Legislature(2019 - 2020)SENATE FINANCE 532

07/09/2019 01:30 PM Senate FINANCE



Audio Topic
01:33:02 PM Start
01:36:05 PM Legislative Audit: Constitutional Budget Reserve and Reverse Sweep
03:15:39 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Legislative Audit: Constitutional Budget Reserve TELECONFERENCED
& Reverse Sweep by Kris Curtis, Legislative
Auditor & Megan Wallace, Legislative Legal
Services Director
                 SENATE FINANCE COMMITTEE                                                                                       
                  SECOND SPECIAL SESSION                                                                                        
                       July 9, 2019                                                                                             
                         1:33 p.m.                                                                                              
                                                                                                                                
1:33:02 PM                                                                                                                    
                                                                                                                                
CALL TO ORDER                                                                                                                 
                                                                                                                                
Co-Chair  Stedman   called  the  Senate   Finance  Committee                                                                    
meeting to order at 1:33 p.m.                                                                                                   
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Natasha von Imhof, Co-Chair                                                                                             
Senator Bert Stedman, Co-Chair                                                                                                  
Senator Click Bishop                                                                                                            
Senator Lyman Hoffman                                                                                                           
Senator Donny Olson                                                                                                             
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Peter Micciche                                                                                                          
Senator Mike Shower                                                                                                             
Senator David Wilson                                                                                                            
                                                                                                                                
ALSO PRESENT                                                                                                                  
                                                                                                                                
Megan Wallace, Director,  Legislative Legal Services, Alaska                                                                    
State Legislature; Kris  Curtis, Legislative Auditor, Alaska                                                                    
Division  of  Legislative   Audit;  Senator  Cathy  Giessel;                                                                    
Senator Chris Birch; Representative Sara Hannan.                                                                                
                                                                                                                                
SUMMARY                                                                                                                       
                                                                                                                                
LEGISLATIVE   AUDIT:  CONSTITUTIONAL   BUDGET  RESERVE   and                                                                    
REVERSE SWEEP                                                                                                                   
                                                                                                                                
Co-Chair Stedman  relayed that the committee  would continue                                                                    
to discuss  the Constitutional Budget Reserve  (CBR) and the                                                                    
reverse sweep. He explained that  at the end of every fiscal                                                                    
year there were some accounts  that were zeroed out, and the                                                                    
money was moved  to the CBR if  there was a debt  to it. Any                                                                    
appropriations out  of the accounts the  following day would                                                                    
find that  the accounts  were empty or  severely restricted.                                                                    
Earlier  in  the  day,  the committee  had  heard  from  the                                                                    
Legislative  Finance Division  (LFD) on  the subject  of the                                                                    
reverse sweep and some of the state's account balances.                                                                         
                                                                                                                                
Co-Chair Stedman  continued his remarks. He  shared that the                                                                    
committee would hear from the  director of Legislative Legal                                                                    
Services (LLS), as well as the Legislative Auditor.                                                                             
                                                                                                                                
^LEGISLATIVE  AUDIT:   CONSTITUTIONAL  BUDGET   RESERVE  and                                                                  
REVERSE SWEEP                                                                                                                 
                                                                                                                                
1:36:05 PM                                                                                                                    
                                                                                                                                
MEGAN WALLACE, DIRECTOR,  LEGISLATIVE LEGAL SERVICES, ALASKA                                                                    
STATE  LEGISLATURE, discussed  the presentation,  "Sweep and                                                                    
Reverse  Sweep"  (copy on  file).  She  looked at  slide  2,                                                                    
"Constitutional Budget  Reserve Fund Article IX,  Section 17                                                                    
of the Alaska Constitution":                                                                                                    
                                                                                                                                
     Passed  by  the  16th  Alaska  State  Legislature,  HCS                                                                    
     CSSSSJR 5  (FIN) am  H (1990), as  an amendment  to the                                                                    
     state constitution.                                                                                                        
                                                                                                                                
     Approved  by the  voters  11/06/90  with 124,280  votes                                                                    
     for, and 63,307 against the amendment.                                                                                     
                                                                                                                                
Ms.  Wallace  planned  on  discussing  legislative  history,                                                                    
including  a  few  Alaska  Supreme  Court  decisions,  which                                                                    
explained  how to  interpret  and carry  out  the sweep  and                                                                    
reverse sweep if appropriated each year.                                                                                        
                                                                                                                                
Ms. Wallace highlighted slide 3,  "Article IX, Section 17(a)                                                                    
of the Alaska Constitution":                                                                                                    
                                                                                                                                
     (a)  There is  established as  a separate  fund in  the                                                                    
     State  treasury the  budget  reserve  fund. Except  for                                                                    
     money deposited  into the permanent fund  under Section                                                                    
     15 of  this article,  all money  received by  the State                                                                    
     after July  1, 1990,  as a  result of  the termination,                                                                    
     through settlement  or otherwise, of  an administrative                                                                    
     proceeding  or  of litigation  in  a  State or  federal                                                                    
     court   involving  mineral   lease  bonuses,   rentals,                                                                    
     royalties,  royalty  sale   proceeds,  federal  mineral                                                                    
     revenue  sharing  payments  or  bonuses,  or  involving                                                                    
     taxes  imposed   on  mineral  income,   production,  or                                                                    
     property,  shall be  deposited  in  the budget  reserve                                                                    
     fund.  Money  in  the  budget  reserve  fund  shall  be                                                                    
     invested  so as  to yield  competitive market  rates to                                                                    
     the fund. Income  of the fund shall be  retained in the                                                                    
     fund.  Section 7  of  this article  does  not apply  to                                                                    
     deposits made to the fund  under this subsection. Money                                                                    
     may be  appropriated from the  fund only  as authorized                                                                    
     under (b) or (c) of this section.                                                                                          
                                                                                                                                
     This subsection establishes the fund.                                                                                      
                                                                                                                                
Ms. Wallace  addressed slide 4,  "Article IX,  Section 17(b)                                                                    
of the Alaska Constitution":                                                                                                    
                                                                                                                                
     (b)  If the  amount available  for appropriation  for a                                                                    
     fiscal year  is less  than the amount  appropriated for                                                                    
     the previous fiscal year, an  appropriation may be made                                                                    
     from  the  budget  reserve fund.  However,  the  amount                                                                    
     appropriated from  the fund  under this  subsection may                                                                    
     not exceed  the amount  necessary, when added  to other                                                                    
     funds  available  for  appropriation,  to  provide  for                                                                    
     total   appropriations   equal   to   the   amount   of                                                                    
     appropriations made  in the previous calendar  year for                                                                    
     the previous fiscal year.                                                                                                  
                                                                                                                                
     This subsection  allows for  an appropriation  from the                                                                    
     CBRF by a simple majority  vote if the amount available                                                                    
     for appropriation is less  than the amount appropriated                                                                    
     for the previous fiscal year.                                                                                              
                                                                                                                                
Ms.  Wallace  explained  that  in   instances  of  a  budget                                                                    
deficit,  the  provision  would  allow  the  legislature  to                                                                    
access the  CBR with  a simple majority  vote if  the amount                                                                    
available  for  appropriation  was   less  than  the  amount                                                                    
appropriated for  the previous fiscal year.  She stated that                                                                    
the key  element to the  provision was the  amount available                                                                    
for appropriation.  She referenced the Alaska  Supreme Court                                                                    
decision in  Hickel v. Cooper  [a 1994 case which  arose out                                                                    
of  a   legislative  attempt  to  define   terms  pertaining                                                                    
appropriation], which established  that the Earnings Reserve                                                                    
Account  (ERA)  was  to  be  considered  part  of  what  was                                                                    
available for  appropriation. The  legislature had  hot been                                                                    
able to access  the CBR with a simple  majority vote because                                                                    
the balance of the ERA was  too large to permit access under                                                                    
the provision.                                                                                                                  
                                                                                                                                
Ms. Wallace  looked at slide  5, "Article IX,  Section 17(c)                                                                    
of the Alaska Constitution":                                                                                                    
                                                                                                                                
     (c) An  appropriation from the budget  reserve fund may                                                                    
     be made  for any  public purpose upon  affirmative vote                                                                    
     of three-fourths  of the members  of each house  of the                                                                    
     legislature.                                                                                                               
                                                                                                                                
     This subsection  allows for any appropriation  from the                                                                    
     CBRF with a supermajority vote.                                                                                            
                                                                                                                                
Ms. Wallace  noted that  the reverse  sweep, which  caused a                                                                    
lot of  confusion, was actually just  an appropriation under                                                                    
Article IX, Section 17(c).                                                                                                      
                                                                                                                                
1:39:58 PM                                                                                                                    
                                                                                                                                
Ms. Wallace highlighted slide 6,  "Article IX, Section 17(d)                                                                    
of the Alaska Constitution":                                                                                                    
                                                                                                                                
     (d)  If  an  appropriation  is  made  from  the  budget                                                                    
     reserve fund, until the  amount appropriated is repaid,                                                                    
     the amount of  money in the general  fund available for                                                                    
     appropriation  at the  end  of  each succeeding  fiscal                                                                    
     year  shall be  deposited in  the budget  reserve fund.                                                                    
     The  legislature  shall  implement this  subsection  by                                                                    
     law.                                                                                                                       
                                                                                                                                
     This subsection is known as  the "sweep" provision. The                                                                    
     sweep automatically occurs; no vote is required.                                                                           
                                                                                                                                
Ms. Wallace informed that the CBR  was set up as a fund that                                                                    
the  legislature  could  borrow   from,  and  the  provision                                                                    
provided  that at  the end  of  each fiscal  year the  money                                                                    
available  for appropriation  in the  General Fund  (GF) was                                                                    
swept back to the CBR.  The sweep occurred every year. Prior                                                                    
to  FY  20,  the  legislature had  appropriated  a  "reverse                                                                    
sweep," sending  the funds  back to  the accounts  that they                                                                    
originated from.                                                                                                                
                                                                                                                                
Senator Wielechowski thought the ERA  was not swept into the                                                                    
CBR.                                                                                                                            
                                                                                                                                
Ms. Wallace  replied in the  affirmative. She noted  that in                                                                    
the  Hickel  v.  Cowper  case,   the  Alaska  Supreme  Court                                                                    
articulated that the requirement for  the sweep was that the                                                                    
funds  be  in   the  General  Fund  and   be  available  for                                                                    
appropriation.  Because  the  ERA  was  an  account  in  the                                                                    
Permanent Fund,  the courts stated  that the funds  were not                                                                    
subject to the sweep.                                                                                                           
                                                                                                                                
Senator  Wielechowski thought  the court  had said  that the                                                                    
funds had  been already appropriated by  the legislature for                                                                    
dividends  and  inflation  proofing. He  thought  everything                                                                    
outside of  inflation proofing  and dividends  was available                                                                    
for   appropriation.  He   thought  it   was  an   important                                                                    
distinction.                                                                                                                    
                                                                                                                                
1:42:37 PM                                                                                                                    
                                                                                                                                
Ms. Wallace  stated that in  the Hickel v. Cowper  case, the                                                                    
Supreme Court  specifically stated  (when it  was discussing                                                                    
the provisions in Section 17(d)):                                                                                               
                                                                                                                                
     "Available  amounts outside  the General  Fund such  as                                                                    
     the ERA  need not be  deposited in the  budget reserve.                                                                    
     This  additional  limitation  has no  effect  on  funds                                                                    
     which exist within the General Fund."                                                                                      
                                                                                                                                
Ms. Wallace discussed slide 7, "The 'Reverse Sweep'":                                                                           
                                                                                                                                
     The "reverse  sweep" is an appropriation  from the CBRF                                                                    
     that returns swept funds back  to the original sub fund                                                                    
     or  account. The  "reverse sweep"  is an  appropriation                                                                    
     under art. IX,  sec. 17(c), and requires a  3/4 vote to                                                                    
     pass.                                                                                                                      
                                                                                                                                
     Standard "reverse sweep" appropriation language reads:                                                                     
                                                                                                                                
          Deposits  in the  budget  reserve  fund (art.  IX,                                                                    
          sec. 17, Constitution of the  State of Alaska) for                                                                    
          fiscal year  2019 that are made  from subfunds and                                                                    
          accounts  other than  the  operating general  fund                                                                    
          (state  accounting  system  fund number  1004)  by                                                                    
          operation of art. IX, sec. 17(d),                                                                                     
          Constitution  of the  State  of  Alaska, to  repay                                                                    
          appropriations  from the  budget reserve  fund are                                                                    
          appropriated from  the budget reserve fund  to the                                                                    
          subfunds and accounts from  which those funds were                                                                    
          transferred.                                                                                                          
                                                                                                                                
Ms.  Wallace  noted  that  the  legislature  considered  the                                                                    
language as  part of the  capital budget, but  the provision                                                                    
did not have  enough votes to be successful. As  of yet, the                                                                    
legislature had not approved a reverse sweep for FY 20.                                                                         
                                                                                                                                
1:44:46 PM                                                                                                                    
                                                                                                                                
Ms. Wallace addressed  slide 8, "Hickel v.  Cowper, 874 P.2d                                                                    
922 (1994) What is "available for appropriation"?"                                                                              
                                                                                                                                
     In  summary, the  "amount available  for appropriation"                                                                    
     within the  meaning of  article IX,  section 17  of the                                                                    
     Alaska Constitution includes all  monies over which the                                                                    
     legislature has  retained the power to  appropriate and                                                                    
     which    require     further    appropriation    before                                                                    
     expenditure.   In   addition,  all   amounts   actually                                                                    
     appropriated,  whether  or  not they  would  have  been                                                                    
     considered  available   prior  to   appropriation,  are                                                                    
     available within  the meaning  of section  17. Illiquid                                                                    
     assets,   such   as   land  and   unexploited   natural                                                                    
     resources,  are not  available so  long as  they remain                                                                    
     illiquid.  For   these  reasons,  trust   receipts  are                                                                    
     available  for appropriation,  as  are  funds like  the                                                                    
     Railbelt  energy fund  and  the educational  facilities                                                                    
     maintenance  and  construction   fund,  which  are  not                                                                    
     available    for    expenditure   without    additional                                                                    
     appropriations.  In  contrast,  the oil  and  hazardous                                                                    
     substance  release  response  fund is  not  counted  as                                                                    
     available because  the entire  balance of the  fund may                                                                    
     be  expended at  any time  without further  legislative                                                                    
     action.  The  availability  of funds  not  specifically                                                                    
     discussed  in  this  opinion   must  be  determined  in                                                                    
     accordance  with this  opinion. Finally,  the permanent                                                                    
     fund  earnings  reserve  account  must  be  counted  as                                                                    
     available  for  appropriation,  because  appropriations                                                                    
     may  be  made  from  it   and  it  is  not  subject  to                                                                    
     expenditure without legislative action.                                                                                    
                                                                                                                                
Ms. Wallace detailed  that the legislature had  passed a few                                                                    
provisions intended  to implement the sweep.  The provisions                                                                    
were  found  in  AS  37.10.420. She  recounted  that  former                                                                    
Governor Steve  Cowper had challenged  the constitutionality                                                                    
of  the  enacted provisions.  At  the  time, Governor  Wally                                                                    
Hickel defended  the provisions.  The Hickel v.  Cowper case                                                                    
extensively considered  what was  meant to be  available for                                                                    
appropriation under Article IX  Section 17(b). The court had                                                                    
found that the majority  of the statutory provisions enacted                                                                    
by the  legislature were  unconstitutional because  they did                                                                    
not   include  enough   funds  within   the  definition   of                                                                    
"available for appropriation."                                                                                                  
                                                                                                                                
Ms. Wallace  continued to discuss  slide 8. She  stated that                                                                    
the slide  showed a  quote that  summarized the  analysis of                                                                    
the court. The  bulk of the analysis in  the court's opinion                                                                    
(with  respect  to  what  it  meant  to  be  "available  for                                                                    
appropriation") was  the simple  access provision.  Later in                                                                    
the  opinion, the  Alaska Supreme  Court specifically  noted                                                                    
there was  no reason  to give any  different meaning  to the                                                                    
term "available  for appropriation"  in subsection  (b) than                                                                    
it  was in  subsection (d).  The term  had the  same meaning                                                                    
throughout the section.                                                                                                         
                                                                                                                                
Ms.  Wallace  noted  that all  funds  that  the  legislature                                                                    
retained  the power  to appropriate,  that required  further                                                                    
appropriation, would be subject to  the sweep. It notes that                                                                    
illiquid assets did  not have to be swept.  While funds that                                                                    
require further  appropriations were  swept, those  that did                                                                    
not  (such  as  the  Oil  and  Hazardous  Substance  Release                                                                    
Response Fund)  were not  subject to  the sweep  because the                                                                    
funds  could  be  appropriated  without  legislative  action                                                                    
until there  was no  balance. The  Supreme Court  noted that                                                                    
the  ERA must  be  counted as  available for  appropriation.                                                                    
While  the Alaska  Supreme  Court  identified certain  funds                                                                    
that  were and  were  not available  for appropriation,  the                                                                    
Supreme Court  said that if  there were funds  not discussed                                                                    
in the opinion, the question  of whether they were available                                                                    
for appropriation must be determined  in accordance with the                                                                    
opinion.                                                                                                                        
                                                                                                                                
1:49:57 PM                                                                                                                    
                                                                                                                                
Co-Chair  von  Imhof  thought  that  "amount  available  for                                                                    
appropriation" meant  whether the money could  be swept from                                                                    
sub-funds  into  the SBR.  She  wanted  to define  the  word                                                                    
appropriation.                                                                                                                  
                                                                                                                                
Ms. Wallace  clarified that the  quote gave guidance  on how                                                                    
the legislature  determined which  funds were  available for                                                                    
appropriation.                                                                                                                  
                                                                                                                                
Co-Chair von  Imhof reiterated that  her question  was about                                                                    
the  verb  "appropriate,"  which she  thought  meant  moving                                                                    
money from one account to another.                                                                                              
                                                                                                                                
Ms. Wallace replied in the  affirmative. She stated that the                                                                    
test was  to determine whether  or not funds  were available                                                                    
for  appropriation by  the  legislature.  Whether the  funds                                                                    
qualified  to be  calculated depended  upon the  analysis of                                                                    
whether  the   funds  could  be  expended   without  further                                                                    
appropriation.                                                                                                                  
                                                                                                                                
1:52:33 PM                                                                                                                    
                                                                                                                                
Co-Chair  von  Imhof  referenced Senator  Bishop's  comments                                                                    
about sources  of revenue in  some funds that may  have been                                                                    
deposits  made   by  private  citizens.  She   thought  what                                                                    
triggered monies  to be available  by appropriation  did not                                                                    
necessarily  sound like  the source  of  income, but  rather                                                                    
whether the  legislature had  appropriating powers  over the                                                                    
money. She  thought the  question was  if an  account source                                                                    
was  private  money  (donations,  matching  funds  by  other                                                                    
organizations) and whether it could be swept.                                                                                   
                                                                                                                                
Ms. Wallace answered in the  negative. She stated the monies                                                                    
that  were  available  for  appropriation  would  come  with                                                                    
restrictions.  If a  fund  consisted  of private  donations,                                                                    
there  were  certain  taxes or  federal  receipts  that  had                                                                    
restrictions on how  the funds could be used,  and the funds                                                                    
could   not  be   expended   without   recognition  of   the                                                                    
restrictions. The  decision had not explored  the nuances of                                                                    
how  to determine  how private  donations and  other special                                                                    
monies would  be swept. She  thought the matter was  more of                                                                    
an  accounting determination.  She  thought the  legislative                                                                    
auditor could address how comingled  funds could be swept or                                                                    
not.                                                                                                                            
                                                                                                                                
1:55:20 PM                                                                                                                    
                                                                                                                                
Senator  Wielechowski addressed  what  funds were  available                                                                    
for appropriation and  quoted a sentence from  the Hickel v.                                                                    
Cowper ruling:                                                                                                                  
                                                                                                                                
     "Money  in the  ERA  never passes  through the  General                                                                    
     Fund  and   is  never  appropriated  as   such  by  the                                                                    
     legislature. A  percentage of the  money in the  ERA is                                                                    
     automatically transferred  to the Dividend Fund  at the                                                                    
     end of each  fiscal year. After that  transfer has been                                                                    
     made an  additional amount is transferred  from the ERA                                                                    
     to  the principal  in order  to offset  the effects  of                                                                    
     inflation."                                                                                                                
                                                                                                                                
Senator Wielechowski  stated that his interpretation  of the                                                                    
ruling was  that the  money for  the dividend  and inflation                                                                    
proofing had  already been  appropriated by  the legislature                                                                    
and was not subject to the  sweep. He thought it seemed that                                                                    
the court  had effectively  stated that  the entire  ERA was                                                                    
part of the GF; so, the  whole ERA needed to get swept every                                                                    
year. He was curious about Ms. Wallace's opinion.                                                                               
                                                                                                                                
Ms. Wallace stated  that when the court  was considering the                                                                    
sweep provision while giving guidance  for Hickel v. Cowper,                                                                    
it specifically stated  that the ERA wouldn't  be subject to                                                                    
the  sweep because  it  was  not in  the  General Fund.  She                                                                    
referenced the  Wielechowski v. State  case [a 2017  case to                                                                    
effectively set aside  the governor's veto a  portion of the                                                                    
appropriation of  funds for PFD distributions  in 2016]. She                                                                    
pointed out  that that  in the  Wielechowski v.  State case,                                                                    
the Supreme Court acknowledged that  it was mistaken (in the                                                                    
Hickel v.  Cowper case) in  terms of the  legislature having                                                                    
appropriated from the dividend.                                                                                                 
                                                                                                                                
Ms. Wallace discussed  slide 9, "Hickel v.  Cowper, 874 P.2d                                                                    
922 (1994) What is subject to the sweep?":                                                                                      
                                                                                                                                
     We see no reason  to give "available for appropriation"                                                                    
     a different  meaning in subsection  (d) than we  did in                                                                    
     subsection  (b).   We  recognize,  however,   that  the                                                                    
     payback provision  in section 17(d) is  limited to only                                                                    
     those  funds which  are  "available for  appropriation"                                                                    
     and  "in the  general  fund."  Thus, available  amounts                                                                    
     outside the general fund, such  as the earnings reserve                                                                    
     account, need  not be deposited in  the budget reserve.                                                                    
     This  additional  limitation  has no  effect  on  funds                                                                    
     which exist within the general fund.                                                                                       
                                                                                                                                
Ms. Wallace  noted that the  slide showed the quote  she had                                                                    
been referring to. The opinion  stated that when considering                                                                    
the  payback   provision,  it  was  limited   to  the  funds                                                                    
available  for appropriation  and in  the General  Fund. The                                                                    
Alaska   Supreme  Court   had  emphasized   that  when   the                                                                    
legislature was  determining what  should and should  not be                                                                    
swept;  not only  do  the  funds have  to  be available  for                                                                    
appropriation, but also had to be in the GF.                                                                                    
                                                                                                                                
1:58:43 PM                                                                                                                    
                                                                                                                                
Ms. Wallace looked at slide  10, "Wielechowski v. State, 403                                                                    
P.3d 1141 (2017)":                                                                                                              
                                                                                                                                
     Our  decision today  reinforces our  holding in  Hickel                                                                    
     that   the   earnings   reserve   "is   available   for                                                                    
     appropriation."                                                                                                            
                                                                                                                                
Co-Chair  von  Imhof looked  at  slide  9, and  thought  Ms.                                                                    
Wallace was  asserting that other  funds such as  the Higher                                                                    
Education Fund were sub-accounts of the GF.                                                                                     
                                                                                                                                
Ms. Wallace agreed  that the Higher Education  Fund was part                                                                    
of  the General  Fund  but  thought the  PCE  Fund was  more                                                                    
difficult to  analyze. The  PCE Fund was  an account  in the                                                                    
Energy  Authority, and  there was  no  court decision  about                                                                    
whether  the PCE  Fund was  sweepable.  In another  footnote                                                                    
from Hickel  v. Cowper, the  Alaska Supreme Court  looked at                                                                    
the  receipts  of  the Alaska  Housing  Finance  Corporation                                                                    
(AHFC)  and the  Alaska  Industrial  Development and  Export                                                                    
Authority (AIDEA)  when considering  what was  available for                                                                    
appropriation. The  court had stated  that only  those funds                                                                    
that had been  appropriated and made its way  to the General                                                                    
Fund  from  the  public  corporations  would  be  considered                                                                    
available for appropriation.                                                                                                    
                                                                                                                                
Ms.  Wallace  continued  to  address  Co-Chair  von  Imhof's                                                                    
question.  She  stated there  was  an  open question  as  to                                                                    
whether   the  funds   that  sat   in  accounts   of  public                                                                    
corporations were  in the  General Fund  and subject  to the                                                                    
sweep. She  had not  seen additional  legal analysis  on the                                                                    
issue from the administration.                                                                                                  
                                                                                                                                
Senator Wielechowski asked if there  was a definition of the                                                                    
General Fund in statute or in case law.                                                                                         
                                                                                                                                
Ms. Wallace deferred to Ms. Curtis.                                                                                             
                                                                                                                                
2:01:52 PM                                                                                                                    
                                                                                                                                
KRIS  CURTIS,   LEGISLATIVE  AUDITOR,  ALASKA   DIVISION  OF                                                                    
LEGISLATIVE  AUDIT, stated  that  the constitution  mandated                                                                    
that available funds  be swept to repay the  CBR. She stated                                                                    
that according  to the Supreme  Court, the  determination of                                                                    
whether  a fund  could be  swept depended  upon whether  the                                                                    
funds balance could be  spent without further appropriation.                                                                    
A  fund that  could be  spent without  further appropriation                                                                    
was considered non-sweepable;  and a fund that  could not be                                                                    
spent   without   further   appropriation   was   considered                                                                    
sweepable.                                                                                                                      
                                                                                                                                
Ms. Curtis highlighted slide 11,  "Sec. 37.10.420. Sweep and                                                                    
'available for appropriation' defined":                                                                                         
                                                                                                                                
     (b) If the amount  appropriated from the budget reserve                                                                    
     fund has  not been  repaid under  art. IX,  sec. 17(d),                                                                    
     Constitution of the State of Alaska, the Department of                                                                     
     Administration  shall transfer  to  the budget  reserve                                                                    
     fund  the amount  of money  comprising the  unreserved,                                                                    
     undesignated  general   fund  balance  to   be  carried                                                                    
     forward as  of June 30 of  the fiscal year, or  as much                                                                    
     of it  as is necessary  to complete the  repayment. The                                                                    
     transfer shall be made on  or before December 16 of the                                                                    
     following fiscal year.                                                                                                     
                                                                                                                                
     (c) In this section,  "unrestricted revenue accruing to                                                                    
     the general fund"  or "unreserved, undesignated general                                                                    
     fund balance  carried forward" is money  not restricted                                                                    
     by law  to a specific  use that accrues to  the general                                                                    
     fund according  to accepted principles  of governmental                                                                    
     or  fund accounting  adopted for  the state  accounting                                                                    
     system  established under  AS  37.05.150  in effect  on                                                                    
     July 1, 1990.                                                                                                              
                                                                                                                                
Ms.  Curtis informed  that the  determination of  the amount                                                                    
available to  be swept  was an  accounting process.  The DOA                                                                    
Division  of   Finance  accountants  were   responsible  for                                                                    
calculating  the  sweep as  part  of  preparing the  state's                                                                    
financial   statements,   which   were   referred   to   the                                                                    
Comprehensive Annual Financial Report  (CAFR). The CAFR must                                                                    
be   prepared   in   accordance  with   generally   accepted                                                                    
accounting   principles  and   must   be   audited  by   the                                                                    
legislative  auditor in  accordance with  generally accepted                                                                    
auditing standards.                                                                                                             
                                                                                                                                
Ms. Curtis looked at slide 12, "What is the General Fund?"                                                                      
                                                                                                                                
        The general  fund is  the State's  primary operating                                                                    
     fund.                                                                                                                      
     ?  It  accounts  for  all public  monies  and  revenues                                                                    
     coming  into   the  State  treasury   not  specifically                                                                    
    authorized by statute to be placed in another fund.                                                                         
     ? There are  several accounts and funds  created by law                                                                    
     that are considered  a part of the  general fund. These                                                                    
     are treated  as subfunds  of the  general fund  and are                                                                    
     reported as part of the general fund.                                                                                      
                                                                                                                                
Ms.  Curtis   stated  that  generally   accepted  accounting                                                                    
principals defined the General Fund  in the same manner. The                                                                    
General Fund was  the fund that accounted  for activity that                                                                    
was not required to be accounted  for in some other fund and                                                                    
was residual.  She noted that  sub funds were  accounted for                                                                    
separately  in the  accounting system  but were  reported as                                                                    
part of the general fund in the financial statements.                                                                           
                                                                                                                                
Co-Chair von Imhof asked for  some definitions and a list of                                                                    
sub funds.                                                                                                                      
                                                                                                                                
Ms. Curtis knew that for FY  18 there were 79 sub funds that                                                                    
had  available  balances  in  them.  She  stated  she  would                                                                    
discuss the sub funds later in the presentation.                                                                                
                                                                                                                                
2:05:20 PM                                                                                                                    
                                                                                                                                
Senator Wielechowski  asked if  Ms. Curtis did  not consider                                                                    
the ERA to be part of the General Fund.                                                                                         
                                                                                                                                
Ms. Curtis  stated that the  ERA was not  a sub fund  of the                                                                    
General Fund, and it was maintained by the Permanent Fund.                                                                      
                                                                                                                                
Senator Wielechowski asked for  Ms. Curtis to define General                                                                    
Fund.                                                                                                                           
                                                                                                                                
Ms.  Curtis  defined  the  General Fund  as  the  fund  that                                                                    
accounted for all  the activity that was not  required to be                                                                    
accounted  for in  some other  fund by  law. Because  of the                                                                    
prohibition  of   dedicating  revenue,  there  had   been  a                                                                    
proliferation  of sub  accounts that  were created  as funds                                                                    
within the  general fund that  tracked a  specific activity.                                                                    
She  reiterated  that  there  were many  sub  funds  of  the                                                                    
General Fund.                                                                                                                   
                                                                                                                                
Co-Chair von Imhof believed that  the ERA was established by                                                                    
the  constitution   separately  by   law  and   was  defined                                                                    
specifically.  She  thought the  ERA  was  established as  a                                                                    
separate account.                                                                                                               
                                                                                                                                
Ms.  Curtis  had  not  researched  the  ERA  and  could  not                                                                    
comment. She knew that the court  had stated the ERA was not                                                                    
part of the General Fund.                                                                                                       
                                                                                                                                
Senator Wielechowski thought the  court's statement had been                                                                    
reversed and thought all the  income from the Permanent Fund                                                                    
went  into  the General  Fund  unless  provided by  law.  He                                                                    
thought there was a likelihood that  the ERA was part of the                                                                    
General Fund  and subject  to being swept  into the  CBR. He                                                                    
thought Alaskans would  be shocked and concerned  if the ERA                                                                    
was swept and there was no money for dividends or                                                                               
government.                                                                                                                     
                                                                                                                                
Ms. Curtis addressed slide 13, "How the Sweep Works":                                                                           
                                                                                                                                
     ?  Department of  Administration,  Division of  Finance                                                                    
     accountants  calculate the  sweep  while preparing  the                                                                    
     Comprehensive  Annual  Financial   Report  (CAFR).  The                                                                    
     sweep represents unreserved,  undesignated fund balance                                                                    
     of the general fund subfunds.                                                                                              
                                                                                                                                
     ? Division  of Finance accountants calculate  the sweep                                                                    
     in September as the CAFR  is prepared yet the amount of                                                                    
     the sweep is posted in  the financial records as of the                                                                    
     end of the fiscal year (June 30th).                                                                                        
                                                                                                                                
     ? After the  CAFR is prepared (historically  by the end                                                                    
     of  October), the  CAFR is  audited by  the legislative                                                                    
    auditor. The sweep amount is adjusted as necessary.                                                                         
                                                                                                                                
Ms. Curtis  relayed that when  the audit was  conducted, the                                                                    
audit  was  adjusted for  errors  in  the sweep  calculation                                                                    
itself or  in part of  the financial statements  that impact                                                                    
the sweep. The  last thing that auditors did  was to prepare                                                                    
the final adjustment to the sweep amount.                                                                                       
                                                                                                                                
2:10:00 PM                                                                                                                    
                                                                                                                                
Ms. Curtis highlighted slide 14, "How the FY 18 Sweep                                                                           
Worked":                                                                                                                        
                                                                                                                                
     ? At  Fiscal year-end  (FYE) 18  there were  71 general                                                                    
     fund  subfunds   (excluding  the  CBRF)  with   a  fund                                                                    
     balance.                                                                                                                   
                                                                                                                                
     ? Of the 71 individual subfunds at FYE 18 -                                                                                
                                                                                                                                
          ? 32 were deemed sweepable, meaning the remaining                                                                   
          fund balance cannot be spent without further                                                                          
          appropriation.                                                                                                        
                                                                                                                                
               o  All but  one  of the  32 sweepable  funds,                                                                    
               Aviation  Fuel Tax  Account, had  a remaining                                                                    
               undesignated,    unreserved   fund    balance                                                                    
               available for the sweep calculation.                                                                             
                                                                                                                                
               o A  total $202,684,000  fund balance  of the                                                                    
               sweepable funds was  reported as nonspendable                                                                    
               or  committed,  meaning  that,  although  the                                                                    
               funds were sweepable,  portions of the funds'                                                                    
               balances were not available for sweep.                                                                           
                                                                                                                                
          ? 39 were deemed non-sweepable as the remaining                                                                     
          fund balance can be spent without further                                                                             
          appropriation.                                                                                                        
                                                                                                                                
               o The $880,313,000 fund balance total of the                                                                     
               non-sweepable funds was reported as either                                                                       
               nonspendable, restricted or committed.                                                                           
                                                                                                                                
Ms.   Curtis  referenced   Co-Chair   von  Imhof's   remarks                                                                    
pertaining  to  certain  restrictions on  fund  balances  by                                                                    
different provisions for donations or encumbrances.                                                                             
                                                                                                                                
Co-Chair Stedman asked if  sweepable and non-sweepable funds                                                                    
were the same  from year to year, or if  the decision had to                                                                    
be made  each year.  He asked  how much  political influence                                                                    
went into the calculations.                                                                                                     
                                                                                                                                
Ms.  Curtis  stated  that  the analysis  of  the  funds  was                                                                    
extensive when the court decision  came out. The Division of                                                                    
Legislative Audit  had conferred with the  Department of Law                                                                    
and LFD as to how the  funds should be classified. Every new                                                                    
fund was reviewed,  and the possibility of  changes to other                                                                    
funds was considered.                                                                                                           
                                                                                                                                
Co-Chair Stedman  asked about when  it was possible  to know                                                                    
if a new fund was subject to the sweep or not.                                                                                  
                                                                                                                                
Ms.  Curtis  stated  that  the  division  went  through  the                                                                    
analysis in the  months of September and  October and looked                                                                    
at new funds before statements were available.                                                                                  
                                                                                                                                
Co-Chair Stedman  asked if Ms.  Curtis had been asked  to do                                                                    
any  new reviews  on funds  that  had not  swept before  the                                                                    
current year.                                                                                                                   
                                                                                                                                
Ms. Curtis answered  in the negative and asked  where such a                                                                    
request would come  from. She asked if  Co-Chair Stedman was                                                                    
thinking the request would come from the executive branch.                                                                      
                                                                                                                                
Co-Chair Stedman  answered in the affirmative  and stated he                                                                    
was thinking about the PCE Fund or the education endowment.                                                                     
                                                                                                                                
Ms. Curtis  stated that the  division had not been  asked to                                                                    
review the funds.                                                                                                               
                                                                                                                                
Senator Hoffman  asked what  category the  PCE fell  in when                                                                    
the  division  determined what  funds  were  subject to  the                                                                    
sweep in FY 18.                                                                                                                 
                                                                                                                                
Ms. Curtis stated  that the PCE Fund was part  of AEA, which                                                                    
was audited  by outside auditors  and was outside  the scope                                                                    
of the  review. She noted that  the PCE Fund was  not listed                                                                    
in the following list of funds.  She noted that the PCE Fund                                                                    
had not  always belonged in  AEA, and had been  moved there.                                                                    
The division believed the fund was sweepable.                                                                                   
                                                                                                                                
Senator Hoffman asked why the PCE Fund was moved to AEA.                                                                        
                                                                                                                                
2:13:49 PM                                                                                                                    
                                                                                                                                
Ms. Curtis  conjectured that the  PCE Fund was moved  to AEA                                                                    
so that it was not considered within the General Fund.                                                                          
                                                                                                                                
Senator Hoffman thought  that because the PCE  Fund was part                                                                    
of AEA, it  should have some protection if the  list did not                                                                    
have the PCE  Fund as a sweepable item. He  stated that when                                                                    
reviewing legislation, he did not  recall there was going to                                                                    
be judgement  made by a  specific governor as to  what would                                                                    
be subject to  the sweep and what would not.  He opined that                                                                    
if  the list  from FY  18 did  not list  the PCE  Fund as  a                                                                    
sweepable item,  it should be so  for FY 19 as  well and not                                                                    
left  to  the  discretion   of  whomever  was  governor.  He                                                                    
stressed that  the discretion was  not granted when  the CBR                                                                    
was  created.  He wondered  why  the  FY  19 list  would  be                                                                    
different if the law had not changed.                                                                                           
                                                                                                                                
Ms. Curtis shared that LAW had  a firm stance over the years                                                                    
that the PCE Fund was not sweepable.                                                                                            
                                                                                                                                
Senator  Hoffman  asked  how many  governors  had  made  the                                                                    
determination.                                                                                                                  
                                                                                                                                
Ms.  Curtis  had to  check  records.  She relayed  that  the                                                                    
division  did not  always confer  with LAW  and had  stopped                                                                    
asking the question  of whether the PCE Fund  was subject to                                                                    
the  sweep. She  continued that  the question  about whether                                                                    
the  PCE  Fund was  subject  to  the  sweep had  been  asked                                                                    
routinely  through FY  10, and  there  were records  through                                                                    
that time  that the executive  branch had the  position that                                                                    
the PCE Fund was not sweepable.                                                                                                 
                                                                                                                                
2:17:08 PM                                                                                                                    
                                                                                                                                
Ms. Curtis discussed  slide 15, "How the FY  18 Sweep Worked                                                                    
(Continued)":                                                                                                                   
                                                                                                                                
     ? FYE 18 sweep balance totaled $431,688,000 (rounded                                                                       
     to thousands) from 31 subfunds.                                                                                            
                                                                                                                                
     ? FYE 18 sweep posted to the financial records as of                                                                       
     June 30, 2018.                                                                                                             
                                                                                                                                
     ?  FYE 18  sweep was  reversed by  Chapter 17,  SLA 18,                                                                    
     Section 29 (a)  and effective as of July  1, 2018. This                                                                    
     means  that  the amounts  swept  were  returned to  the                                                                    
     funds effective the first day of FY 19.                                                                                    
                                                                                                                                
Ms.  Curtis addressed  slide 16,  "FYE 18  Sweep Balance  by                                                                    
General Fund Subfund," which listed  all the funds that were                                                                    
swept  and the  amounts  that  were swept  in  FY 18,  which                                                                    
totaled just over $431 million.                                                                                                 
                                                                                                                                
Ms. Curtis looked at slide  17, "FYE 18 General Fund Subfund                                                                    
- Non  Sweepable," which showed  over $880 million  in funds                                                                    
that were not swept.                                                                                                            
                                                                                                                                
Co-Chair Stedman  asked when Ms.  Curtis would  become aware                                                                    
if  there was  any  change in  the  definitions between  sub                                                                    
funds that were subject to the sweep or not.                                                                                    
                                                                                                                                
Ms. Curtis  stated that if  the division became aware  of an                                                                    
issue  by  any means,  it  would  inquire into  the  matter.                                                                    
Immediately when  staff began to  work on the  CAFR project,                                                                    
the  division  would  reach  out  to  see  what  funds  were                                                                    
intended to be swept and if the division was in agreement.                                                                      
                                                                                                                                
Co-Chair  Stedman asked  what would  happen if  the division                                                                    
was not in agreement.                                                                                                           
                                                                                                                                
Ms.  Curtis stated  that the  accountants would  ask for  an                                                                    
audit  adjustment posting,  without which  there would  be a                                                                    
misstatement in the financial statements,  which would be an                                                                    
issue in  the General Fund.  The misstatement would  have to                                                                    
do  with  Footnote  2 to  the  financial  statements,  which                                                                    
described the CBR borrowing and  the sweep and the repaying.                                                                    
Depending  up  on  the  amount,  the  misstatement  had  the                                                                    
potential to  be a material  misstatement, which  would lead                                                                    
to a qualified opinion.                                                                                                         
                                                                                                                                
Co-Chair Stedman asked Ms. Curtis  to provide an explanation                                                                    
of a qualified opinion in common language.                                                                                      
                                                                                                                                
Ms. Curtis  stated that  an auditor  provided an  opinion on                                                                    
financial statements as to whether  the statements were free                                                                    
from  material misstatement;  which  was the  purpose of  an                                                                    
audit. She disclosed that she  wrote the report. The opinion                                                                    
was included  in the CAFR each  year and was relied  upon by                                                                    
various   stakeholders   such   as   debt-rating   agencies,                                                                    
underwriters,  and  the  public  as to  whether  they  could                                                                    
depend upon the financial statements.                                                                                           
                                                                                                                                
2:20:38 PM                                                                                                                    
                                                                                                                                
Co-Chair Stedman asked  about the SBR, which was  one of the                                                                    
state's two primary savings accounts  and was subject to the                                                                    
sweep.  If  the  committee  appropriated money  out  of  the                                                                    
account, it  would be immediately recognizable  if there was                                                                    
no reverse sweep and there was a fund shortage.                                                                                 
                                                                                                                                
Ms.  Curtis  noted  that  the  list on  slide  17  was  non-                                                                    
sweepable  funds.  She  used   the  example  of  the  Higher                                                                    
Education Fund.                                                                                                                 
                                                                                                                                
Co-Chair Stedman  discussed the use of  the Higher Education                                                                    
Fund.  He  asked  how  the legislature  would  know  if  the                                                                    
definition was  changed and the fund  was considered subject                                                                    
to the sweep.                                                                                                                   
                                                                                                                                
Ms.  Curtis replied  that if  funds were  swept, the  monies                                                                    
were not  available as  of July 1.  If the  executive branch                                                                    
knew it was  sweeping the funds and there  were no available                                                                    
monies, immediate  notification of anyone with  contact with                                                                    
the  appropriation   should  be  notified.   She  referenced                                                                    
statute that stated  that DOA must certify that  there was a                                                                    
valid  appropriation  and  that  there was  a  fund  balance                                                                    
before expenditure can happen.  If the executive branch knew                                                                    
there was money  in the fund, there should  be no obligation                                                                    
to the fund.                                                                                                                    
                                                                                                                                
2:24:03 PM                                                                                                                    
                                                                                                                                
Co-Chair  Stedman asked  that if  DOA knew  a fund  would be                                                                    
swept  because of  a change  in policy,  when and  how would                                                                    
notification be provided to the legislature.                                                                                    
                                                                                                                                
Ms.  Curtis replied  that currently  the legislature  should                                                                    
know that there was no reverse  sweep for the funds swept in                                                                    
FY  18. If  the executive  branch  was going  to expand  the                                                                    
funds that  were swept, it  needed to communicate it  to the                                                                    
legislature and all agencies immediately.                                                                                       
                                                                                                                                
Co-Chair  Stedman  asked  when   the  legislature  would  be                                                                    
informed.                                                                                                                       
                                                                                                                                
Ms. Curtis  opined that there  should be an  immediate alert                                                                    
as to a change in funds that were subject to sweep.                                                                             
                                                                                                                                
Co-Chair  Stedman  asked  who  the  executive  branch  would                                                                    
notify.                                                                                                                         
                                                                                                                                
Ms.  Curtis  cited  statute  that  dictated  that  DOA  must                                                                    
certify there was  an available balance in a  fund before an                                                                    
expenditure  could happen.  She emphasized  that DOA  should                                                                    
know the information and should communicate.                                                                                    
                                                                                                                                
Co-Chair  Stedman  was  concerned that  the  committee  know                                                                    
about potential  reclassification of  funds well  in advance                                                                    
of  closing  out budgets.  He  thought  Ms. Curtis'  earlier                                                                    
comments   indicated    she   had    not   heard    of   any                                                                    
reclassification of sub-funds.                                                                                                  
                                                                                                                                
Ms. Curtis  thought Co-Chair Stedman had  valid concerns and                                                                    
had  heard  rumors on  the  subject.  She had  observed  the                                                                    
administration   re-interpreting  law   and  would   not  be                                                                    
surprised if there was re-classification of sub-funds.                                                                          
                                                                                                                                
2:28:25 PM                                                                                                                    
                                                                                                                                
Senator  Hoffman asked  if  the legislature  would  be in  a                                                                    
position  to  file  an  injunction  to  stop  a  sweep  from                                                                    
happening after  a re-classification of sub-funds.  He asked                                                                    
about legal  avenues to ensure  adherence to  past practice;                                                                    
he did  not think  the decision should  be an  arbitrary one                                                                    
made by the executive branch.                                                                                                   
                                                                                                                                
Ms.  Wallace stated  that the  Senate Finance  Committee and                                                                    
other  legislative committees  had  the  ability to  request                                                                    
that the  administration come to  the table and  provide the                                                                    
answers asked of the auditor.  The legislature held subpoena                                                                    
power  and could  compel the  administration to  produce the                                                                    
records regardless  of the accounting timeframe  of whenever                                                                    
financial   statements  were   prepared   or  reports   were                                                                    
available.  By  operation  of the  constitution,  the  sweep                                                                    
occurred on June 30.                                                                                                            
                                                                                                                                
Ms. Wallace continued to explain  that as appropriators, the                                                                    
legislature  should be  notified  immediately  if there  had                                                                    
been  change in  policy with  regard to  sweepable and  non-                                                                    
sweepable  funds.   The  more  drastic  options   of  filing                                                                    
litigation  or injunctive  relief would  be a  decision that                                                                    
was up to  the legislature, and the remedy  may be available                                                                    
if  the  legislature  received information  that  previously                                                                    
non-sweepable  funds had  been re-classified.  Not only  may                                                                    
the  legislature  be  the  appropriate   body  to  file  the                                                                    
challenge,  but it  could also  come  from outside  entities                                                                    
that were equally interested in the change in policy.                                                                           
                                                                                                                                
Co-Chair  Stedman  confirmed that  he  had  no intention  of                                                                    
submitting subpoenas to the Office  of Management and Budget                                                                    
to   explain  to   the  committee   if   funds  were   being                                                                    
reclassified  as sweepable.  He  thought there  should be  a                                                                    
more open system, and the  legislature should be notified in                                                                    
order to look at other  funding mechanisms. He stressed that                                                                    
OMB  had been  invited to  come speak  to the  committee and                                                                    
would not be subpoenaed.  He stated that reclassification of                                                                    
non-sweepable funds was of  concern, particularly the Higher                                                                    
Education Fund and the PCE  Fund, because of the significant                                                                    
financial impact to the state.                                                                                                  
                                                                                                                                
2:32:24 PM                                                                                                                    
                                                                                                                                
Senator  Hoffman   asked  how  OMB  had   responded  to  the                                                                    
committee's invitation.                                                                                                         
                                                                                                                                
Co-Chair Stedman  replied that he  had hoped that  OMB would                                                                    
be  there  later  in  the  afternoon,  but  the  office  had                                                                    
scheduling issues. He  hoped that OMB would  be in committee                                                                    
as soon  as it could  accommodate a  meeting, but he  had no                                                                    
intention of slowing down the budgetary process.                                                                                
                                                                                                                                
2:33:15 PM                                                                                                                    
AT EASE                                                                                                                         
                                                                                                                                
2:52:25 PM                                                                                                                    
RECONVENED                                                                                                                      
                                                                                                                                
Co-Chair  Stedman   apologized  for  the   interruption  and                                                                    
reminded that  there were many  moving parts in  the budget.                                                                    
He  explained that  the committee  had been  discussing non-                                                                    
sweepable  funds,   which  were  listed  on   slide  17.  He                                                                    
continued  that  the  legislature had  been  progressing  in                                                                    
putting a budget document together  with the assumption that                                                                    
the non-sweepable funds were  still non-sweepable absent any                                                                    
formal   notification.    He   revisited   the    topic   of                                                                    
notifications of  fund classification changes. He  asked Ms.                                                                    
Curtis  if she  could recall  a fund  being reclassified  as                                                                    
sweepable,  and  what  process  of  notification  she  would                                                                    
expect.                                                                                                                         
                                                                                                                                
Ms.  Curtis  did   not  recall  any  funds   that  had  been                                                                    
reclassified as sweepable. She  had looked through permanent                                                                    
files  in the  agency and  had  not seen  any indication  of                                                                    
reclassification.                                                                                                               
                                                                                                                                
Co-Chair Stedman  thought rumors  had been swirling  for the                                                                    
past month  regarding reclassification of funds.  He thought                                                                    
there was  a high  likelihood of  one or  more of  the funds                                                                    
being  reclassified,  and asked  Ms.  Curtis  to notify  the                                                                    
committee so as to make a historical note.                                                                                      
                                                                                                                                
Senator Wielechowski  asked if Ms.  Curtis was aware  of any                                                                    
notices  provided to  her or  the  public in  general as  to                                                                    
whether any of the funds on slide 17 would be swept.                                                                            
                                                                                                                                
2:55:00 PM                                                                                                                    
                                                                                                                                
Ms. Curtis was  not aware of any notices  from the executive                                                                    
branch.                                                                                                                         
                                                                                                                                
Co-Chair Stedman  thought there may be  a forthcoming public                                                                    
release  of  information,  which  would  be  a  surprise  to                                                                    
members. He was concerned  about advance notification of any                                                                    
possible fund  reclassification so the committee  could take                                                                    
rectifying action to ensure what  the legislature could fund                                                                    
what  it  had  decided  to  fund.  He  emphasized  that  the                                                                    
legislature was the appropriating body  and could not do its                                                                    
work if it was not in session.                                                                                                  
                                                                                                                                
Senator Hoffman recalled that Ms.  Curtis had testified that                                                                    
any  such  notification  should   be  immediate  before  any                                                                    
reclassification of funds took place.                                                                                           
                                                                                                                                
Ms. Curtis stated that it was her opinion.                                                                                      
                                                                                                                                
Senator Hoffman asked for Ms. Wallace's opinion.                                                                                
                                                                                                                                
Ms.  Wallace relayed  that  there was  nothing  by law  that                                                                    
dictated a timeframe for notification  but concurred that as                                                                    
a matter of practice  that notification to the appropriating                                                                    
body should be immediate.                                                                                                       
                                                                                                                                
Senator Hoffman asked who could  institute (on behalf of the                                                                    
legislature) the  action to  stop the  fund reclassification                                                                    
once the notification was given.                                                                                                
                                                                                                                                
Ms. Wallace stated that the  initiation of action would be a                                                                    
policy  decision  for  the members  of  the  legislature  to                                                                    
determine by committee or the whole body.                                                                                       
                                                                                                                                
Co-Chair  Stedman  asked  Senator   Hoffman  to  repeat  his                                                                    
question.                                                                                                                       
                                                                                                                                
Senator Hoffman  asked hypothetically  who would be  able to                                                                    
take action  to exercise the  rights of the  legislature (as                                                                    
mentioned by Ms.  Wallace) if the Higher  Education Fund was                                                                    
reclassified  as  sweepable.  He  thought  Ms.  Wallace  had                                                                    
stated  that the  committee or  the legislature  as a  whole                                                                    
could take action.                                                                                                              
                                                                                                                                
Ms. Wallace  stated that there  was a multitude of  ways the                                                                    
reclassification  could  be  challenged; whether  it  was  a                                                                    
member  or a  committee that  voted to  proceed. She  stated                                                                    
there were broad-standing rules in  the state and any member                                                                    
of the public  or citizen taxpayer could  challenge a change                                                                    
in policy decision.                                                                                                             
                                                                                                                                
Senator Hoffman  asked if the  same entities would  have the                                                                    
authority  to stop  the outright  transfer of  funds through                                                                    
injunctive relief.                                                                                                              
                                                                                                                                
Ms.  Wallace informed  that  injunctive  relief was  another                                                                    
kind of relief that was  sought from the court; and whatever                                                                    
plaintiff  were  to  potentially  initiate  litigation  with                                                                    
respect to  the reclassification  would likely  seek relief,                                                                    
otherwise  the decision  would be  under the  courts' review                                                                    
and  not be  timely  enough  to remedy  the  impacts of  not                                                                    
having the funds available in the current fiscal year.                                                                          
                                                                                                                                
3:00:19 PM                                                                                                                    
                                                                                                                                
Senator Hoffman thought there were  several members that had                                                                    
expressed  concern during  Senate floor  session earlier  in                                                                    
the  day regarding  the Higher  Education Fund  and the  PCE                                                                    
Fund.  He emphasized  the importance  of the  two funds  and                                                                    
thought  it was  crucial that  the legislature  could verify                                                                    
that there  had to  be notification of  any reclassification                                                                    
as soon  as possible. He  had heard that  the administration                                                                    
did  not plan  on  informing of  any fund  reclassifications                                                                    
until mid-August, which he felt was unacceptable.                                                                               
                                                                                                                                
Co-Chair  Stedman asked  about  the  mid-August timeline  as                                                                    
referenced by Senator  Hoffman, and if it had to  do with an                                                                    
accounting process.                                                                                                             
                                                                                                                                
Ms. Curtis relayed  that the August timeline had  to do with                                                                    
the end of the reappropriation  period. After the end of the                                                                    
fiscal year  on June  30, the  state had  two months  to pay                                                                    
bills as  invoices came  in from  the previous  fiscal year,                                                                    
and code the expenditures for  the previous fiscal year. She                                                                    
thought  the process  should have  no bearing  on whether  a                                                                    
fund would  be swept, but  that it  did have bearing  on how                                                                    
much would be swept.                                                                                                            
                                                                                                                                
Co-Chair Stedman  asked the  decision to  sweep a  fund that                                                                    
had been  historically been non-sweepable  could be  made in                                                                    
August and backtracked.                                                                                                         
                                                                                                                                
Ms. Curtis stated  that the decision to sweep a  fund or not                                                                    
had no bearing on the calendar.                                                                                                 
                                                                                                                                
Co-Chair Stedman asked if a  reclassification of funds would                                                                    
have to be made before the end of the fiscal year.                                                                              
                                                                                                                                
Ms. Curtis stated  that the decision to  reclassify funds as                                                                    
sweepable at  any time;  however, if one  was trying  to get                                                                    
legal analysis to support the  opinion early summer might be                                                                    
the timeline.                                                                                                                   
                                                                                                                                
Co-Chair Stedman  asked if the  executive branch  could make                                                                    
the  decision  to reclassify  funds  after  the end  of  the                                                                    
fiscal year.                                                                                                                    
                                                                                                                                
Ms. Curtis stated that reclassification  could be done after                                                                    
the  fact if  there  was  a reverse  sweep  in  place. If  a                                                                    
reverse sweep did not happen,  then there would be a trigger                                                                    
to inform of the decision to reclassify funds.                                                                                  
                                                                                                                                
3:04:29 PM                                                                                                                    
                                                                                                                                
Co-Chair Stedman pondered the issue  of no reverse sweep due                                                                    
to lack of a three-quarters  vote. He wondered if a decision                                                                    
to  reclassify funds  for political  purposes could  be made                                                                    
after the end of the fiscal year.                                                                                               
                                                                                                                                
Ms. Curtis thought any decision  could be made for political                                                                    
reasons  and clarified  she would  not  weigh in  on such  a                                                                    
decision.                                                                                                                       
                                                                                                                                
Senator  Wielechowski used  the  example  of the  University                                                                    
Scholarship Fund. He assumed the  funds would be distributed                                                                    
in the  following six  weeks. He  supposed the  governor had                                                                    
deemed  the  funds  were  sweepable   and  wondered  if  the                                                                    
students would have to pay the money back.                                                                                      
                                                                                                                                
Ms. Curtis  stated that  only unreserved  undesignated funds                                                                    
could  be swept.  If the  funds were  already expended,  one                                                                    
could not retrieve the funds.                                                                                                   
                                                                                                                                
Senator   Wielechowski   thought  the   executive   branch's                                                                    
argument  for   sweeping  the  funds   would  be   that  the                                                                    
constitution required  the funds  to be  swept and  that the                                                                    
funds  were unconstitutionally  paid  out  to the  students,                                                                    
therefore there would be a required payback.                                                                                    
                                                                                                                                
Ms.   Curtis  stated   that  the   amounts  unreserved   and                                                                    
undesignated as of June 30 were swept.                                                                                          
                                                                                                                                
Co-Chair  Stedman   thought  the  administration   would  be                                                                    
notified not to put out any new grants.                                                                                         
                                                                                                                                
Ms. Curtis  noted that the sweep  was not of money  that had                                                                    
been paid  out, but rather money  that would be paid  out in                                                                    
the future.                                                                                                                     
                                                                                                                                
Co-Chair Stedman thought  a sweep would stop  new funds from                                                                    
going out on July 1.                                                                                                            
                                                                                                                                
3:07:19 PM                                                                                                                    
                                                                                                                                
Co-Chair von  Imhof noted  that the  legislature was  in the                                                                    
middle of  a five-day  window for a  veto override.  She did                                                                    
not think  there was an  opportunity for consideration  of a                                                                    
reverse  sweep  because it  was  immediate.  She thought  it                                                                    
appeared that sweepable fund would  be swept as well as some                                                                    
non-sweepable  funds that  would  leave  holes and  unfunded                                                                    
programs  in the  state budget.  She questioned  whether the                                                                    
legislature could  muster a three-quarter vote  at any point                                                                    
to  force a  reverse sweep  after the  five-day period.  She                                                                    
questioned  what the  legislature's options  would be  after                                                                    
five days.                                                                                                                      
                                                                                                                                
Ms. Wallace stated that the  veto override consideration was                                                                    
separate  from   the  sweep  issues  being   discussed.  The                                                                    
legislature could  pass a reverse sweep  in an appropriation                                                                    
bill with the  approval of three-quarters of  each body. The                                                                    
legislature  could  make  the appropriation  retroactive  to                                                                    
July 1, 2019;  and the state would see  relatively no impact                                                                    
from the sweep. If  the legislature acted expeditiously, the                                                                    
act would  occur before even  the accounting sweep  on paper                                                                    
would  occur. If  the  legislature did  not  pass a  reverse                                                                    
sweep in  an appropriation bill,  and there were  funds that                                                                    
were   reclassified  as   sweepable,  at   that  point   the                                                                    
legislature  or  a  member  of   the  public  or  interested                                                                    
organization would  need to make  a decision on  whether the                                                                    
grounds articulated  by the administration  were justifiable                                                                    
or needed challenge and court intervention.                                                                                     
                                                                                                                                
3:11:25 PM                                                                                                                    
                                                                                                                                
Senator  Bishop looked  at  slide 16  and  commented on  the                                                                    
seriousness of the  issue. He wondered how  he could execute                                                                    
his mission between three divisions  if there was no reverse                                                                    
sweep. He thought the issue needed to be rectified.                                                                             
                                                                                                                                
Ms. Curtis highlighted slide 18, "Final Sweep Take-Aways":                                                                      
                                                                                                                                
     ? The first sweep occurred for FYE 1995.                                                                                   
                                                                                                                                
     ? All  amounts borrowed  from the  CBRF were  repaid by                                                                    
     the end of FY 10. The  general fund did not borrow from                                                                    
     the CBRF from FY 11  through FY 14. Borrowing commenced                                                                    
     for FY 15  and the sweep resumed for FYE  16. The sweep                                                                    
     was reversed every year until FY 20.                                                                                       
                                                                                                                                
     ? The  reverse sweep was  not approved for FY  20. This                                                                    
     means that  all funds  swept as of  June 30,  2019 will                                                                    
     remain  in the  CBRF. As  of July  1, 2019  those funds                                                                    
     will have no balance available for appropriation.                                                                          
                                                                                                                                
     ? According  to AS 37.05.170,  payment may not  be made                                                                    
     and  obligations may  not be  incurred  against a  fund                                                                    
     unless the Department  of Administration certifies that                                                                    
     its  records  disclose  that   there  is  a  sufficient                                                                    
     unencumbered balance available in  the fund. The sweep,                                                                    
     in effect,  creates a zero  available balance  in these                                                                    
     funds as of July 1, 2019.                                                                                                  
                                                                                                                                
Senator Hoffman  asked if the legislature  could take action                                                                    
and  give LLS  the authority  to file  an injunction  if the                                                                    
legislature was notified in August  that any items that were                                                                    
not sweepable were deemed sweepable by the administration.                                                                      
                                                                                                                                
Ms.  Wallace   stated  that   her  office   would  undertake                                                                    
litigation  at the  direction  of  Legislative Council.  The                                                                    
legislature,  while  in  session,   would  need  to  make  a                                                                    
decision  whether  or  not  to   pursue  litigation  in  the                                                                    
interim. There  were certain committees  that had  the power                                                                    
to sue  on behalf of the  legislature, including Legislative                                                                    
Council  and  Legislative  Budget  and Audit.  The  way  the                                                                    
legislature was to  proceed would be determined  by the time                                                                    
of year.                                                                                                                        
                                                                                                                                
Senator Hoffman  thought Ms. Wallace had  expressed that the                                                                    
legislature  would   have  to  depend  upon   the  chair  of                                                                    
Legislative  Council  to  file suit  after  the  legislature                                                                    
adjourned.                                                                                                                      
                                                                                                                                
Ms. Wallace  stated that Senator  Gary Stevens, as  chair of                                                                    
Legislative  Council, could  consider the  suit; as  well as                                                                    
the  chair of  the Legislative  Budget and  Audit Committee.                                                                    
She   clarified  that   LLS   would   need  direction   from                                                                    
Legislative Council to undertake litigation.                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                   
3:15:39 PM                                                                                                                    
                                                                                                                                
The meeting was adjourned at 3:15 p.m.                                                                                          

Document Name Date/Time Subjects
070919Leg Audit Leg Legal Presentation sweep final.pdf SFIN 7/9/2019 1:30:00 PM
2020 Capital Reverse Sweep