Legislature(1999 - 2000)
05/17/1999 01:35 PM House TRA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE TRANSPORTATION STANDING COMMITTEE
May 17, 1999
1:35 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Chair
Representative Andrew Halcro, Vice Chair
Representative Bill Hudson
Representative John Cowdery
Representative Jerry Sanders
Representative Allen Kemplen
Representative Albert Kookesh
MEMBERS ABSENT
All members present.
COMMITTEE CALENDAR
*CS FOR SENATE BILL NO. 135(FIN)(title am)
"An Act relating to metropolitan planning organizations."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 135
SHORT TITLE: METROPOLITAN PLANNING AUTHORITY
SPONSOR(S): TRANSPORTATION
Jrn-Date Jrn-Page Action
4/08/99 823 (S) READ THE FIRST TIME - REFERRAL(S)
4/08/99 823 (S) TRA, FIN
4/15/99 (S) TRA AT 1:30 PM BUTROVICH 205
4/20/99 (S) TRA AT 1:30 PM BUTROVICH 205
4/20/99 (S) MOVED CS OUT OF COMMITTEE
4/21/99 985 (S) TRA RPT 2DP 1NR
4/21/99 985 (S) DP: WARD, HALFORD; NR: PEARCE
4/21/99 985 (S) ZERO FISCAL NOTE (DOT)
4/21/99 985 (S) FISCAL NOTE (DEC)
5/03/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
5/04/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
5/04/99 (S) MOVED CS (FIN) OUT OF COMMITTEE
5/04/99 (S) RLS AT 3:15 PM FAHRENKAMP 203
5/04/99 (S) MINUTE(FIN)
5/04/99 (S) MINUTE(RLS)
5/04/99 1220 (S) FIN RPT CS 5DP 4NR NEW TITLE
5/04/99 1220 (S) DP: TORGERSON, PARNELL, PHILLIPS,
LEMAN,
5/04/99 1220 (S) DONLEY; NR: GREEN, PETE KELLY,
WILKEN,
5/04/99 1220 (S) ADAMS
5/04/99 1220 (S) PREVIOUS ZERO FN (DOT)
5/04/99 1220 (S) ZERO FISCAL NOTE (S.FIN/DEC)
5/05/99 1249 (S) RULES TO CALENDAR AND 1 OR 5/5/99
5/05/99 1253 (S) READ THE SECOND TIME
5/05/99 1253 (S) FIN CS ADOPTED UNAN CONSENT
5/05/99 1253 (S) AM NO 1 ADOPTED UNAN CONSENT
5/05/99 1254 (S) ADVANCED TO THIRD READING UNAN
CONSENT
5/05/99 1254 (S) READ 3RD TIME CSSB 135(FIN)(TITLE
AM)
5/05/99 1254 (S) PASSED Y13 N6 A1
5/05/99 1254 (S) ELLIS NOTICE OF RECONSIDERATION
5/06/99 1276 (S) RECON TAKEN UP - IN THIRD READING
5/06/99 1277 (S) PASSED ON RECONSIDERATION Y14 N6
5/06/99 1281 (S) TRANSMITTED TO (H)
5/07/99 1222 (H) READ THE FIRST TIME - REFERRAL(S)
5/07/99 1222 (H) TRANSPORTATION
5/17/99 (H) TRA AT 1:00 PM CAPITOL 17
WITNESS REGISTER
SENATOR DONLEY
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
Telephone: (907) 465-3982
POSITION STATEMENT: Testified as sponsor of SB 135.
ACTION NARRATIVE
TAPE 99-20, SIDE A
Number 0001
CHAIR BEVERLY MASEK called the House Transportation Standing
Committee meeting to order at 1:35 p.m. Members present at the
call to order were Representatives Masek, Halcro, Hudson, Cowdery,
Sanders, Kemplen and Kookesh.
SB 135-METROPOLITAN PLANNING AUTHORITY
Number 0056
CHAIR MASEK announced that the only order of business before the
committee would be CS FOR SENATE BILL NO. 135(FIN)(title am), "An
Act relating to metropolitan planning organizations." She informed
the committee that there is a committee substitute (CS) and a
Department of Environmental Conservation (DEC) fiscal note that
need to be adopted.
REPRESENTATIVE HUDSON moved to adopt the committee substitute
labeled LS0785\K, Utermohle, 5/16/99, as the working document
before the committee.
SENATOR DONLEY, sponsor of SB 135, Alaska State Legislature,
informed the committee that he was shown the CS about an hour ago.
Senator Donley stated his belief that adoption of the CS would be
a mistake. He believed that the House and the Senate should be
allowed to choose their own member for the Anchorage Metropolitan
Area Transportation Study (AMATS) committee and not have that
subject to the local government which could create difficulties.
He suggested that it would be more appropriate for the Anchorage
caucus to choose the two members. With regard to the fiscal note,
he pointed out that there is no law requiring the DEC to be a
voting member of AMATS. Furthermore, this fiscal note was based
upon the notion that DEC would create a separate committee, if it
was not on AMATS, and the money would be utilized for the creation
of that separate committee to deal with air quality issues that
AMATS currently addresses. He explained that was resolved by
allowing DEC a nonvoting seat on AMATS. Although DEC would like to
continue to have a voting seat on AMATS, there is nothing in
federal law requiring such.
Number 0253
REPRESENTATIVE COWDERY surmised then that was the main difference
encompassed in the CS; is there any other difference?
SENATOR DONLEY said that he didn't believe there was an other
difference, but reiterated that he had only reviewed the CS a half
an hour earlier.
REPRESENTATIVE COWDERY seemed to recall a resolution from the
assembly in support of this legislation.
SENATOR DONLEY clarified that the new assembly has not yet taken a
position on this matter, while the old assembly voted against this
last year.
REPRESENTATIVE COWDERY pointed out that often constituents come to
legislators with problems and improvements, but legislators have
little voice in this area because AMATS makes the decisions. He
noted that this matter was before the Anchorage caucus. He
inquired as to the result of the vote on this matter.
SENATOR DONLEY informed the committee that this legislation was
introduced by the Senate Transportation Committee per the request
of the Anchorage caucus. The Anchorage caucus voted,
overwhelmingly, in favor of this legislation.
Number 0438
REPRESENTATIVE HUDSON indicated that it would be helpful to discuss
the need for this legislation.
SENATOR DONLEY explained that federal law requires in metropolitan
areas of over 50,000 or 200,000 that there be a metropolitan
planning organization (MPO). According to federal law, it is
supposed to be created by state statute. This MPO has the
responsibility for coordinating and prioritizing projects within
the community. Alaska has never adopted any legislation regarding
the MPO which is required in order for Anchorage to utilize federal
funds. A few years ago, the governor and mayor signed an operating
agreement which created the policy committee for the AMATS process.
This committee consists of three members from the city and two, one
from DEC and one from DOT/PF, from the state. Senator Donley noted
that the Island of Oahu's MPO has six legislators, five local
councilman, an individual from the governor and the mayor.
SENATOR DONLEY said there are several problems. Firstly, the
current AMATS committee has not been producing its final
transportation improvement plan (TIP) until late in the session.
Although there have been requests to provide the plan earlier such
as in January, AMATS has refused. Currently, there is no final TIP
for the Anchorage area to utilize for its capital budget for this
year. That illustrates the serious planning problems with the
current structure due to the lack of coordination with the
legislature which is expected to appropriate the funds. Therefore,
the desire is to have a better level of coordination in developing
the transportation projects in Anchorage.
CHAIR MASEK commented that this legislation changes the
representation of AMATS which currently has three members. The
proposal at hand would increase AMATS by two Anchorage legislators
and DEC is dropped down to a nonvoting member status.
REPRESENTATIVE HALCRO inquired as to who was responsible for the
House CS.
CHAIR MASEK answered, the House Transportation Standing Committee.
Number 0836
REPRESENTATIVE HALCRO indicated that there seem to be some
constitutional questions, per the dual office-holding prohibition,
regarding legislators serving on AMATS. He asked if that has been
resolved.
SENATOR DONLEY clarified that the attorney general, in an informal
opinion published in 1971 or 1977, said that legislators aren't
allowed to serve on other committees, or hold offices. However,
the legislature has placed legislators on joint committees, et
cetera which were not-for-profit positions. Senator Donley
emphasized that the constitution prohibits legislators from serving
on committees for which the legislator is paid to serve. This
legislation is clear that a legislator would not receive any
compensation for serving on AMATS. Therefore, the Senate believed
this legislation was in compliance.
SENATOR DONLEY utilized Hawaii as an example. Hawaii's
constitution prohibits dual office-holding whether for-profit or
not-for-profit. The Hawaii MPO requires six legislators because it
is advisory. The federal government has approved that MPO which
has been working for many years. Senator Donley believed it to be
inconsistent to say that Alaska's less restrictive constitution
will not allow such.
REPRESENTATIVE SANDERS agreed that there have been problems with
AMATS in Anchorage. Representative Sanders said that he was in
favor of this because he wanted something done.
Number 1029
REPRESENTATIVE KEMPLEN commented that the current AMATS structure
has been in place for a number of years and it has appropriated a
significant amount of money for transportation improvements in the
Municipality of Anchorage. He informed the committee that he has
worked in the Municipality of Anchorage as a Special Projects
Planner and was involved with AMATS. Therefore, Representative
Kemplen has attended a number of AMATS meetings. He explained that
AMATS is structured as it is, with regard to local control, due to
the recognition of the tie between transportation and land use.
Land use is a local government function. Representative Kemplen
said that AMATS is geared toward balancing out the needs of many
groups in Anchorage.
REPRESENTATIVE KEMPLEN expressed concern with state representatives
because the connection between the technical professionals and the
transportation professionals is weakened. Anchorage is a
non-attainment area for air quality and is subject to restrictions
with regard to federal transportation dollars. Therefore, the
proposed legislation which places the DEC member as a nonvoting
member weakens the Clean Air Act provisions. This is of serious
concern. He suggested that the CS is an appropriate middle-ground
because it allows for the Municipality of Anchorage to continue to
have a voice in the membership of this important body.
Representative Kemplen noted that he had copies of the resolution
that was provided to members last session. That resolution voiced
concern and opposition to the change in AMATS. Furthermore, he has
a letter from a current assembly member, Pat Abney, who has served
on AMATS; she expressed opposition to the proposed change in AMATS
because AMATS works very well. The assembly is the elected
leadership of the metropolitan area and therefore, the assembly
should have the largest say because the assembly is ultimately
responsible to the citizens in that community.
Number 1379
REPRESENTATIVE HUDSON understood the principal change between the
work draft and the Senate version is located on page 2. The
language would require approval by a majority of the members of the
governing body, the municipality. Perhaps, Senator Donley could
speak to his preference.
SENATOR DONLEY reiterated that he preferred to have the House
choose its member and the Senate do the same. However, as a
compromise, he would support restoring the voting power of DEC
which would eliminate any argument regarding the fiscal note. The
only reason for the fiscal note is DEC's assertion that if DEC is
nonvoting on AMATS, it would have to create a separate committee to
tackle the air quality issues that AMATS currently deals with. In
response to Representative Halcro, Senator Donley noted that SB 259
was a similar bill in the last legislature which was on the final
calendar for action, but did not make it to the floor.
REPRESENTATIVE HALCRO commented that he had concerns with AMATS,
especially in light of his time on the community council. He cited
concern from AMATS with regard to the involvement of public input
and the notice of meetings. Representative Halcro asked if it
would be a safer approach to dictate rules on meetings and public
notification versus changing the configuration of the board.
SENATOR DONLEY indicated agreement. However, without a
'legislative liaison' within the process there will continue to be
a lack of information regarding why AMATS does as it does. Senator
Donley noted that Representative Kemplen has been consistently
concerned with this issue and was one of the two dissenting votes
of the Anchorage caucus. Senator Donley said that it is not
appropriate to say that AMATS appropriates money. The legislature
is the only group that can appropriate expenditures on behalf of
the state and the only group that can appropriate federal
expenditures in the state. Therefore, without coordination, the
state is asked to appropriate money without knowledge as to the
basis for the priorities which aren't even received until May.
CHAIR MASEK requested that the Administration comment on that
point.
Number 1627
REPRESENTATIVE HALCRO surmised that AMATS determines a list of
priority projects and the Finance Committee is responsible for
funding those projects. Therefore, the finance committee has a
"say" in whether a project is funded or not. He asked if there is
a way to place legislators on AMATS as nonvoting members in order
to provide the legislature with input and information to bring back
to the entire legislature. Such structure could avoid parochial
tendencies.
SENATOR DONLEY commented that he has heard the parochial argument
before. He pointed out that AMATS already has two members that are
Anchorage assembly members which are elected by different areas of
Anchorage. Therefore, the same temptation exists under the current
structure, but that is countered because they return to the
assembly who votes as a group on the final AMATS proposal. Senator
Donley stressed that the same happens in this legislation as the
legislators have to justify AMATS actions or the legislature could
not place the projects in the budget. Perhaps, including
legislators could actually balance out the situation.
REPRESENTATIVE KOOKESH asked if there has been a more recent
memorandum from the Department of Law than the memorandum dated May
5, 1999. He interpreted the Department of Law's memorandum to
indicate that there should be no legislators in this process.
SENATOR DONLEY explained that traditionally the Department of Law
has opposed legislators serving on any other body on the basis of
an informal attorney general opinion, not a court case. However,
the legislative branch believes that is not what the Alaska
Constitution requires. The Alaska Constitution says that
legislators can't serve in any other office for-profit. This
legislation specifically says that a legislator will not be paid
for service. Furthermore, AMATS is an advisory committee which
can't take any action without legislative approval within the
budget. Senator Donley reiterated the correlation to Hawaii's
constitution which has an absolute prohibition of dual office-
holding, but Hawaii's AMATS has legislative members because it is
advisory.
REPRESENTATIVE KOOKESH commented that if a lawsuit is desired, then
this legislation should move forward. Perhaps, that would be
appropriate in order to receive clarification on this issue.
SENATOR DONLEY answered, in response to Chair Masek, that there are
four new members on the Anchorage Assembly.
CHAIR MASEK understood that the new members have not yet had a
chance to comment on this legislation.
Number 1865
SENATOR DONLEY read the following boards and commissions upon which
legislators sit: the Alaska Commission on Postsecondary Education,
the Citizens Advisory Commission on Federal Areas in Alaska, the
Multi-State Tax Compact Advisory Committee, and the Governor's
Commission on the Administration of Justice.
REPRESENTATIVE HUDSON inquired as to the time restrictions on this.
Number 1910
SENATOR DONLEY directed the committee to page 2, lines 15-17 which
require that AMATS provide the legislature with its plan by January
15 of each year. He said that if this is not passed this year,
the legislature will face the same problem as this year; no plan
was received until May.
REPRESENTATIVE HUDSON clarified that he was asking if anything in
federal law required this action and in a timely fashion.
SENATOR DONLEY stated, "The federal law says that, ...'If at all
possible, the MPO is supposed to be enacted by state statute.'
Basically, the mayor and the governor just ignored that when they
went they behind the legislature's back and signed an operating
agreement to do this. They never have tried to come and create a
statute." Senator Donley stressed there is a serious question as
to whether AMATS is even legal. He believed AMATS is subject to
challenge because it also violates the Administrative Procedures
Act. He informed the committee that in the Kenai case the Alaska
Supreme Court ruled that if resources are to be allocated, that
must be by regulation. Regulations have never been adopted for the
current criteria for the state transportation improvement plan STIP
process in Alaska. Therefore, it is in violation of the state law
and constitution. He pointed out that the AMATS allocation is a
direct result of that STIP process which is illegally done by
criteria.
CHAIR MASEK announced that the committee had been summoned to the
floor and therefore, the committee would be recessed to the call of
the chair.[This meeting was continued on May 18, 1999.]
ADJOURNMENT
Therefore, Chair Masek recessed the House Transportation Standing
Committee meeting to the call of the chair at 2:12 p.m.
[This meeting was continued on May 18, 1999.]
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