposed Amendment 3.
Representatives Berkowitz and Elton voted in favor of the
amendment. Representatives Hodgins, Ivan, Vezey and James voted
against it. Therefore, Amendment 3 failed by a vote of 2 to 4.
Number 0311
REPRESENTATIVE BERKOWITZ offered Amendment H.3 as proposed
Amendment 4 which reads:
Page 2, line 20 through page 2, line 21:
Delete all material
REPRESENTATIVE BERKOWITZ said, "Forrest Brown testified before us
that he did not feel the board of directors needed an executive
director and I don't think we do either. I think it saves the
public money if we don't employ one."
REPRESENTATIVE VEZEY indicated his concern would be that if we
don't address it, it would be unsaid and they could hire any number
of employees they wanted because they would be a corporation under
the laws of the State of Alaska. And hiring people, having
employees, is an authorized function of corporations.
REPRESENTATIVE BERKOWITZ replied we could solve that problem by
saying the corporation may not employ anybody.
REPRESENTATIVE VEZEY added that is a different amendment.
Number 0372
CHAIR JAMES asked for a roll call vote on proposed Amendment 4.
Representatives Berkowitz voted in favor of the amendment.
Representatives Elton, Hodgins, Ivan, Vezey and James voted against
it. Therefore, Amendment 4 failed by a vote of 1 to 5.
Number 0384
REPRESENTATIVE ELTON offered proposed Amendment 5. He referred to
page 2, lines 20 and 21, change paragraph (b) to read:
The corporation may not employ staff.
Delete the second sentence: The executive director is in the
exempt service under AS 39.25.110.
CHAIR JAMES objected. In summary she said if you created a
corporation and you didn't allow the corporation to hire any staff
it would be difficult to manage. We have listed under this the
people who are the board members - who are already being paid for
some other job. You can't have a corporation doing something if
there's nobody to do it, a corporation is the same as a person but
it doesn't have people except in its board of directors. Chair
James stressed it's unrealistic to not have at least one hired
person just in the organization.
REPRESENTATIVE BERKOWITZ reiterated that an expert in the field,
who testified before us, said that they didn't need anybody that
they could handle it with the board of directors. He believes that
this would unnecessarily add cost to the program.
Number 0481
REPRESENTATIVE VEZEY pointed out that the committee rejected his
suggestion that this organizational structure comes to a pyramid
peak, we don't have one person preparing this information and
presenting it to the legislature, we already have people in DOT/PF,
the court system, and the university. This is the defacto staff of
the corporation, they're going to be the ones coming before us.
REPRESENTATIVE VEZEY said if we want the corporation to have an
executive director, it would make sense that that person is on top
of the pyramid and that person being the one coming to us.
Number 0533
CHAIR JAMES asked for a roll call vote on Amendment 5.
Representatives Berkowitz, Elton, Hodgins, and Vezey voted for it.
Representatives James and Ivan voted against it. Therefore,
Amendment 5 passed by a vote of 4 to 2.
Number 0552
REPRESENTATIVE HODGINS made a motion to move CSHB 312(STA) with
individual recommendations and attached fiscal notes. There being
no objection, CSHB 312(STA) moved from the House State Affairs
Standing Committee.
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE
Number 0588
CHAIR JAMES announced the next order of business is CSSB 105(FIN)
AM, "An Act relating to legislative and executive branch ethics;
relating to campaign finances for candidates for state office;
relating to the conduct and regulation of lobbyists with respect to
public officials; relating to the filing of disclosures by certain
state employees and officials; making a conforming amendment to the
definition of 'public official' for employment security statutes;
and providing for an effective date."
Number 0621
REPRESENTATIVE HODGINS said at the last meeting there was a motion
to remove Section 8, page 8.
JOE DONAHUE, Member of the Legislative Ethics Committee Office,
said he is available to answer questions or clarify the committee's
position via teleconference.
SUZIE BARNETT, Professional Assistant to the Legislative Ethics
Committee, said she is also available to answer questions or
clarify the committee's position via teleconference.
Number 0680
REPRESENTATIVE HODGINS said he made the motion to delete Section 8,
at the last State Affairs Committee meeting after lengthy
discussion.
Sec. 8. AS 24.45 is amended by adding a new section to read:
Sec. 24.45.165. Spouses and cohabitant of legislators. (a) A
spouse of or a person cohabiting with a legislator may not
engage in lobbying the executive branch of state government or
the legislature during the legislator's term of office.
(b) In this section,
(1) engage in lobbying" means to act as a lobbyist;
(2) person cohabiting with" means a person who is
cohabiting with another person in a conjugal
relationship that is not a legal marriage.
REPRESENTATIVE ELTON said sometime the perception of conflict is as
disastrous as the conflict itself and that Section 8 is more of a
perceptual section than a reality section. He asked Representative
Hodgins to expand on why Section 8 may not be appropriate. He
believed that allowing spouses, or close associations of
legislators to lobby does raise a public perception problem.
REPRESENTATIVE HODGINS replied the disclosures that we do, we do
have a close relationship disclosure that we would make. As long
as that is disclosed to the public, he didn't have a problem with
removal of Section 8. He said if we didn't have the forms that we
filled out, and they were due yesterday, on close relationship the
he would say, "Yes, Section 8 definitely needs to be in there."
But he thinks the public is safeguarded.
REPRESENTATIVE ELTON stated he agrees with Representative Hodgins
with Subparagraph 1, but he was not sure that the disclosure forms
covers somebody in number 2, which is a person cohabiting with.
Number 0791
REPRESENTATIVE VEZEY said his objection to the proposed amendment
[meant to say Section 8] is that we have a great disparity in the
definition of "lobbyist." He indicated everyone in the legislature
knows that most lobbying done on the legislature is by public
officials, who are by definition exempt from lobbying restrictions.
He said, "If we pass this, this is just another creation of another
chasm between the private sector and the public sector. We're
saying it's okay for a legislator to be married to a public
official who has a very strong vested interest in public policy,
but they can't be married to a private sector person who has a
vested interest in public policy. And I have great difficulty with
that."
CHAIR JAMES asked Representative Vezey what side he was arguing on.
REPRESENTATIVE VEZEY replied the he is opposed to Section 8, and is
in favor of the proposed amendment.
CHAIR JAMES stated what she is frustrated with SB 105 and the issue
of ethics is that, in order to impose what the public or whoever
else determines is ethical or unethical, you have to clamp down so
far that you eliminate any possible perception of ethic violations.
You make it almost unworkable for people to be doing this job. For
example, she said, "Some of the responsibilities that we have,
there are a lot of really good people out there that would be good
legislators and they absolutely refuse to put themselves on the
line for it."
Number 0867
CHAIR JAMES said she believed they are going too far. She said
it's the same thing she says about the "open meetings," which she
is supportive of. But the problem she has with designing the rules
of open meetings is that in order to keep two people from talking
about something they shouldn't be taking about, you make a rule
that says they can't be together without somebody else watching -
to put it really extensively. Chair James believes that's what
they are doing in this particular case.
CHAIR JAMES said she has mixed feelings on this issue because there
is a perception that if you are living with a person, that person
shouldn't be a lobbyist. There is reality to that, but there is
what is called disclosure. She stressed she didn't like this bill,
and quite frankly probably won't vote for it. She explained it
delineates what you can do to eliminate the perception that you're
not doing something right. She believes what they're trying to do
is to make people do impossible things. Chair James noted she
agrees with Representative Vezey's analysis and concluded by
saying, "We shouldn't tell people who they can be married to
either." For that reason, she is in support of the deletion of
Section 8. She mentioned it doesn't fix the bill, but it might
help it a little bit.
REPRESENTATIVE ELTON said, in response to some of Chair James'
comments, there is a significant difference between a public
official on salary testifying on behalf of a public agency. He
believes there is a big difference between that person, if that
person is described as a lobbyist, than there is between a lobbyist
who has a private client with a negotiated lobbying contract that
could amount to a significant amount of dollars and is not a public
agency. There is a distinction between the two.
CHAIR JAMES said she didn't have a problem, if that representative
or that senator, stands up and discloses the conflict they might
have because their lobbyist spouse, or spousal equivalent, is
lobbying for a particular group and make it so the public is aware.
She said the test is, if they don't like it they'll remove him or
her. She it seems to her that the public ought to be in charge.
REPRESENTATIVE VEZEY asked Representative Elton to explain the
difference between a person trying to represent the private sector
before the legislature and a person trying to represent the public
sector.
Number 1048
REPRESENTATIVE ELTON pointed out, one is working for a public
agency on behalf of theoretically all Alaskans. The other would be
working on behalf of some narrower interest groups. He said if we
accept the premise that working in government, you're working on
behalf of all Alaskans that would be the difference.
REPRESENTATIVE BERKOWITZ said, "The size of this net is pretty
peculiar, and if we're trying to limit the impact of lobbying on
legislators why are we limiting it to spouses or spousal
equivalents. It seems to me that if legislators are susceptible to
persuasion it's likely to come from friends or other members of the
family. And the size of this net, I don't think catches everybody.
And I'm not sure you can design a net that catches all kinds of
lobbying." Representative Berkowitz said the size of the net
should be addressed at some point.
CHAIR JAMES responded the net doesn't work.
Number 1125
BEN BROWN, Legislative Administrative Assistant to Senator Tim
Kelly, Alaska State Legislature, came before the committee. He
said Section 8 is a policy call and informed the committee that the
Ethics Committee didn't feel comfortable banning spousal lobbying,
they felt more comfortable in putting a disclosure requirement in.
BEN BROWN responded to Representative Hodgin's assertion that
disclosure requirements in existing law are adequate. He said, "I
don't think they are, the one that we put in for legislative staff,
in Section 23 of the bill requires disclosure of new lobbying
associations within 48 hours."
Sec. 23. AS 24.60.070 is amended by adding a new subsection
to read:
(d) When making a disclosure under (a) of this section
concerning a relationship with a lobbyist to whom the
legislative employee is married or who is the legislative
employee's spousal equivalent, the legislative employee shall
also disclose the name and address of each employer of the
lobbyist and the total monetary value received from the
lobbyist's employer. The legislative employee shall report
changes in the employer of the spouse or spousal equivalent
within 48 hours after the change. In this subsection,
"employer of the lobbyist" means the person from whom the
lobbyist received amounts or things of value for engaging in
lobbying on behalf of the person.
MR. BROWN continued, "During the course of a session, the current
disclosure form that has to be filled out by the 15 of February,
well now that it's in, if your spouse or spousal equivalent went
and picked up 15 new lobbying contracts between now and the end of
session no one would know about that until next February. So
that's why I don't think the current -- it's very good and well to
take out the ban but I think you need to put in a disclosure
requirement similar to what's in 23 [Section 23] to (indisc.)
Similar public policy. It's a policy call."
Number 1173
REPRESENTATIVE HODGINS asked if that disclosure policy was in this
bill.
MR. BROWN replied, "For legislative employee spouses and spousal
equivalents, in Section 23, we made the change when the Senate took
away the right for legislators spouses and spousal equivalents to
lobby. So if you want to take this out, it would probably be
prudent to put in a heightened disclose requirement for the
legislator's spouses and spousal equivalents. In fact, Amendment
K.17, which I distributed to you with a memorandum ... , puts in a
contingency provision for doing that as we discussed last week. So
if this ban were found unconstitutional that would happen. So if
you want to go ahead and cut that one off at knees you can take out
Section 8 and put in a disclosure requirement that is similar."
Mr. Brown believes it will give the information to the public in a
more timely fashion that the current system would.
Number 1228
CHAIR JAMES stressed they cannot deal with the disclosure and the
proposed amendment at the same time. She indicated she agrees with
Mr. Brown that disclosure is the way to go. The proposed amendment
deletes lines 5 through 12, on page 8, (which is the entire
section). Chair James asked for a roll call vote. Representatives
Hodgins, Ivan, Vezey, James and Berkowitz voted for the amendment.
Representative Elton voted against it. Therefore, the amendment
passed by a vote of 5 to 1.
CHAIR JAMES mentioned they have a number of amendments and asked
Mr. Brown to address them.
Number 1357
MR. BROWN referred to the first batch of amendments, they were
accompanied by a memorandum dated February 5. He said the batch
has five amendments. The first being KA.36.
CHAIR JAMES asked for an at ease in order to locate that amendment.
TAPE 98-19, SIDE A
Number 0012
CHAIR JAMES indicated she did not have the February 5 packet. She
asked Mr. Brown to start with KA.11.
MR. BROWN said amendment KA.11 is an attempt to address a problem
and the specificity of the Legislative Ethics Code governing the
use of public resources by legislators for partisan purposes. He
mentioned there was a somewhat well publicized case of a legislator
using his office, staff and state stationary to send out a mailing
that was sent to only members of one political party. He said, "It
was done expose-facto to a political activity so it thanked the
persons that received the letters from participating in the
activity so it wasn't a call to action (in advertising
terminology), but it was in the eyes of the Ethic's Committee a
partisan purpose that he sent the letter out for."
Number 0120
REPRESENTATIVE HODGINS said he wished Mr. Brown would say, when he
discussed that case, that he had received the office allowance.
That he was taking the office allowance to Legislative Audit which
is a lot different from if he'd received that lump sum - then he
could do what he was doing.
MR. BROWN said to clarify, that the legislators receive a six
thousand dollar annual allowance that they can either take as
personal income, and therefore have no restrictions on the use or
expenditure of. Or they can have it accounted for, through
reimbursable receipts a submission process through the Legislative
Affairs Accounting Office. He explained, if they choose the
reimbursable receipts process then there are restrictions on what
the money can be spent on. It has to be related to legislative
purposes.
MR. BROWN said, "At the same time, if he had taken the money as
personal income, he still would not have been able to use the state
laser printer or staff time in the eyes of the committee, if what
he did was wrong, and I'm not trying to make a judgement on that
I'm just saying it was a gray area, the committee came down on the
side of saying, 'This is too partisan for our liking.' And so,
Amendment KA.11 attempts to put in language that governs the use of
public resources for things that are arguably partisan." He read:
A legislator or legislative employee may only use public
funds, facilities, equipment, services or other assets or
resources in a matter that involves partisan politics if the
public purpose of the activity outweighs the partisan
political purpose.
Number 0241
REPRESENTATIVE BERKOWITZ asked what does that mean.
MR. BROWN replied he thinks legislative activity, from time to time
will unavoidably carry a bit of partisan air about it. He
explained that it's simply trying to establish a balancing test
whereby if you look at a specific action, or use of state
resources, and you want to say, "Well, it seems to be a little
partisan because it is trumpeting the party line but at the same
time it trumpets the party line in such a way as to affect a public
policy goal, which is why the person ran for office in the first
place." He reiterated it's an attempt to establish a means of
balancing partisan versus a public purpose. It specifically refers
to the example of mailings to members of only one political party
giving that an assumed political partisan purpose that can be
outweighed.
Number 0320
REPRESENTATIVE BERKOWITZ said he understands what Mr. Brown is
trying to do, but there's just no way that you can write letters to
one party and have that not be a partisan activity. He stressed
it's just not feasible, it is clearly part of electioneering, it's
clearly, in his mind, outside the bounds of what's allowed.
REPRESENTATIVE BERKOWITZ said, "When you talked about that instance
as being a gray area, there was nothing gray about it in my mind,
it was black and white and that was in the black, it was wrong. To
sit here after the fact and try to excuse that kind of behavior,
and then trying to make an exception for it with this amendment, I
think it sends the wrong signal to everyone out there. The signal
your sending is that, if a legislator sends letters to members of
his own party alone, that somehow that can be acceptable with state
funds, that's just not possible in my mind. That's clearly
partisan, it's clearly outside the bounds of what we should be
ethically allowed to do."
Number 0411
MR. BROWN said this amendment is to clarify what was apparently not
as clear as it should have been. He indicated he drafted this in
conjunction with the drafter whose worked on most of the
legislative ethics bill, and in conjunction with the legislative
ethics committee staff. Mr. Brown indicated they did not react to
it with as much destain, or perhaps contempt. He suggested, if
there was more clearer or effective language to propose as a
substitute, by all means please.
REPRESENTATIVE BERKOWITZ asked what is the inspiration for this
amendment.
MR. BROWN replied he believes it is to prevent future
misunderstandings of the code when it comes to using public
resources of partisan purposes.
REPRESENTATIVE BERKOWITZ asked who concocted the idea behind this
amendment.
Number 0551
MR. BROWN said, "I don't know that there was the concoction of an
idea in the process of its being drafted, I was aware from having
watched the legislative ethics process over the course of the last
few years of the problem, and the committee was aware of several
desires on the part of other legislators to address the problem.
And frankly, I did come up with this idea which was put into this
language by the drafter and if it's entirely inadequate, that's not
a problem. But, at the same time I think it's hard to say that
there's no language that could go into the statute that would make
things clearer. If you think that anything that goes to members of
one political party is unrelentingly partisan, they by merely
removing that last sentence of this amendment, we affect the policy
(indisc.) that you seem to espouse, I believe. Perhaps amending
the amendment would solve your problem."
CHAIR JAMES indicated she agrees with Representative Berkowitz.
Number 0624
REPRESENTATIVE HODGINS stated this would cover mailings,
telephones, faxes, any facilities the state has. He asked, "So if
I call somebody, and it turns out to be a Republican, then I need
to get on the phone and call a democratic or else I'm in
violation."
MR. BROWN replied the only specific siting is a group mailing. The
ban on the use of resources applies to all state resources,
however, a phone - if you called 15 Republicans in the course of
one day and didn't call any Democrats, and you called each of the
15 Republicans (and it was a long-distance call), and you called
them all to ask them to go to a meeting, I think that would be the
sort activity this amendment sought to ban.
CHAIR JAMES asked for order. She then asked Mr. Brown if it would
be simpler to say, "That legislators cannot do a mass mailing or
group mailing that is political in nature because it is designed to
go to one political party with using state resources." Chair James
indicated it was questionable in her mind what they can and can't
do with their campaign funds because they might not have any,
because they can't keep it. They have tightened the rope so
tightly, that it's going to make it almost impossible for people to
do their jobs without worrying every step they take or that they
are doing something wrong. She concluded prompt disclosure of
these issues be the issue and let the public decide whether or not
that's right or wrong.
Number 0810
CHAIR JAMES asked if it would be better to deny a partisan mailing.
MR. BROWN responded that it is possible to use unused campaign
assets for legislative mailings in the course of ones holding
office. He said they are called "legislative office accounts" and
explained they are going to change the name as not to confuse them
with the Legislative Affairs Agency's administered office account
(which is in another proposed amendment they have).
MR. BROWN reiterated it is possible to do that, and that is
disclosed through Alaska Public Offices Commission (APOC), the
public office expense term accounts (which he is seeking to have
them called), those are subject to annual disclosure to APOC. Mr.
Brown explained, "So if you spent that money on a mailing to
members of one party it would be all right. The problem comes in -
are you going to do that yourself at home, with campaign
volunteers, or are you going to have your staff do it on your state
laser printer."
Number 0865
CHAIR JAMES said of course you're not going to have your staff do
it. The fact that you're not going to mail it from the
legislature, you're going to mail it from home using a campaign
account that you would be using, not your personal account. She
stated they need to make it specifically clear what you can and
can't do, she also thinks it is too wordy.
Number 0923
SUZIE BARNETT, Legislative Ethics Committee, said if they were to
separate out production and mailing for partisan purposes, she
could see many members of the committee feeling very comfortable
with prohibiting partisan production and mailings. She indicated
there could easily be a public purpose involved with a partisan
activity, for example she is often asked, "Is it okay if I go speak
to the Young Republicans or Young Democrats, I've been asked to
speak on my new health care plan." Any number of topics that are
totally related to a partisan activity, and there are many times
when public purpose outweighs the partisan portion of the activity.
Ms. Barnett concluded, "So, I'm not giving you a committee
perspective on the up or down on mailings, but there are times when
there is a public purpose, I think you're on the right track."
CHAIR JAMES agreed.
Number 1010
REPRESENTATIVE ELTON believes they are making a fairly simple issue
very complicated. He thinks most of them realize, as a result of
past circumstances, what is or isn't allowed. Or at least realize
when they need to ask a question of the Ethics Committee.
Representative Elton said he believes this amendment creates a lot
of fog because it says you can't do it unless you can show
substantial evidence that a public purpose for the mailing exists.
That complicates things, he doesn't believe this amendment is
necessary.
REPRESENTATIVE ELTON asked Mr. Brown who do you present the
substantial evidence to and do you do it previously to the mailing
or after the mailing.
MR. BROWN replied, "You, I think would have the option since it
doesn't specify. I think the actual presentation of substantial
evidence to defend you from a charge that you violated the Ethics
Code, would come in the course of a formal investigation.
Hopefully it wouldn't get that far. You would probably be wise to
go ahead and start presenting your substantial evidence when you
call Suzie [Barnett] up on the phone and say, 'Can I do this, or if
I were thinking about doing this, could I do this.' If it's really
substantial and you really believe it's going to get you off this
hook. I certainly don't see any problem in deleting the last
sentence of the amendment if that is collectively wisdom of the
House State Affairs Committee is that it makes the ban on partisan
activity more affective." Mr. Brown asked Ms. Barnett how the new
subsection (i) would read without the last sentence.
CHAIR JAMES indicated she didn't have a real problem with the
decision that the whether or not is a public purpose or a partisan
purpose. If there is any question the people could call the Ethics
Committee and ask for advice. But this specific one, she thinks it
needs to be written that the production and mailing of partisan
material are prohibited.
Number 1163
MS. BARNETT stated she doesn't have the amendment in front of her
but believes they are on the right track. She suggested they check
in on Mr. Donahue for a committee perspective.
CHAIR JAMES read the following amendment:
A legislator or legislative employee may only use public
funds, facilities, equipment, services, or other assets or
resources in a matter that involves partisan politics if the
public purpose of the activity outweighs the partisan
political purpose. A group mailing, addressed to members of
only one political party is presumed to have a partisan
political purpose. The legislator or legislative employee may
overcome that presumption with substantial evidence that the
public purpose of the mailing outweighs the partisan political
purpose.
MS. BARNETT asked it was her goal to delete that entire subsection.
CHAIR JAMES replied yes. Her suggestion is, to make it perfectly
clear, the producing and mailing of political party are prohibited.
MS. BARNETT said she believes that was what Ethics Committee was
intending in their past decision and it was the House decision that
later came back and said, "Well it looks a little different to us."
Number 1252
MR. DONAHUE explained he was not speaking for the entire Ethics
Committee. He noted the committee originally had no problem, but
now they would because of the House's decision to reverse it. Mr.
Donahue believes there may well be a need for an amendment so that
the [ethics] committee has a clearer idea of the legislature's
intent in regard to the use of state resources for partisan
political purposes.
MR. DONAHUE indicated it still doesn't define what are or aren't
partisan political purposes. He said the second half of that was
intended apparently to say that mailing was one of those kinds of
partisan political purposes for which the amendment was there. He
said there may be other kinds, and there could still be mailings
that somehow weren't bad. The committee would have to take a
careful look because of the decisions they made and the House's
reversal. He concluded there is a need for some clarity and this
is going toward it, but he is not sure it's there.
Number 1324
CHAIR JAMES asked Mr. Brown what he thought about coming back with
better language.
MR. BROWN said he would be glad to.
CHAIR JAMES asked for a motion to either table it or turn it down.
She asked what was the will of the committee.
Number 1369
REPRESENTATIVE BERKOWITZ pointed out that the amendment hasn't been
moved, they can just turn the page.
CHAIR JAMES thanked Representative Berkowitz for pointing that out.
She indicated there was ten more minutes.
MR. BROWN stated Amendment KA.17 is now redundant. Having passed
Representative Hodgins' amendment to delete Section 8 of the bill,
putting in contingency language for the ban on spousal lobbying no
longer makes sense. He let them know he will be preparing an
amendment that puts a disclosure requirement in for legislative
spouses.
Number 1412
MR. BROWN stated the proposed Amendment KA.18 is an attempt to
standardize terminology. The bill as currently written, puts in a
requirement that legislative employees compensated at range 19 or
higher, submit legislative financial disclosure forms on an annual
basis (similar to those currently submitted by legislators and
legislative directors, etcetera). As that expands the disclosure
requirement to include staff, he explained Amendment KA.18 replaces
all those references with "upper level employee" and that is
defined for the purposes of the entire code in AS 24.60: As a
person compensated at range 19 or higher who is required to file
one of these disclosure forms.
Number 1485
REPRESENTATIVE IVAN made a motion to move Amendment KA.18.
CHAIR JAMES asked if there were any comments.
REPRESENTATIVE ELTON asked someone to explain the value of advise
from somebody who is lower than a range 19. He stated he doesn't
understand the distinction. He said for example he looks at the
people in his office and he doesn't determine whether or not he
listens to them based on what their salary range is.
Representative Elton said he thinks that's true of most
legislators.
CHAIR JAMES said that is a good question.
MR. BROWN replied that disclosure requirement is an example of
having to draw a line somewhere. He mentioned the Senate made that
level of compensation last year, if it was higher than range 21 it
would exempt all legislative staff.
Number 1569
MR. BROWN indicated it's not so much a matter of their advice to
them as a legislator, but their capacity to independently affect
policy and therefore the public's need to know that their
independently affecting policy. There's always going to be a
certain arbitrariness to saying that range 19s and higher are
affecting public policy more than the lower ranges. He said if it
was the wisdom of this committee to increase that to 20 or to lower
it to 15, it will have a fiscal impact and certainly on the
employees of this branch.
CHAIR JAMES mentioned this was another thing that bothers her. For
example if you had a range 19 and range 17 or 16, you could change
their ranges so they don't have to do the reporting. She also
indicated there is no restriction of how long staff works, like
term limits. Chair James concluded Amendment KA.18 is simple, and
they are not dealing with whether or not this ought to be in the
bill or not. On that reason, she said she does not have a problem
with the amendment, however, she does have a problem with the area
that is being amended.
Number 1660
MR. BROWN said once we've standardized the language on what range
level it is, it will be that much easier to do because it will be
in one place in the bill as opposed to throughout the bill. He
recommended KA.18 be adopted.
CHAIR JAMES stated based on the fact that it is language
simplification, but it doesn't fix the problems she has with the
bill.
REPRESENTATIVE BERKOWITZ said the whole purpose of SB 105 is to
increase public confidence in the process. He asked do you agree.
MR. BROWN replied to increase public process and the confidence and
ensure the highest level of (indisc.) government in Alaska, he
believes is the language in the cabinet findings.
REPRESENTATIVE BERKOWITZ said those are fine lofty sentiments. He
asked why is good government conditioned of being a range 19 or
above.
MR. BROWN responded it's for you to decide at what level you want
disclosure to kick in.
Number 1724
REPRESENTATIVE IVAN asked what is the current range that require
disclosure for staff.
MR. BROWN replied they include the director of the Legislative
Affairs Agency, the legislative auditor, the legislative fiscal
analyst, and the director of Leg. Legal [Legal and Research
Services]. He mentioned the bill expands the number of legislative
staffs who are disclosing this information.
MS. BARNETT said to clarify this, under this type of comprehensive
disclosure, all legislative employees must disclose under the close
economic association, etcetera.
MR. BROWN pointed out the only employees who don't have to disclose
are Print Shop employees and some mail room employees. Everyone
else has to file the item by item disclosures.
REPRESENTATIVE IVAN said he was eager to make the process easier
but he was beginning to doubt his own amendment. He considered
withdrawing it. He asked if they were just starting another layer
of disclosure.
MR. BROWN replied it already puts the layer in there. This
amendment does not add a layer of disclosure, it standardizes the
terminology in the layer of disclosure that is already in the bill.
Number 1824
REPRESENTATIVE BERKOWITZ stressed one of the concerns he has is
that staffers deserve some protection for their privacy. If you
already have to make disclosures about close economic association,
and association with lobbyists, or such, how does this enhance any
public awareness and how do you balance that public awareness
against the personal privacy concerns of the staff.
CHAIR JAMES said that wasn't a question for this amendment because
all this amendment specifically does is make it simpler to say
that.
MR. BROWN said he didn't know if they thought it was appropriate
that the executive director of the Legislative Affairs Agency has
to share that information with the public, maybe that's a violation
of her right to privacy under the Alaska Constitution. If that's
the case, maybe make it only legislators who disclose, that's a
policy call.
CHAIR JAMES asked, "Do we have any information anywhere that says
how many public looks at these things and who this public is."
MR. BROWN replied he is not aware of statistics of that nature. He
deferred that question to Ms. Barnett.
CHAIR JAMES asked if there was any objection to Amendment KA.18,
hearing none, the amendment passed.
[[CSSB 105(FIN)AM WAS HELD IN COMMITTEE]
ADJOURNMENT
Number 1929
CHAIR JAMES adjourned the House State Affairs Standing Committee at
10:02 a.m.
| Document Name | Date/Time | Subjects |
|---|