ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 6, 2005
1:56 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 12
"An Act relating to televisions and monitors in motor vehicles."
- HEARD AND HELD
HOUSE BILL NO. 33
"An Act relating to the effect of regulations on small
businesses; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 205
"An Act relating to review of proposed regulatory actions and
regulations, fiscal effect of proposed regulatory actions, and
suspension of regulations."
- HEARD AND HELD
HOUSE BILL NO. 94
"An Act relating to qualifications of voters, requirements and
procedures regarding independent candidates for President and
Vice-President of the United States, voter registration and
voter registration records, voter registration through a power
of attorney, voter registration using scanned documents, voter
residence, precinct boundary and polling place designation and
modification, recognized political parties, voters unaffiliated
with a political party, early voting, absentee voting,
application for absentee ballots through a power of attorney, or
by scanned documents, ballot design, ballot counting, voting by
mail, voting machines, vote tally systems, initiative,
referendum, recall, and definitions in the Alaska Election Code;
relating to incorporation elections; and providing for an
effective date."
- HEARD AND HELD
CS FOR SENATE BILL NO. 105(L&C)
"An Act relating to the retrospective application and
applicability of the overtime compensation exemption for flight
crew members; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 183
"An Act relating to the use of campaign contributions for shared
campaign activity expenses and to reimbursement of those
expenses."
- BILL HEARING POSTPONED
CS FOR SENATE BILL NO. 36(JUD)
"An Act relating to absentee ballots."
- BILL HEARING POSTPONED
HOUSE BILL NO. 150
"An Act requiring licensure of occupations relating to
radiologic technology, radiation therapy, and nuclear medicine
technology; and providing for an effective date."
- BILL HEARING POSTPONED
HOUSE BILL NO. 152
"An Act amending the definition of the term 'state agencies' as
it presently applies to the provisions of law that establish the
Telecommunications Information Council and as it applies under
Executive Order No. 113; relating to information systems in the
legislative branch and to the Telecommunications Information
Council; and providing for an effective date."
- BILL HEARING POSTPONED
PREVIOUS COMMITTEE ACTION
BILL: HB 12
SHORT TITLE: TVS AND MONITORS IN MOTOR VEHICLES
SPONSOR(S): REPRESENTATIVE(S) GRUENBERG, LYNN, GARDNER, MCGUIRE
01/10/05 (H) PREFILE RELEASED 12/30/04
01/10/05 (H) READ THE FIRST TIME - REFERRALS
01/10/05 (H) STA, JUD, FIN
03/01/05 (H) STA AT 8:00 AM CAPITOL 106
03/01/05 (H) Scheduled But Not Heard
03/05/05 (H) STA AT 9:30 AM CAPITOL 106
03/05/05 (H) Heard & Held
03/05/05 (H) MINUTE(STA)
03/17/05 (H) STA AT 8:00 AM CAPITOL 106
03/17/05 (H) Moved CSHB 12(STA) Out of Committee
03/17/05 (H) MINUTE(STA)
03/18/05 (H) STA RPT CS(STA) NT 6DP
03/18/05 (H) DP: GARDNER, LYNN, GATTO, GRUENBERG,
ELKINS, SEATON
04/01/05 (H) JUD AT 1:00 PM CAPITOL 120
04/01/05 (H) Heard & Held
04/01/05 (H) MINUTE(JUD)
04/04/05 (H) JUD AT 1:00 PM CAPITOL 120
04/04/05 (H) -- Meeting Canceled --
04/06/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 33
SHORT TITLE: EFFECT OF REGULATIONS ON SMALL BUSINESSES
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/10/05 (H) PREFILE RELEASED 12/30/04
01/10/05 (H) READ THE FIRST TIME - REFERRALS
01/10/05 (H) L&C, JUD
02/16/05 (H) L&C AT 3:15 PM CAPITOL 17
02/16/05 (H) Heard & Held
02/16/05 (H) MINUTE(L&C)
03/04/05 (H) L&C AT 3:15 PM CAPITOL 17
03/04/05 (H) Heard & Held
03/04/05 (H) MINUTE(L&C)
03/16/05 (H) L&C AT 3:15 PM CAPITOL 17
03/16/05 (H) Moved CSHB 33(L&C) Out of Committee
03/16/05 (H) MINUTE(L&C)
03/17/05 (H) L&C RPT CS(L&C) NT 2DP 5NR
03/17/05 (H) DP: ROKEBERG, ANDERSON;
03/17/05 (H) NR: CRAWFORD, LYNN, KOTT, LEDOUX,
GUTTENBERG
03/18/05 (H) FIN REFERRAL ADDED AFTER JUD
04/04/05 (H) JUD AT 1:00 PM CAPITOL 120
04/04/05 (H) -- Meeting Canceled --
04/06/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 205
SHORT TITLE: REVIEW AND SUSPENSION OF REGULATIONS
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
03/07/05 (H) READ THE FIRST TIME - REFERRALS
03/07/05 (H) JUD, FIN
04/04/05 (H) JUD AT 1:00 PM CAPITOL 120
04/04/05 (H) -- Meeting Canceled --
04/06/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 94
SHORT TITLE: ELECTIONS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) STA, JUD, FIN
02/03/05 (H) STA AT 8:00 AM CAPITOL 106
02/03/05 (H) Heard & Held
02/03/05 (H) MINUTE(STA)
02/08/05 (H) STA AT 8:00 AM CAPITOL 106
02/08/05 (H) Heard & Held
02/08/05 (H) MINUTE(STA)
02/10/05 (H) STA AT 8:00 AM CAPITOL 106
02/10/05 (H) Heard & Held
02/10/05 (H) MINUTE(STA)
02/17/05 (H) STA AT 8:00 AM CAPITOL 106
02/17/05 (H) Heard & Held
02/17/05 (H) MINUTE(STA)
02/19/05 (H) STA AT 10:00 AM CAPITOL 106
02/19/05 (H) Bill Hearing Canceled
03/08/05 (H) STA AT 8:00 AM CAPITOL 106
03/08/05 (H) Heard & Held
03/08/05 (H) MINUTE(STA)
03/15/05 (H) STA AT 8:00 AM CAPITOL 106
03/15/05 (H) Moved CSHB 94(STA) Out of Committee
03/15/05 (H) MINUTE(STA)
03/18/05 (H) STA RPT CS(STA) NT 3DP 2NR
03/18/05 (H) DP: GATTO, GRUENBERG, SEATON;
03/18/05 (H) NR: GARDNER, LYNN
03/21/05 (H) JUD AT 1:00 PM CAPITOL 120
03/21/05 (H) Heard & Held
03/21/05 (H) MINUTE(JUD)
04/01/05 (H) JUD AT 1:00 PM CAPITOL 120
04/01/05 (H) Scheduled But Not Heard
04/04/05 (H) JUD AT 1:00 PM CAPITOL 120
04/04/05 (H) -- Meeting Canceled --
04/06/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 105
SHORT TITLE: OVERTIME WAGES FOR FLIGHT CREW
SPONSOR(S): SENATOR(S) SEEKINS
02/14/05 (S) READ THE FIRST TIME - REFERRALS
02/14/05 (S) L&C, JUD
02/22/05 (S) L&C AT 1:30 PM BELTZ 211
02/22/05 (S) Heard & Held
02/22/05 (S) MINUTE(L&C)
03/01/05 (S) L&C AT 1:30 PM BELTZ 211
03/01/05 (S) Moved CSSB 105(L&C) Out of Committee
03/01/05 (S) MINUTE(L&C)
03/02/05 (S) L&C RPT CS 3DP 1AM SAME TITLE
03/02/05 (S) DP: BUNDE, SEEKINS, STEVENS B
03/02/05 (S) AM: ELLIS
03/09/05 (S) JUD AT 8:30 AM BUTROVICH 205
03/09/05 (S) Moved CSSB 105(L&C) Out of Committee
03/09/05 (S) MINUTE(JUD)
03/09/05 (S) JUD RPT CS(L&C) 2DP 2NR
03/09/05 (S) DP: SEEKINS, HUGGINS
03/09/05 (S) NR: FRENCH, GUESS
03/18/05 (S) TRANSMITTED TO (H)
03/18/05 (S) VERSION: CSSB 105(L&C)
03/21/05 (H) READ THE FIRST TIME - REFERRALS
03/21/05 (H) JUD
04/06/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 12, testified in
support, provided comments, and responded to questions.
TODD SHARP, Lieutenant
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 12.
DOUGLAS JOHNSON, Senior Director
Technology Policy
Consumer Electronics Association (CEA)
Arlington, Virginia
POSITION STATEMENT: Provided comments during discussion of HB
12 and responded to questions.
MICHAEL PAWLOWSKI, Staff
to Representative Kevin Meyer
House Finance Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 33 on behalf of the sponsor,
Representative Meyer.
CHRISTOPHER KENNEDY, Senior Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
33 and responded to a question; provided comments during
discussion of HB 205.
JIM POUND, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 205 on behalf of the sponsor,
Representative Ramras.
RANDY RUEDRICH, Chair
Alaskan Republican Party
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
94.
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking as chair of the House State
Affairs Standing Committee, provided comments during discussion
of HB 94, and suggested changes to one of the bill's proposed
amendments.
NINA MOLLETT
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
94.
JIM SYKES
Palmer, Alaska
POSITION STATEMENT: Provided comments and suggested a change
during discussion of HB 94.
REPRESENTATIVE MARY KAPSNER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
105.
REPRESENTATIVE MIKE KELLY
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
105.
SENATOR RALPH SEEKINS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 105.
THOMAS M. DANIEL, Attorney at Law
Perkins Coie, LLP
Anchorage, Alaska
POSITION STATEMENT: As an attorney in the law firm representing
Hageland Aviation Services, Inc., testified in support of SB 105
and responded to questions.
BRUCE McGLASSON, Owner/President
Grant Aviation, Inc.
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
105.
MICHAEL HAGELAND, Owner
Hageland Aviation Services, Inc.
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding the lawsuit
against Hageland Aviation Services, Inc., during discussion of
SB 105.
RICHARD CLARK, Pilot
Hageland Aviation Services, Inc.
Wasilla, Alaska
POSITION STATEMENT: Answered questions regarding the lawsuit
against Hageland Aviation Services, Inc., during discussion of
SB 105.
IGNATIUS BEANS, JR., Safety Check Pilot
Hageland Aviation Services, Inc.
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 105.
PETER C. NOSEK, Attorney at Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding the lawsuit
against Hageland Aviation Services, Inc., on behalf of the
plaintiffs.
MIKE BERGT, General Manager
Alaska Central Express, Inc.(ACE)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 105.
GRANT THOMPSON, President
Cape Smyth Air Service
Barrow, Alaska
POSITION STATEMENT: Testified in support of SB 105.
TOM NICOLOS
Cape Smythe Air Service
Barrow, Alaska
POSITION STATEMENT: Testified in support of SB 105.
MARK JOHNSON, Pilot
Hageland Aviation Service, Inc.
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
105.
MICHAEL CHARLIE, Pilot
Hageland Aviation Service, Inc.
Tununak, Alaska
POSITION STATEMENT: Testified in support of SB 105 and provided
comments.
KAREN CASANOVAS, Executive Director
Alaska Air Carriers Association (AACA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 105.
GREY MITCHELL, Director
Central Office
Division of Labor Standards & Safety
Department of Labor & Workforce Development (DLWD)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 105.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:56:49 PM. Representatives
McGuire, Coghill, Gruenberg, and Gara were present at the call
to order. Representatives Anderson, Kott, and Dahlstrom arrived
as the meeting was in progress.
HB 12 - TVS AND MONITORS IN MOTOR VEHICLES
1:57:34 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 12, "An Act relating to televisions and
monitors in motor vehicles." [Before the committee was CSHB
12(STA).]
REPRESENTATIVE GRUENBERG, speaking as one of the prime sponsors,
referred to the proposed committee substitute (CS) for HB 12,
Version 24-LS0058\X, Luckhaupt, 4/5/05, which contained a
handwritten alteration to page 1, line 11 - changing "a" to
"the". He indicated that the Department of Law (DOL) has also
suggested that Version X be altered such that what is currently
subsection (a)(2) becomes subsection (a)(1), and what is
currently subsection (a)(1) becomes subsection (a)(2).
REPRESENTATIVE GRUENBERG made a motion to adopt Version X with
both the handwritten alteration and the change suggested by the
DOL as the work draft. There being no objection, Version X, as
amended, was before the committee.
REPRESENTATIVE GRUENBERG indicated that Version X, as amended,
incorporates some suggestions made by the DOL and various other
parties, and that some suggested changes were not made to
Version X because the drafter has assured him that such changes
are not necessary, either because of language already in Version
X or because of language currently in statute.
1:59:31 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that the DOL worked extensively with the sponsor with the goal
of clarifying the language such that it conforms to Alaska's
drafting style, and removing unnecessary language. She noted
that with the DOL's aforementioned suggested change incorporated
into Version X, as amended, a conforming change must also be
made to page 1, line 13.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1,
changing "(a)(1)" to "(a)(2)" on page 1, line 13. There being
no objection, Amendment 1 was adopted.
MS. CARPENETI said that the DOL supports [the bill].
REPRESENTATIVE GRUENBERG noted that it can be very difficult to
determine whether the driver of a vehicle is actually watching
an entertainment system while car is being driven; for this
reason, the bill applies if the entertainment system can be
viewed by the driver, the entertainment system is on, and the
car is being driven. He offered his understanding that the
penalties proposed in the bill track current penalties for a
number of existing crimes.
MS. CARPENETI added that watching a video while operating a
motor vehicle would be considered reckless conduct - knowing a
risk exists and disregarding it. Such behavior, if it causes
the death of another person, would be a class A felony under the
bill; this corresponds to the crime of manslaughter, which she
characterized as a reckless killing that is also a class A
felony. She said that the other penalties provided for in the
bill track the homicide statutes in Title 11. For example the
aforementioned behavior, if it causes serious physical injury to
another person, would be a class B felony, just like the crime
of assault in the second degree.
REPRESENTATIVE DAHLSTROM asked whether the issue of passengers
watching a video while the vehicle is being operated has been
raised.
REPRESENTATIVE GRUENBERG reiterated that the bill only
criminalizes the behavior of the driver if an entertainment
system is in use while the vehicle is being operated and the
entertainment system is visible to the driver.
REPRESENTATIVE ANDERSON said he hopes that the equipment the
bill applies to would not include either a cell phone or a
stereo system that is operated by a touch screen.
REPRESENTATIVE GRUENBERG noted that Version X, as amended, has
an effective date of September 1, 2005. He mentioned that
Representative Seaton had also expressed a concern that the bill
would apply to cell phones containing a small video screen. He
offered his belief that as currently drafted, the bill would
apply to such devices, but said he would accept a change adding
an exception for that type of technology.
2:06:15 PM
REPRESENTATIVE GARA suggested that Representative Anderson's
concern could be addressed by adding the word "entertainment" to
page 1, line 9, after "visual" and before "display", and then
defining "visual entertainment display" to include such things
as movies, TV shows, and games.
REPRESENTATIVE GRUENBERG said he would be happy to incorporate
such a change into the bill.
REPRESENTATIVE ANDERSON suggested adding "stereo system
[information]" to the list of items exempted via subsection (c).
CHAIR McGUIRE, speaking as one of the prime sponsors, said she
didn't want such an exemption to apply to stereo equipment that
is capable of displaying an artist's performance.
MS. CARPENETI suggested adding cell phones and "audio" systems
to the list of exemptions in subsection (c).
REPRESENTATIVE GRUENBERG indicated a willingness to have
members' concerns addressed via language he would incorporate
into a new CS that could be brought to the committee at a future
date.
2:10:27 PM
REPRESENTATIVE GRUENBERG, in response to comments, again
reiterated that the penalty proposed in the bill applies if the
entertainment system can be viewed by the driver, the
entertainment system is on, and the driver is operating the
vehicle. He said he does not want to have to prove that a
driver was actually watching an entertainment system while
driving because that will be and has been difficult to prove.
CHAIR McGUIRE concurred, and noted that a person will always
deny watching an entertainment system while driving; therefore,
they would be right back where they started if the bill only
criminalizes the actual watching of an entertainment system
while driving. She expressed a preference for deterring the
behavior of having an entertainment system installed so that it
is viewable by the driver of a vehicle. She suggested simply
flushing out the exemptions regarding cell phones and audio
systems that don't have a video component.
2:14:26 PM
TODD SHARP, Lieutenant, Division of Alaska State Troopers,
Department of Public Safety (DPS), said simply that the dangers
of inattentive driving are obvious, that the DPS supports [HB
12], and that the problems associated with drivers of vehicles
watching entertainment systems while driving need to be
addressed.
2:15:19 PM
DOUGLAS JOHNSON, Senior Director, Technology Policy, Consumer
Electronics Association (CEA), expressed appreciation for the
work done to date on the bill, and said his organization's main
interest is in seeing consistency with the approaches other
states are taking towards this issue. So although Version X is
getting close to being satisfactory to the CEA, there is a
concern regarding what types of equipment the bill would apply
to. He mentioned that the CEA had offered model legislation to
the House State Affairs Standing Committee; that model
legislation focuses broadly on video displays that produce
entertainment or business applications. Because technology is
always changing, as soon as legislation specifies particular
products, there will inevitably be more products to add to those
lists. He said the CEA would be happy to work with the
committee and offer suggestions for changes to the provision
listing the equipment that the bill would apply to.
REPRESENTATIVE GRUENBERG noted that members' packets include the
letter from Mr. Johnson that contains the aforementioned model
legislation language, and indicated that he would be meeting
with Mr. Johnson later.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 12.
2:18:15 PM
REPRESENTATIVE KOTT pointed out that many recreational vehicles
(RVs) have television monitors placed such that the driver of
the RV can view it simply by turning his/her head. He suggested
that the bill would apply to such vehicles and thus could be a
problem, particularly for those with RVs that already have
televisions installed in that position.
MR. JOHNSON, in response to a question, offered his
understanding that some states have included exemptions for RVs
in their legislation.
REPRESENTATIVE GRUENBERG asked Mr. Johnson to research that
issue further.
MR. JOHNSON said he would do so.
REPRESENTATIVE GARA suggested that perhaps the bill should
stipulate that a video display monitor must be behind the
driver.
REPRESENTATIVE GRUENBERG agreed to consider such language,
which, he noted, was contained in the model legislation.
[HB 12, Version X, as amended, was held over.]
HB 33 - EFFECT OF REGULATIONS ON SMALL BUSINESSES
2:21:35 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 33 "An Act relating to the effect of regulations
on small businesses; and providing for an effective date."
[Before the committee was CSHB 33(L&C).]
MICHAEL PAWLOWSKI, Staff to Representative Kevin Meyer, House
Finance Committee, Alaska State Legislature, sponsor, relayed on
behalf of Representative Meyer that the federal Regulatory
Flexibility Act was passed in 1980 and requires agencies to
consider the impacts and costs to small businesses when drafting
regulations. He said [the Act] does not predetermine an
outcome, but brings an awareness of the interests of small
businesses into the process, and allows interested parties to
sue if agencies don't follow the Act. The federal
administration has estimated that the Act has saved small
businesses over $17 billion, he said, because "just filling out
a few less forms, following a few less of the restrictions that
are put on business has saved business money." This cost
savings allows businesses to invest in jobs, people, and growth.
MR. PAWLOWSKI said that 37 states have adopted a similar law.
The model legislation may not fit Alaska, however, since it
shouldn't get in the way of resource development by slowing down
the permitting processes, he explained, and mentioned that the
House Labor and Commerce Standing Committee addressed the issue
of judicial review. He characterized HB 33 as a better step in
the process of forming an Alaskan regulatory flexibility Act.
2:25:01 PM
REPRESENTATIVE GARA asked about the cost of the studies required
under the bill.
MR. PAWLOWSKI acknowledged that there is a fiscal note, but
offered his belief that it applies more to the original bill
than to the version before the committee, because CSHB 33(L&C)
now relaxes those requirements to a "general description." He
posited that Alaskans are used to environmental impact
statements, and that economic effect statements ought to be
reviews of similar depth. He mentioned that CSHB 33(L&C)
addresses this issue by softening the language and taking out
judicial reviews, he said.
REPRESENTATIVE GARA said his concern is that the studies will be
costly and will delay the promulgation of regulations, because
they must include a general description and estimate of the
numbers of the affected businesses, and such will be hard to
determine unless "you shoot from the hip."
MR. PAWLOWSKI said the costs have not been high for other states
with similar laws, and noted that the definition of a small
business will be based solely on the number of employees, and
the Department of Labor & Workforce Development keeps accurate
statistics of such that are available on line. With regard to
the analysis of probable economic effect, he agreed that there
is a chance that the process will be slowed down. The question
then becomes whether the investment of time is warranted
compared to the cost of going back and redoing regulations. The
approach of regulators is limited by their mission statement,
and so adding a little information ahead of time helps them do
it right the first time, he opined.
REPRESENTATIVE GARA said one of his concerns is that the
government must be "flexible enough to come up with regulations
that achieve the purposes of the statute that they are
implementing in the most cost effective, fairest way." He said
he is worried the bill will encourage agencies to shortcut the
purposes of a statute, for example, like one that protects
people from pesticides. He suggested adding language to ensure
that the objectives of statutes are not compromised.
MR. PAWLOWSKI said it seems clear enough that the bill is not
intended to compromise statutes and that agencies have to meet
the objectives of the statutes. The language requires
regulators to be consistent with the health, safety, and welfare
of the state, he concluded.
REPRESENTATIVE GARA argued that clarifying the bill further
would ensure that an agency also has the duty to implement the
statute as the statute reads.
CHAIR McGUIRE suggested that Mr. Pawlowski take that comment
back to the sponsor. She opined that more often than not, the
regulations undermine the objectives of the statutes.
2:35:51 PM
CHRISTOPHER KENNEDY, Senior Assistant Attorney General,
Environmental Section, Civil Division (Anchorage), Department of
Law (DOL), said Governor Murkowski strongly supports small
businesses and feels it is important to safeguard against
regulatory requirements that put unjustified or onerous burdens
on small business. He added that the administration is very
close to an agreement with the sponsor in developing legislation
that the governor can support. He said the main areas under
discussion are those of determining which kinds of regulations
should be subject to this procedure, and of creating a shorter
list of agencies that would fall under the legislation. Most
labor, commerce, health and social services, and environmental
health regulations would be covered, but the governor wants to
exclude resource development regulations.
REPRESENTATIVE GRUENBERG asked why the bill doesn't also apply
to proposed legislation.
MR. PAWLOWSKI said that the legislative process allows for
deliberation. The concern isn't with regard to elected
officials but instead with regard to appointed officials or
bureaucrats who have to make decisions without the benefit of
being elected and being in touch with their constituencies.
Similarly, regulations promulgated by boards and commissions
have also been removed from this bill, he said.
CHAIR McGUIRE concurred that the regulatory process doesn't have
the same opportunities for the public to weigh in at as does the
legislative process. She surmised that the goal [of the bill]
is to interject more analysis at the regulatory phase. One
other major distinction is that legislators can be voted out of
office, but it is difficult to track down a regulation writer,
she added.
REPRESENTATIVE GRUENBERG said exempting natural resource laws
may permit large companies to have regulations promulgated to
drive out smaller companies. The state's gas pipeline project
may have various-sized players, he noted, for example, and said
he has been thinking about the legislature's negative impacts on
municipalities. He suggested that HB 33 include consideration
of the impacts on small municipalities and people in general.
2:44:38 PM
REPRESENTATIVE GARA asked Mr. Kennedy whether adding the phrase,
"and not compromising" would be workable.
MR. KENNEDY indicated that he's not yet had time to consider
that but his initial instinct is that the bill already fits that
goal. The intent was never to compromise current or future
statutes, he said.
REPRESENTATIVE GARA said he still has that concern. The
language should be put in the statute so people don't have to
fight over what the legislative history meant, he opined, adding
that another concern of his is that by ensuring that the
legislation doesn't apply to the Department of Natural Resources
(DNR) because of a desire to not slow that agency down, it
suggests that requiring studies does slow down the regulatory
process, and will do so for every other agency.
MR. PAWLOWSKI said:
I think actually the concern on the resource
development side is more that objections to resource
development in Alaska tend to find whatever crack,
crevice, or hole they can slip into to stop, stall, or
get in the way of any project. [By] adding even a
tiny crevice, even with explicit judicial review taken
out of the bill, the concern is always that that can
be manipulated at a higher level to file a challenge
to halt the permit.
REPRESENTATIVE GRUENBERG suggested that the language in the bill
should be drafted more carefully.
CHAIR McGUIRE indicated that CSHB 33(L&C) would be held over.
HB 205 - REVIEW AND SUSPENSION OF REGULATIONS
2:51:04 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 205, "An Act relating to review of proposed
regulatory actions and regulations, fiscal effect of proposed
regulatory actions, and suspension of regulations."
REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee
substitute (CS) for HB 205, Version 24-LS0696\F, Cook, 4/4/05,
as the work draft. There being no objection, Version F was
before the committee.
JIM POUND, Staff to Representative Jay Ramras, Alaska State
Legislature, sponsor, said on behalf of Representative Ramras
that HB 205 will bring accountability to all the laws that are
being passed in the state of Alaska. He elaborated:
Each year, the legislature labors to pass legislation
that is good for the state and its people. But when
most of us, and the people, aren't looking, a group of
administration workers turn around to administer those
statutes by interpreting the language to what best
fits their needs. This interpretation process
sometimes varies from the statutory language and, in a
worst-case scenario, conflicts with that legislative
intent. Once this process begins, the public and
those affected by the proposed regulations have very
limited ability to stop them; no elected public
official has any real say over the regulation process.
These regulations have the effect of law unless
someone is ... able to convince a court to overrule
them.
[House Bill 205] puts regulation writers on notice
that the [Joint Committee on Administrative Regulation
Review] will be watching and may, at a very minimum,
slow the process down. By a vote of the legislature a
[regulation] ... could be annulled. ... [The
legislature] has the constitutional right to write
laws, not some nameless, unelected and unaccountable
state employee who may have a personal agenda. [House
Bill 205] also requires that the public know what the
costs are of a regulation, not only for state
government but for the public as well, and, in
response to Representative Gruenberg, I would suggest
municipalities.
At ... first I thought that this bill should have a
huge fiscal note, but in reality, since I've looked at
the amount of additional work that this language would
require over what is [currently] being done, I cannot
believe that they can come up with a much larger
fiscal note than the zero [fiscal note] they've been
showing us over the last many years [for the
promulgation] of regulations. I would urge your
support of House Bill 205, and I'd be glad to answer
any questions.
2:53:57 PM
MR. POUND, in response to a question, said that [under the
bill], a majority of the members of the Joint Committee on
Administrative Regulation Review can suspend the implementation
of a regulation until adjournment of a regular legislative
session unless the legislature meanwhile passes a bill that
annuls or invalidates the regulation - if the latter is not
done, then the regulation is allowed to go into effect upon
adjournment of the regular session.
REPRESENTATIVE GRUENBERG asked for a copy of the March 19, 2002,
memorandum referenced in a Joint Committee on Administrative
Regulation Review memorandum dated May 1, 2002. He also asked
whether the bill would allow the legislature to affect
regulations without a statutory change.
MR. POUND said that prior to the State v. A.L.I.V.E. Voluntary,
606 P.2d 769 (Alaska 1980), the legislature had the authority to
annul a regulation via a concurrent resolution adopted by a vote
of both houses. However, the A.L.I.V.E. decision determined
that doing so was unconstitutional under the separation of
powers doctrine; further, the court said that in order for the
legislature to annul a regulation, it had to be done via
statute, which is what is being proposed via HB 205. With
regard to the aforementioned referenced memorandum, he said that
he'd been unable to locate it, and so members' packets only have
the Joint Committee on Administrative Regulation Review's
response dated May 1, 2002, which he said merely addresses an
example wherein a department, in writing regulations, ignored
both the public and the legislature's intent with regard to
correspondence schools.
REPRESENTATIVE GARA said he questions whether it is
constitutional for a few members - in this case, simply a
majority of the members of the Joint Committee on Administrative
Regulation Review - to [annul] a regulation. He asked whether a
legal [opinion] on that issue is available.
MR. POUND indicated that he did not have such an [opinion], and
reiterated that the Joint Committee on Administrative Regulation
Review by itself would not be [annulling] a regulation; instead,
it would just be delaying a process that can already, of its own
accord, take up to as long as a year to complete. He also
mentioned that under the bill, should the Joint Committee on
Administrative Regulation Review do nothing with regard to a
regulation, it would become law as a matter of course.
CHAIR McGUIRE noted that a legal opinion on this issue could be
requested and would be helpful. She offered her recollection
that some states have ruled opposite of the decision rendered in
the A.L.I.V.E. case; thus, in those states, a simple resolution
can be introduced to repeal a regulation without presentment to
the governor. She offered her understanding that some other
states have a "blanket sunset" on regulations, ranging from five
to ten years, that forces the legislature to look at those
regulations and decide whether they should be renewed. Also,
some states have a committee similar to the Joint Committee on
Administrative Regulation Review, and the powers of those
committees vary; some have subpoena powers, some have the
ability to question people when reviewing regulations, and very
few are as "neutered" as Alaska's Joint Committee on
Administrative Regulation Review. Compared to other states,
Alaska has the most power invested, via its constitution, in its
executive branch and the least ability by the legislature to
impact regulations, particularly in light of the A.L.I.V.E.
decision.
REPRESENTATIVE GARA suggested that the question is whether a
committee can temporarily invalidate regulations given that it
can't permanently invalidate them. He concurred that a legal
opinion on this issue would be helpful.
3:03:40 PM
CHRISTOPHER KENNEDY, Senior Assistant Attorney General,
Environmental Section, Civil Division (Anchorage), Department of
Law (DOL), opined that the Joint Committee on Administrative
Regulation Review serves the important function of looking at
regulations and determining whether they "go over the line"; if
regulations are found to go over the line, the Joint Committee
on Administrative Regulation Review can bring this fact to the
legislature as a whole. Noting that HB 205 proposes in part to
alter AS 24.20.445 - which pertains to the suspension of
regulations - he relayed that Legislative Legal and Research
Services has said, in part, in a memorandum dated January 17,
2001 [original punctuation provided]:
AS 24.20.445 permits the Administrative Regulation
Review Committee to suspend the effectiveness of the
adoption of a regulation when the legislature is not
in session. In discussing the constitutionality of AS
44.62.320(a), the court in A.L.I.V.E. mentioned the
power of the committee to suspend, under AS 24.20.445,
the operation of a regulation. While not specifically
ruling AS 24.20.445 unconstitutional, it suggested
that because of the primary holding that he
legislature may affect a regulation only by law, it
may not delegate to a committee the power to affect a
regulation by any other method. Nor, indeed, may the
legislature delegate its law-making power to a
committee. ... Thus the effect of the A.L.I.V.E. case
is to strike down the Committee's power under AS
24.20.445.
MR. KENNEDY said the DOL agrees with Legislative Legal and
Research Services that the whole underlying authority of AS
24.20.445 is now inoperative. Therefore, he opined, Sections 1-
5 of HB 205 merely "rearrange the deck chairs on the Titanic
after the Titanic is already resting on the ocean floor," and so
the administration doesn't see any benefit to those provisions
of the bill.
REPRESENTATIVE GRUENBERG said he cannot see "this" surviving a
constitutional challenge.
MR. POUND opined that the average person doesn't understand
regulations until they affect him/her, that [during the public
hearing process] the language in proposed regulations makes no
sense to the average person. He relayed that when he was the
aide for the Joint Committee on Administrative Regulation
Review, most attorneys and members of the public that he'd
spoken with indicated that they hadn't read their newspapers'
public notices regarding proposed regulations. He opined that
departments often simply ignore the public comments offered
during the public hearing process. Then once regulations are
established, departments can modify them without any further
input from the public; also, according to an attorney general's
opinion, the Lieutenant Governor's role in the promulgation of
regulations is then merely administrative and mandatory.
REPRESENTATIVE GRUENBERG said he can sympathize with Mr. Pound,
but that won't change the constitution. In response to a
comment, he mentioned that one could attempt to get the court to
overturn the A.L.I.V.E. decision.
3:09:43 PM
REPRESENTATIVE GRUENBERG suggested that there may be
constitutional ways of dealing with the perceived problem,
which, he surmised, is that some agencies are out of control
with regard to the way they are interpreting statute and then
promulgating regulations based on those interpretations.
Assuming that that is correct in some cases, he added, why not
try to find a constitutional fix. For example, the legislature
could pass a law that says regulations are not effective until
they are submitted to the Joint Committee on Administrative
Regulation Review and a certain amount of time has elapsed; such
would give the legislature time to act. He offered his belief
that there are ways of solving the problem, but that HB 205 is
not one of them.
CHAIR McGUIRE offered her belief that the legislature needs to
continue attempting to find a solution to the problem, that of
unelected individuals in government promulgating regulations
based on their interpretation - sometimes rightly, sometimes
wrongly - of statutory language. She mentioned the Department
of Health and Social Services (DHSS) as an example of a
department that has tremendous power to promulgate a wide range
of regulations. Noting that not even the lieutenant governor
has the power to do something about regulations once they've
gone through the process, she opined that the current process
does not work.
3:14:13 PM
REPRESENTATIVE GRUENBERG suggested that they hold the bill for
use as a vehicle and have the Joint Committee on Administrative
Regulation Review and the House State Affairs Standing Committee
work on the issue during the interim, and reiterated his belief
that the bill as currently written won't solve the problem.
CHAIR McGUIRE asked Mr. Pound to pass that suggestion on to the
sponsor. She also suggested that the sponsor research what
other states do, and referred to information compiled in the
past by Legislative Legal and Research Services on this issue.
REPRESENTATIVE GRUENBERG opined that HB 205 should have been
referred to the House State Affairs Standing Committee.
REPRESENTATIVE ANDERSON, speaking as the current chair of the
Joint Committee on Administrative Regulation Review, suggested
that it would be a good idea to work with the National
Conference of State Legislatures (NCSL) on this issue.
3:17:08 PM
REPRESENTATIVE KOTT mentioned that most legislation that results
in regulations starts out as an individual's bill, and that he
has suggested to members that they follow their legislation all
the way through the regulation-making process to ensure that
unintended issues are not swept into the resulting regulations.
He mentioned an example of one of his bills for which
regulations were created that did not conform to his intent.
CHAIR McGUIRE mentioned the "aquatic farm" Act as another
example.
REPRESENTATIVE COGHILL noted that sometimes the legislature is
at fault simply because it has added to a bill language
authorizing a department to promulgate regulations. So although
the legislature might have delegated that authority in a given
situation, it might be in order to review the delegation of that
authority. He opined that the legislature should be very
careful in how it delegates its authority.
3:20:31 PM
CHAIR McGUIRE noted that the dissenting opinion in the
A.L.I.V.E. case questioned why the legislature should not be
able to affect a regulation given that it authorized its
creation to begin with.
REPRESENTATIVE GARA, too, noted that sometimes bills will say
something general but will then also give a department the
authority to create regulations. He characterized the creation
of such language as doing a disservice because there is the risk
that a department will create regulations with unintended
consequences. Bills, he opined, should specifically tell
departments what the legislature wants done, rather than giving
them leeway.
REPRESENTATIVE GRUENBERG, referring to Chair McGuire's comment
regarding the dissenting opinion in the A.L.I.V.E. decision,
clarified that the legislature does have the authority to affect
regulations, but it must do so in the same manner in which the
authority to promulgate those regulations was given - in other
words, through statute.
CHAIR McGUIRE concurred.
[HB 205, Version F, was held over.]
HB 94 - ELECTIONS
3:22:32 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 94, "An Act relating to qualifications of voters,
requirements and procedures regarding independent candidates for
President and Vice-President of the United States, voter
registration and voter registration records, voter registration
through a power of attorney, voter registration using scanned
documents, voter residence, precinct boundary and polling place
designation and modification, recognized political parties,
voters unaffiliated with a political party, early voting,
absentee voting, application for absentee ballots through a
power of attorney, or by scanned documents, ballot design,
ballot counting, voting by mail, voting machines, vote tally
systems, initiative, referendum, recall, and definitions in the
Alaska Election Code; relating to incorporation elections; and
providing for an effective date." [Before the committee was
CSHB 94(STA), which had been amended on 3/21/05.]
3:23:55 PM
RANDY RUEDRICH, Chair, Alaskan Republican Party, said the
state's [AccuVote-Optical Scan] is extremely accurate at
counting ballots that are properly prepared, though incomplete
ballots are rejected. Recounts requested by the Alaskan
Republican Party have only changed about 1 vote per 10,000, he
said, and opined that because Alaska's standards are 50 times
more lenient [than other states], if someone requests a special
recount, that person or entity should pay for it in full. A
recount can be whatever a person wants it to be, including a
full hand recount, he said, making the costs extremely
uncertain.
MR. RUEDRICH said that democracy only works if people care to
vote, and the state has done many things to make it easier to
vote, but it is still difficult to encourage voter turnout. He
encouraged the legislature to keep the process easy for an
absentee voter, because traveling residents need the process
that is set up now.
3:27:28 PM
REPRESENTATIVE GARA said he has a problem with the practice of
the parties pre-checking the party affiliation of the voter on
absentee ballot applications, which the Alaskan Republican Party
does now. He said he doesn't approve of political parties
telling a voter what party he or she belongs to. Representative
Gara asked Mr. Ruedrich if he would support an amendment
prohibiting that practice.
MR. RUEDRICH said, "I think your point is fairly nebulous,"
adding that the Alaskan Republican Party does it because the
party gets its information from the Division of Elections, and
pointed out that the voter can change that checkmark.
REPRESENTATIVE GARA said the form currently has a list of empty
boxes, and noted that parties send out forms to independent
voters as well as their own party members. "Why not just leave
the box blank so the voter can fill it out?" he asked, adding
that the Division of Elections leaves those boxes empty so that
the voter can decide.
MR. RUEDRICH said, "We provide exactly what is on the state's
file data to the voter so they have an opportunity to validate
and, if they desire, correct that piece of information." If the
voter is non-partisan, that corresponding box is checked, he
said, adding that his party is just providing a service.
REPRESENTATIVE GARA asked him if he would mind not providing
that service.
MR. RUEDRICH opined that such would not be in the best interest
of the voters, adding, "I do not think we should change that."
3:31:55 PM
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, speaking
as chair of the House State Affairs Standing Committee, said he
would comment on the Division of Election's suggested amendment
that proposes to alter pages 29 and 30 of CSHB 94(STA); that
amendment read [original punctuation provided]:
Page 29, line 12:
Following "after a general election"
Delete "at which a governor was elected"
Page 29, line 20:
Following "general election"
Delete "at which a governor was elected"
Page 29, line 23:
Following "GENERAL ELECTION];"
Insert "or"
Page 29, lines 29 - 30:
Following "general election:
Delete "or at the most recent general election at
which a governor was elected"
Page 30, line 2:
Following [SENATOR AT THAT GENERAL ELECTION;OR]
Insert "or"
Page 30, following line 7:
Delete "or at the most recent general election at
which a governor was elected"
Page 30, line 11:
Following "registered in the state"
Delete "on March 31 of the most recent
election year"
Insert "in the month that the director
performs verification of party status as set out in AS
15.60.008(c)"
REPRESENTATIVE SEATON noted that the House State Affairs
Standing Committee worked hard to protect political parties from
becoming disqualified [because of efforts made by others]. He
said a political party qualifies as such if it gets a vote of at
least 3 percent in the gubernatorial, U.S. Senate, or U.S. House
of Representatives race, and that party will still be qualified
through the next gubernatorial election. "This is part and
parcel with a lawsuit that was filed," he said, and it was taken
care of in the bill that came out of the House State Affairs
Standing Committee.
REPRESENTATIVE SEATON said the aforementioned amendment changes
things so that if a party received 10 percent of the vote in a
gubernatorial election, and then no one ran under that party for
the U.S. Congress seat during the next "interim" election, an
"impostor" could file under that party and never campaign and
not get the required 3 percent of the vote. He said the intent
of the House State Affairs Standing Committee was to continue a
party's qualified status until the next gubernatorial election.
If the party got the required votes at the next interim
election, it would be qualified only through the next
gubernatorial election but not an extra two years, he explained.
REPRESENTATIVE SEATON said that he talked to people in many
political parties and everybody was satisfied [with the language
in CSHB 94(STA)]. Referring to the aforementioned amendment, he
asked the House Judiciary Standing Committee to reject the
language that proposes a change to page 29, line 12; reject the
language that proposes a change to Page 29, lines 29-30; and
reject the language that proposes to change page 30, following
line 7.
CHAIR McGUIRE surmised that what Representative Seaton is
proposing is that if a party qualifies either under the U.S.
Congress election or under the gubernatorial election, the
qualification would last another full four years.
REPRESENTATIVE SEATON said, "For the full four at the end of the
gubernatorial."
CHAIR McGUIRE said that's when the party re-qualifies.
REPRESENTATIVE SEATON added, "So parties would only be
disqualified at the certification after the gubernatorial
election."
REPRESENTATIVE SEATON said he'd talked with all the parties and
people who were involved in the lawsuit, and was of the
understanding that the language that came out of the House State
Affairs Standing Committee solved the problem. He opined that
the date change proposed by the aforementioned amendment is
fine.
3:40:43 PM
NINA MOLLETT spoke of the amendment labeled 24-GH1048\G.12,
Kurtz, 2/11/05, which read [original punctuation provided]:
Page 8, following line 12:
Insert a new bill section to read:
"* Sec. 15. AS 15.20.450 is amended to read:
Sec. 15.20.450. Requirements of deposit and
recount cost. The application must include a deposit
in cash, by certified check, or by bond with a surety
approved by the director. The amount of the deposit
is $2,500 [$300] for each precinct, $10,000 [$750] for
each house district, and $50,000 [$10,000] for the
entire state. If the recount includes an office for
which candidates received a tie vote, or the
difference between the number of votes cast was 20 or
less or was less than .5 percent of the total number
of votes cast for the two candidates for the contested
office, or a question or proposition for which there
was a tie vote on the issue, or the difference between
the number of votes cast in favor of or opposed to the
issue was 20 or less or was less than .5 percent of
the total votes cast in favor of or opposed to the
issue, the application need not include a deposit, and
the state shall bear the cost of the recount. If, on
the recount, a candidate other than the candidate who
received the original election certificate is declared
elected, or if the vote on recount is determined to be
four percent or more in excess of the vote reported by
the state review for the candidate applying for the
recount or in favor of or opposed to the question or
proposition as stated in the application, the entire
deposit shall be refunded. If the entire deposit is
not refunded, the director shall refund any money
remaining after the cost of the recount has been paid
from the deposit. If the cost of the recount exceeds
the amount of the deposit, the recount applicant shall
pay the remainder upon notification by the state of
the amount due."
Renumber the following bill sections accordingly.
Page 21, line 4:
Delete "secs. 20 - 43"
Insert "secs. 21 - 44"
MS. MOLLETT said she doesn't think anyone questions the accuracy
of voting machines, but voting fraud has occurred throughout
history, and a good election system is designed to prevent it.
This should be a nonpartisan issue, but nationwide, [citizens]
are more worried currently about election integrity. It is up
to the party in power to reassure the other parties and all
voters that elections are being run fairly, she said. Alaska is
doing better than most states, she opined, but Amendment G.12
will degrade its model system. She noted that Amendment G.12
would raise the cost of one type of recount from $10,000 to
$50,000. She said that she was one of the citizens who
requested the last U.S. Senate race recount, that it was very
hard to raise $10,000 in five days, and that it would be
impossible to raise $50,000. She added that it would also be
very hard for the average House district candidate to raise
$10,000 for a recount as is being proposed via Amendment G.12.
MS. MOLLETT said she favors an amendment proposed by
Representative Gara, which would require a random hand recount
of one precinct in every district after every election; that
amendment read [original punctuation provided]:
Page 10, following line 14
Insert new bill sections to read:
"*Sec. 13. AS 15.15.420 is amended to read:
Sec. 15.15.420. Duty to review the ballot
counting. The director shall review the counting of
the ballots with the assistance of and in the presence
of the state ballot counting review board [APPOINTED
REPRESENTATIVES FROM THE POLITICAL PARTIES].
*Sec. 14. AS 15.15.430 is amended to read:
Sec. 15.15.430. Scope of the review of ballot
counting. (a) The review 10 of ballot counting by
the director shall include only [A REVIEW OF]
(1) a review of the precinct registers, tallies,
and ballots case; [AND]
(2) a review of absentee and questioned ballots
as prescribed by law; and
(3) a hand count of ballots from one or more
randomly selected precincts in each election district
that accounts for at least five percent of the ballots
cast in that district.
(b) If, following the ballot review set out in
(a) of this section, the director 18 finds an
unexplained discrepancy in the ballot count in any
precinct, the director may count the ballots from that
precinct. If there is a discrepancy of more than one
percent between the results of the hand count under
(a)(3) of this section and the count certified by the
election board, the director shall conduct a hand
count of the ballots from that district. The director
shall certify in writing to the state ballot counting
review board and publish on the division's Internet
website any changes resulting from a [THE] count
performed under this subsection."
Instructions to Legislative Legal:
Make corresponding amendments and renumber
accordingly.
MS. MOLLETT said experts in computer voting have been urging
states to adopt routine hand recounts after every election for
quality assurance. There have been profound problems with
elections over the past few years, and there were about 100,000
voter complaints in the last national election, she noted. She
said this is a good time to be strengthening Alaska's system,
not weakening it. Other states are looking at what Alaska is
doing right, and if the legislature passes Amendment G.12, trust
in the election system will decline; in contrast, passing the
aforementioned amendment pertaining to recounts will increase
that trust, she concluded.
3:44:17 PM
JIM SYKES said he has been working on election laws since 1990,
and characterized HB 94 as basically a good bill. He said
proposed subparagraph (D) of Section 52 of CSHB 94(STA) provides
another avenue for political party recognition via registering 2
percent of the total number of registered voters, but previously
it was a number equal to 3 percent of the governor's race. He
noted it is difficult to form or keep a small party alive, and
even the common 1 percent standard is extremely high. He said
many states have much lower standards, gave examples, and
suggested that a standard of only 1,000 registered voters would
be much [better].
MR. SYKES said he is offering legally defensible language to
simplify the current law, to recognize the extreme difficulty of
registering voters to a political party. He said the proposed 2
percent language is not legally defensible because "it actually
means more than a 30 percent rise in what the requirement was in
2002."
MR. SYKES said an accurate voting machine doesn't guarantee an
accurate vote count, and he spoke of a 1994 election where vote
results were misreported. He said the reason to do a recount
verification is to find out whether a machine worked properly,
whether there was a programming error, or whether there was a
hacking attempt. He said currently only 3 precincts out of 439
are checked, and this "is almost an invitation to hackers." He
stated that one precinct hand count in each district would
eliminate any serious hacking attempts. Mr. Sykes, noting that
there is a proposed amendment that would raise the amount of a
deposit required for a recount, said he believes that is fair,
but it would need to be balanced by making sure that there is no
reason for anyone to want to ask for a recount.
MR. SYKES requested prohibiting the pre-marking of party
affiliations on absentee ballots because the ballot becomes a
voter registration form. He then spoke of the 1982 Alaska
Supreme Court case, Vogler v. Miller, as the guiding principle
for political parties, and noted that the court in that case
said: "only a regulation that impinges on the right to speak
and associate to the least degree possible consistent with the
state's legitimate goals will pass constitutional muster." He
mentioned that Alaska's nominating petition only requires 1
percent of the number of people who voted in the governor's
race. "That would be the standard I think that we should go
to," he concluded.
CHAIR McGUIRE relayed that [CSHB 94(STA), as amended] would be
set aside.
SB 105 - OVERTIME WAGES FOR FLIGHT CREW
3:52:06 PM
CHAIR McGUIRE announced that the final order of business would
be CS FOR SENATE BILL NO. 105(L&C), "An Act relating to the
retrospective application and applicability of the overtime
compensation exemption for flight crew members; and providing
for an effective date."
REPRESENTATIVE MARY KAPSNER, Alaska State Legislature, relayed
that her district is a good one to use to illustrate the
importance of the aviation industry in rural Alaska because the
communities are completely reliant on aviation for any kind of
transportation, including transportation for medical reasons and
the shipping of commodities, especially during "freeze-up and
break-up." She mentioned that CSSB 105(L&C) is in response to
[an Anchorage Superior Court] case currently being litigated -
John Harms and Other Employees Similarly Situated v. Hageland
Aviation Services, Inc., L. Michael Hageland and James Tweto.
She voiced the concern that if "we take retribution against the
airlines for not being in compliance with the federal laws on
overtime," it will drive airlines out of business, will put a
lot of people out of work, will increase the cost of air service
in rural Alaska, and will diminish the level of [air] service
that rural Alaskans get.
REPRESENTATIVE KAPSNER, noting that there is a lack of insurance
companies willing to provide insurance coverage in Alaska, said
that if any one part of the aviation industry is hurt, then the
whole aviation industry suffers. She relayed how the aviation
industry operates in her district with regard to how many air
carriers provide service and the types of services they provide,
their typical staffing levels, what kind of hours their pilots
are flying and why, and the different reasons why it can be hard
for air carriers in rural Alaska to retain good pilots. She
mentioned that sometimes air carriers allow a pilot to work just
half a day so as to be able to catch the last flight back to
his/her home, or allow a pilot to miss flying the first flight
of the day so that he/she is able to spend the previous night
with his/her family.
3:57:31 PM
CHAIR McGUIRE opined that Representative Kapsner's perspective
is important and her comments helpful.
REPRESENTATIVE GRUENBERG said he'd like evidence that [the bill]
could affect whether an air carrier will go out of business,
whether employees are afraid for their jobs, and whether those
named as plaintiffs in the class action lawsuit can opt out of
it.
REPRESENTATIVE KAPSNER said that a couple of the problems with
the current opt-out system for class action lawsuits are that a
lot of the pilots named as plaintiffs in the Hageland lawsuit
don't know they've been named in that lawsuit and that some of
them can't be found because the pilots are part of a transient
labor force. In terms of the stability of the airline industry,
she noted that her father was a commercial pilot who had a
charter service back in the 1970s and that he often used to
wonder how he was going to be able to continue in business even
back then when the charter airline industry was much more
lucrative that it is now. She remarked that there are very few
air carriers in Bethel that have any longevity at all, and
offered her belief that the changes in federal law regarding
bypass mail have made it hard on cargo carriers because there is
a preference for giving the mail to passenger carriers and this,
in turn, offsets passenger fares.
REPRESENTATIVE GARA mentioned that he is not thrilled about
retroactively changing the law, predicted that the bill will
probably succeed in moving through the process, and asked
whether the Hageland case is close to being resolved without
legislative interference, which could affect any future lawsuits
against other air carriers. He also asked whether it would make
sense to ban future lawsuits.
REPRESENTATIVE KAPSNER offered her understanding that that has
already been done, and that SB 105 is retroactive. She noted
that she has never heard any pilots in Bethel complain about how
they were treated as employees, including the person initiating
the Hageland litigation. She opined that Hageland Aviation
Services, Inc., ("Hageland Aviation Services") has not been
unfair to its employees, "especially in terms of overtime."
4:02:52 PM
REPRESENTATIVE MIKE KELLY, Alaska State Legislature, relayed
that he is an airline transport pilot and at one point in time
had flown in Bush Alaska for two years, and concurred with
Representative Kapsner's testimony regarding the importance of
the aviation industry in rural Alaska. He opined that fixing
"this" two years ago was the right decision, that as a result,
every pilot "knew what the rules were." He added his belief,
however, that there is a gap that needs to fixed at this time,
and characterized the issue as one of potentially subjecting air
carrier companies that are currently out of business - due to
the changes in the rules regarding bypass mail - to lawsuits
[regarding overtime wages]. The legislation that was originally
passed two years ago failed to cover a gap, he concluded, and
encouraged the committee to close that gap.
4:06:58 PM
SENATOR RALPH SEEKINS, Alaska State Legislature, sponsor,
offered that SB 105 is attempting to clarify the intent of the
2003 legislation, the goal of which was to address the issue of
how pilots in the state were paid overtime. He said that at the
time the 2003 legislation was moving through the process, he did
not realize that it contained the aforementioned loophole, and
suggested that it was not the legislature's intent to allow such
a loophole. He offered his understanding that the person who
initiated the Hageland litigation had originally been seeking
recourse for alleged age discrimination, and that the attorney
the man had spoken with relayed his belief that the man might
have "a wage and hour complaint." Senator Seekins opined that
it is the legislature's job to fix the loophole that the
attorney saw, and that doing so would not take away anything
from the pilot. The goal of SB 105, he reiterated, is to fix
the aforementioned loophole in the law regarding how pilots are
paid, to ensure that no one gets a windfall because the
legislature neglected to address this issue initially. In
conclusion, he offered his belief that SB 105 doesn't raise any
constitutional issues.
4:11:15 PM
REPRESENTATIVE KOTT noted that the minutes of the March 17,
2003, House Labor and Commerce Standing Committee minutes
reflect that Senator Donny Olson, sponsor of the 2003
legislation, said:
Because of their unique working conditions, flight
crews have been considered professionals exempt from
the standard 8-hour workday, 40-hour workweek, and the
associated overtime pay. ... Along with the maximum
flight hours set by the Federal Aviation
Administration (FAA), these exemptions at both the
state and federal level have allowed the industry to
structure flexible schedules for flight crew
personnel.
REPRESENTATIVE KOTT also noted that at that same meeting
Representative Anderson, chair of the House Labor and Commerce
Standing Committee, said:
... [T]he sponsor statement notes that the court's
interpretations of the exemption from overtime are
contradictory. This bill tightens that exemption so
it cannot be successfully challenged in court.
REPRESENTATIVE KOTT remarked, thus, that the House Labor and
Commerce Standing Committee didn't recognize the aforementioned
loophole either. He offered his interpretation of the
aforementioned to mean that at the time, Representative Anderson
was certain that no court decisions would be forthcoming.
4:12:57 PM
REPRESENTATIVE GARA asked whether the original bill was intended
to be retroactive or to change the rules for the future.
SENATOR SEEKINS offered his belief that the 2003 legislation was
intended to do both, that it would "make sure that there was no
liability for past acts that were outside of the bargain made
between the parties, at the same time that it was to clarify the
rule from this date forward" so that [air carriers] would not
get sued before the statute of limitations expired.
4:15:06 PM
THOMAS M. DANIEL, Attorney at Law, Perkins Coie, LLP, after
relaying that his law firm has been representing Hageland
Aviation Services in the aforementioned lawsuit, said he would
be testifying in favor of SB 105.
CHAIR McGUIRE mentioned that members' packets include Mr.
Daniel's written testimony.
MR. DANIEL relayed that he has been involved in the Hageland
litigation since its beginning, adding:
Under the federal law, pilots have been exempt from
overtime since 1949. In 1980, the Alaska attorney
general's office issued an opinion [memorandum]
indicating that pilots of interstate carriers in
Alaska were also exempt from overtime, and the
[Department of Labor & Workforce Development (DLWD)]
has followed that policy since sometime in the '80s.
So the rules of the game have been, for over 20 years,
that most airlines in Alaska thought that they were
exempt from both the federal wage and hour Act and the
Alaska Wage and Hour Act, and it was not until the
late '90s that a few lawsuits began to be brought,
challenging that assertion and arguing that in fact
... local airlines ... in Alaska could be [subject] to
the [Alaska] Wage and Hour Act.
And there are currently three lawsuits pending against
airlines on behalf of pilots. And it was really in
response to that litigation that started in the late
'90s that the legislature passed the bill that ...
explicitly exempted airlines. And then this bill [SB
105] simply makes that law retroactive. The other
point I would like to make is that I've become
familiar with Hageland Aviation [Services] as a result
of this litigation. It's a small air carrier, it's a
true "rags to riches" story: Mike Hageland came here
from Minnesota back in the '70s, bought an airplane,
started flying one airplane in Western Alaska, and
gradually grew into ... one of the major rural
carriers.
So this is a guy who has served rural Alaska for many,
many years, and this lawsuit threatens the viability
of Hageland Aviation [Services]. It literally could
put him out of business because it has been brought as
a class action [lawsuit]; there's a claim for doubling
of the damages under the [Alaska] Wage and Hour Act,
[and] there's a claim for full [attorney fees] in
addition to overtime. So when you add up what now
appears to be, potentially, 20 claimants, it literally
could bankrupt the airlines. ...
MR. DANIEL went on to say:
Senator Seekins ... is correct in stating that the
pilot who ... initiated this lawsuit, the main
plaintiff, ... was disgruntled because he thought he
was forced to retire because of his age. He went to
the Human Rights Commission, filed that complaint, ...
[and] was investigated. The Human Rights Commission
ruled against him on his age claim. But he hasn't
pursued the age claim; what he pursued, through his
counsel, was an overtime claim, and he didn't just
pursue it on behalf of himself, but on behalf of a
whole class of pilots. So that's why we're here.
Now, it has been suggested ... that this legislation
is unconstitutional. And the short answer to that is
that both the U.S. Congress and this legislature
passed legislation in practically every session that
makes laws retroactive, that makes them applicable to
pending litigation and, in some cases, makes them
applicable to litigation that is even on appeal. And
the plaintiffs will argue that an un-litigated claim
is a property interest, which can't be taken without
due process of law. And that is a principle that's
been recognized in both state and federal court.
But the due process of law is what they're getting
right here, in this legislative body. The law
essentially is, as long as the legislature has a
legitimate purpose in passing retroactive legislation,
it's constitutional. The attorney general's office
was asked, in 2003, about another retroactive piece of
legislation that amended the Alaska Wage and Hour Act,
... and the attorney general's office issued an
opinion that that law was constitutional. So I think
the law is constitutional; ultimately, that will
probably have to be determined by the courts, but if
you look at past history, it indicates to me that this
law would be fully constitutional.
4:22:41 PM
REPRESENTATIVE KOTT asked Mr. Daniel whether he believes that
pilots of air carriers consider themselves to be
"professionals."
MR. DANIEL said yes.
REPRESENTATIVE KOTT offered his understanding that the
Department of Labor & Workforce Development (DLWD) has said that
when that is the case, then no specific additional exemption is
required, that "professionals" are covered under the existing
exemptions. He asked how, then, after the air carriers have
received such information from the DLWD and have been acting
under the assumption that that information is accurate, that a
class action suit could be filed against them.
MR. DANIEL offered his understanding that the attorney general's
opinion and the DLWD's policy was that pilots were just exempt,
period, since they were employees of interstate air carriers.
There is also an exemption in the [Alaska] Wage and Hour Act for
professionals, for which a pilot might qualify, but the problem
with qualifying under that exemption, he remarked, is that as a
professional, one must be paid in a certain manner, and, as
Representative Kapsner testified, a pilot working in the Bush
isn't always paid in that particular manner. Pilots in the
Bush, he added, are currently being paid under a system that has
evolved over time, and this system generally consists of paying
a pilot at a daily rate and is also what has raised the issue of
whether air carriers have been in violation of the [Alaska] Wage
and Hour Act.
REPRESENTATIVE KOTT asked whether the definition of
"professional" is a state definition or a federal definition.
MR. DANIEL said he is referring to the state definition, but
noted that it incorporates, by reference, the federal
regulations regarding the type of salary that a professional
must be paid.
REPRESENTATIVE KOTT asked whether similar litigation is pending
in other states.
MR. DANIEL said he is not aware of any.
4:26:05 PM
REPRESENTATIVE GRUENBERG asked whether the question [being
raised in the Hageland litigation] is one of federal preemption.
MR. DANIEL said that is just one of several questions being
raised in the litigation.
REPRESENTATIVE GRUENBERG asked why the Hageland lawsuit isn't
being addressed in federal court.
MR. DANIEL surmised that it is because pilots of interstate
[air] carriers are clearly exempt from overtime law, and so it
would have been a "short" lawsuit had it been brought in federal
court.
4:27:17 PM
MR. DANIEL, in response to questions, said the first case [that
made mention of an] overtime claim that he is aware of is the
case of Era Aviation, Inc., v. Lindfors, which was filed in 1997
and decided by the Alaska Supreme Court in 2000; that the
statute of limitations for claims regarding overtime wages is
two years; and that the Hageland litigation was filed in 2002
and relates back to [wages owed] beginning in June of 2000.
4:28:50 PM
REPRESENTATIVE GARA opined that that undercuts the argument that
no one knew that overtime was supposed to be paid, since
starting in 1997 there were claims that "this" law has been
misinterpreted by the DLWD. He went on to say:
Nobody in your case is seeking damages for any claims
from prior to 1997. So, [beginning in] 1997, people
are on notice that there's a dispute about what the
[DLWD] has said. And it's not until 2000 that these
claims will apply. Does that not sort of undercut
this sort of fairness "God, we were caught blindsided"
question? By 2000, shouldn't Hageland [Aviation
Services] have thought, "Well, gosh, this a disputed
issue; we'll just use our best judgment as to whether
or not we should pay overtime"?
MR. DANIEL offered his belief that the Era Aviation lawsuit
started the move to amend the law so as to clarify explicitly
that pilots were exempt, and that "this" led to the 2003
legislation.
REPRESENTATIVE GARA said his concern with retroactively changing
the law is that sometimes an industry is so influential as to be
able to influence an agency, the legislature, and the attorney
general's office into interpreting/changing the law in the
industry's favor. He said that according to his experience,
attorney general's opinions and agency opinions often reflect
the views of the administration, and are not necessarily
objective views of the law; he offered an example involving
opinions and laws regarding pesticides to illustrate his point.
He asked why - knowing that an attorney general's or an agency's
opinion as to what a statute means is just advisory until it's
been tested in court, and knowing publicly that as far back as
1997 that "this" was an issue of dispute - should it be assumed
that the client was caught unawares in 2000 regarding whether
overtime should have been paid.
MR. DANIEL opined that although people such as he and
Representative Gara, for example, know that an attorney
general's opinion or an agency's opinion is just advisory, it is
reasonable to expect that the average businessman would rely on
such an opinion as accurate.
REPRESENTATIVE GARA asked Mr. Daniel whether, by 2000, Hageland
Aviation Services had consulted an attorney regarding applicable
overtime wages.
MR. DANIEL said the record in the case reflects that his client
had not consulted an attorney prior to the lawsuit being filed.
4:35:34 PM
REPRESENTATIVE KOTT offered his recollection that testimony
provided during the hearings on the 2003 legislation indicated
that the legislative liaison for the Alaska Air Carriers
Association (AACA) had consulted with the DLWD numerous times on
this issue and was told repeatedly that pilots were considered
professionals and, as such, were covered under the existing
statutory exemptions. He asked whether, if such communications
had been ongoing for a number of years, there would be some
assurance for the air carriers that they were not liable under
"this." He suggested that it would also be fair to assume that
employees who felt they were not being paid correctly would have
contacted the DLWD on that issue. He offered his belief that
there are two avenues of thought: one, that the air carriers
felt comfortable with the DLWD opinion that said they "were
covered under the exemption"; and the other, that dissatisfied
employees would have gone to the DLWD and complained.
MR. DANIEL said that not a single pilot working for Hageland
Aviation Services, not even the original plaintiff, has gone to
the DLWD and complained about not being paid overtime. He added
that of the 82 pilots that potentially have claims in the
Hageland lawsuit, the majority of them have affirmatively taken
steps to remove themselves from the lawsuit, and surmised that
this is an indication that they don't support the lawsuit and
feel that they were paid fairly.
REPRESENTATIVE GRUENBERG asked whether such just shows instead
that the pilots were ignorant of their rights and are
particularly vulnerable.
MR. DANIEL said he did not think so because the pilots that have
opted out understand that they could potentially get a lot of
money from Hageland Aviation Services but have still chosen not
to participate in the lawsuit.
REPRESENTATIVE GRUENBERG asked whether that might not just
reflect that those who have opted out of the lawsuit are still
employed by Hageland Aviation Services and are afraid for their
jobs, and that those who have not opted out are no longer
employed.
4:40:40 PM
MR. DANIEL said that is true in part; there is only one pilot
currently employed that has not opted out.
REPRESENTATIVE GRUENBERG asked how many pilots who are no longer
employed have opted out of the lawsuit.
MR. DANIEL said he didn't know that number off the top of his
head, but added that 60 of those that were named as plaintiffs
have opted out. In response to the allegation that pilots have
been intimidated or have been threatened with losing their jobs,
he explained that that issue has already been addressed by the
court, and offered his understanding that none of the pilots
[remaining in the lawsuit] have claimed that such has occurred.
4:42:35 PM
REPRESENTATIVE GRUENBERG said he is concerned, on a policy
basis, about people being coerced or intimidated in any venue.
MR. DANIEL offered his understanding that the law protects
[those who come forth to testify] against retaliation, and
reiterated that he has not heard any testimony indicating that
anyone is being threatened or intimidated.
REPRESENTATIVE GRUENBERG asked how many of those named as
plaintiffs in the Hageland lawsuit cannot be found, and so
presumably might not know that they are a part of the lawsuit.
MR. DANIEL offered his understanding from discussions he's had
with the plaintiffs' attorney that four plaintiffs have not yet
responded to communications.
4:45:03 PM
MR. DANIEL submitted a letter - dated April 5, 2005 - to members
regarding the constitutional issue.
REPRESENTATIVE GARA asked what the wage claims currently amount
to.
MR. DANIEL said he couldn't provide that information, but
offered that the [original] plaintiff is claiming a total of
$140,000. He indicated that if one assumes that the remaining
plaintiffs in the lawsuit claim a similar amount, then it would
be about 20 times that amount.
REPRESENTATIVE GARA asked whether Hageland Aviation Services
knew about either the proposed [2003] legislation or any of the
lawsuits that had been filed before 2000.
MR. DANIEL indicated that he didn't know whether his client was
aware of any of the lawsuits, but offered his understanding that
his client was aware of the 2003 legislation.
4:47:34 PM
BRUCE McGLASSON, Owner/President, Grant Aviation, Inc. ("Grant
Aviation"), relayed that his company is in direct competition
with Hageland Aviation Services in Western Alaska and employs
about 40 pilots and about 140 employees total. He said his
company pays its pilots the same way that Hageland Aviation
Services does: it's a daily rate based on a pilot's
availability to work, regardless of whether he/she actually
works and regardless of how long during the day he/she actually
works. Grant Aviation went to that system because of the belief
that it's a safer way to pay pilots, since it removes the
financial incentive for pilots to fly in unsafe conditions;
Grant Aviation still uses this method to pay pilots despite the
Hageland litigation, both because it is a safer way to pay
pilots and because of the company's faith in the legislature to
change the law such that [the exemption] is retroactive.
MR. McGLASSON offered his belief that both Grant Aviation and
Hageland Aviation Services have treated their pilots fairly by
negotiating with their pilots individually prior to their
employment and agreeing on how their pilots would be paid, and
have since honored those agreements. Opining that the
aforementioned litigation will put Hageland Aviation Services
out of business, he said that Grant Aviation does not believe
that such would be right, and remarked that if his company were
to face similar litigation, it would bankrupt him as well; not
counting punitive damages, he calculated, he could owe as much
$800,000. He relayed that over the years, on multiple
occasions, Grant Aviation has been told by the DLWD that the
method Grant Aviation was using to pay its pilots is fair,
right, and in compliance with federal law. In response to
questions, he reiterated his explanation of how Grant Aviation
pays its pilots, and listed some of the reasons why a pilot who
is available to work might not get to work, such as weather
conditions, mechanical issues, and passenger numbers.
4:54:02 PM
MICHAEL HAGELAND, Owner, Hageland Aviation Services, Inc.,
stated that he started flying in Western Alaska in 1972 for
other carriers, and then started his own business in 1981.
Prior to 1981, he said, he witnessed all the different manners
in which pilots got paid, though most carriers paid pilots by
the flight hour. He posited that this caused some pilots to
take chances, and possibly led to accidents as well. So when he
started to hire pilots, he decided to pay his pilots monthly so
that the pilots didn't feel under pressure to fly when the
weather was bad. Around 1999, the work schedule was changed
because "pilots were making plenty of money but they didn't have
time to spend it," therefore the schedule was changed such that
a pilot would work 20 straight days and then have 10 days off.
MR. HAGELAND continued:
That was still a legal way under the law to pay then,
and of course, we didn't know any different anyway.
But some of [the pilots] complained that in some
months, because [there are] 31 days in the month, they
had to work 21 days, so they wanted to get paid for
the extra time they worked. So we said, "Okay, we'll
pay you the extra days." ... So that's how the daily
rate broke down. About ... 2001, the airlines were
hiring pretty heavily ... and it was hard to keep ...
quality pilots. And [so] to keep quality pilots, we
just had to make better working conditions; so we
changed it to a 15 and 15: they worked 15 days on and
15 days off, sometimes 16 ... and we still kept them
on the same monthly pay. They also got paid for
weather days whenever they were on duty. ...
MR. HAGELAND commented:
This lawsuit came as a surprise to me because I've
always considered myself to be a fair person, and I've
always paid my bills on time, and I've always paid the
pilots well. It was a real surprise. I was operating
under the assumption that pilots were exempt. ... The
pilot that brought this suit, when we interviewed him
down in Florida where he lives now, ... he also said
he was paid fairly, and he didn't have any complaints
about the way he was paid. And he didn't know he was
suing me personally, he didn't know he was suing ...
Ron Tweto's widow and ... children either, but that's
the lawsuit - it's against us personally also. And
I'm sorry I didn't bring our financials or I could
show you that ... [we'll go bankrupt]. ... We employ
180 people plus 72 village agents that are contract
people. It won't ruin the state or anything but it'll
sure make a hole in those persons' lives.
4:59:21 PM
REPRESENTATIVE GRUENBERG characterized this information as key
for him in his consideration of this issue. He stated that he
has no desire to get into Mr. Hageland's financial records, but
he said, "That's a most important statement that you've made."
REPRESENTATIVE GRUENBERG made a motion that the witness be sworn
in and repeat his statement under oath.
The committee took an at-ease from 4:59 p.m. to 5:03 p.m.
5:03:24 PM
CHAIR McGUIRE noted that under AS 24.20.060, the legislature has
the power to administer oaths, issue subpoenas, and compel the
attendance of witnesses. She asked that Mr. Hageland continue
with his testimony, and if a written oath is brought to the
committee from Legislative Legal and Research Services, the
committee will address the matter then.
REPRESENTATIVE KOTT predicted that if all the plaintiffs came
forward, Mr. Hageland might have to pay out around $2.8 million,
and asked Mr. Hageland what this payment would do to his
business.
MR. HAGELAND said he'd have to file for bankruptcy, and pointed
out that he has sworn to this in an affidavit in court during
prior testimony.
REPRESENTATIVE GRUENBERG asked that that affidavit be submitted
to the committee, and noted that no written oath would then be
needed.
CHAIR McGUIRE remarked that this would be the cleanest way to
approach the situation.
5:07:17 PM
REPRESENTATIVE GARA said:
I want to sort of assess the claims that have been
made to me about what notice [Mr. Hageland] was on.
There's been some testimony here that starting around
1997, people started to file lawsuits claiming that
this statute had been wrongly interpreted and people
were entitled to overtime. And then somewhere around
that time there was an effort to change the law in the
legislature. Can you tell me, by 2000 ... were you
aware of any of ... the efforts to change the law or
[of] the legal disputes - that people had been legally
challenging this rule?
MR. HAGELAND replied that he doesn't remember anything about a
1997 lawsuit. He said, "If I had, I would [have assumed] that
it was probably something they were paying by the hour and not
the way we were paying." He explained that his company paid
pilots by the month until 2000, when it was switched to a daily
pay rate to accommodate the pilots that were working a little
extra. He said that the 2003 legislation was the first effort
to change the law that he knew of.
5:11:59 PM
RICHARD CLARK, Pilot, Hageland Aviation Services, Inc.,
testified that he has been flying for Hageland Aviation Services
for nine and a half years. He said, "They've always been fair,
they've always been generous and honest." He remarked that
pilots from different companies talk with each other and he has
never heard any negative statements about [Hageland Aviation
Services] from the pilots he works with. He commented that most
of the pilots from other companies want to work at Hageland
Aviation Services because they know it's a good company. He
said that he was first made aware of the lawsuit through a
letter that said he was in it unless he opted out, which he did
right away and without reservation. He said: "I believe that
those pilots that are still working for the company that did opt
out didn't do it because of coercion or fear for their job. I
believe they did it because they like the company. They don't
want the company to go bankrupt." He remarked that the general
consensus amongst the pilots he has spoken with is that current
employees are worried that the lawsuit will have a negative
effect on the company.
REPRESENTATIVE KOTT asked for information about Mr. Clark's
piloting experience.
MR. CLARK answered that he has been flying since he was 17 years
old and has logged in about 14,000 hours. He said that he has
flown every plane that Hageland Aviation Services has, and is
now flying the company's largest plane. He noted that he took a
break for about 20 years, but he missed the business. He said,
"In the aviation business, people care about their job and it's
a professional atmosphere."
5:16:51 PM
REPRESENTATIVE KOTT asked Mr. Clark if he would consider himself
a professional.
MR. CLARK replied affirmatively.
CHAIR McGUIRE asked Mr. Clark to discuss the wage and hour
issue, and to compare current payment methods to those used 20
years ago.
MR. CLARK commented that he's seen companies that pay by the
flight hour as opposed to a salary. He said that you can always
tell when someone is getting paid by the flight hour because,
"they fly a lot further out before they turn to come in." He
offered his belief that pilots are mainly concerned with not
breaking a regulation and he offered examples of this.
5:19:52 PM
IGNATIUS BEANS, JR., Safety Check Pilot, Hageland Aviation
Services, Inc., testified in support of SB 105. He stated that
he has been employed by Hageland Aviation Services for almost
seven years, that he was born and raised in Mountain Village,
Alaska, that has known Mr. Hageland for a long time, that he is
retired from the Alaska National Guard where he served 23 years.
He said that it was always his intention upon retiring from the
Alaska National Guard to fly in Western Alaska, and remarked
that Hageland Aviation Services has always been very fair with
him. He said: "I took the job knowing what I was going to
make, knowing what my set times were. He was pretty up front
with me. If I had a pay problem, I called [Mr. Hageland and he
took care of it]." He stated that he was distressed to learn of
the lawsuit, and he immediately opted out. He characterized the
lawsuit as bogus, and said that he has not seen any pilots being
pressured to opt out or to stay in the lawsuit.
REPRESENTATIVE KOTT asked Mr. Beans how long he has been flying.
MR. BEANS answered that he got his pilot license in 1978, flew
with the National Guard from then until his retirement in 1995,
and joined Hageland Aviation Services in 1998.
REPRESENTATIVE KOTT asked Mr. Beans if he considered himself a
professional.
MR. BEANS replied affirmatively.
5:25:17 PM
PETER C NOSEK, Attorney at Law, testified that he is
representing about 18-20 pilots that have established overtime
claims against Hageland Aviation Services. He pointed out that
the Alaska Department of Labor and Workforce Development (DLWD)
has never taken the position that air carriers are exempt from
Alaska law. He said:
Since 1980 the [DLWD] position has been that ...
intrastate air carriers such as [Hageland Aviation
Services] are subject to the law and they must comply
with the law. So this isn't a federal preemption
issue; this is, "Did Hageland Aviation comply with the
law?" And in fact there is a 1984 attorney general's
letter which further explains its 1980 letter. And in
1984, the attorney general said in no uncertain terms,
if you fly intrastate, you are not preempted by the
federal Railway Labor Act unless you have a collective
bargaining agreement. And that also has been
submitted to you. So there should be no confusion
that the [DLWD] has never considered air carriers
exempt from Alaska law; they've always had to comply
with Alaska law, and that is [to] treat their
employees as professionals. And if you want the
privilege of paying a professional a salary, you have
to follow what the law says. [Hageland Aviation
Services] did not do that, and there's no question
that [it] did not do that, and the superior court has
already established that they violated the law.
MR. NOSEK continued:
The issue I would like to address is this [issue of]
fairness. This has been portrayed as purely a
technicality of the law, and that's not quite correct.
What Hageland did in violating the law was, if a pilot
showed up, missed the first part of his day of work,
he got docked a half day's pay. That's against the
law. If you show up for an hour, you get your full
salary. ... [Hageland Aviation Services] also failed
to provide any additional pay if they worked over
eight hours in a day. So Hageland Aviation tried to
have the best of both worlds: dock them if they miss
part of the day, don't pay them extra when they work
late.
MR. NOSEK stated that the pilots want flight hours so that they
can fly for a larger carrier, and so the pilots don't have a lot
of choice, "They take what they can get and get in the hours in
hopes of going to a bigger carrier." He stated:
The bill now before this committee is not really about
the air carrier industry. The law was changed two
years ago to protect the industry; you can only file a
lawsuit for two years. So the industry has received
the protection it desires. What's at issue here is
whether we're going to retroactively exonerate
Hageland Aviation for its violations of the law. And
what this committee needs to understand is that that
law was changed in 2003. Hageland's lawsuit was filed
in 2002, long before there was any change in the law.
These pilots ... went to the [DLWD] and asked, "Are we
subject to the Wage and Hour Act?" The [DLWD] said,
"Yes." And that was in 2002, and that letter has been
submitted to the committee. So in good faith, based
upon guidance from the [DLWD] under the law as it was
written, this lawsuit was filed over a year before
there was any change in the law.
MR. NOSEK continued:
The issue then was very simple: Did Hageland break
the law or not? And that has already been
established. And that raises the constitutionality
issue, and that is: These pilots have a right to
overtime under the law that governed their employment.
In fact, that law is part of their employment
contract. As a matter of law, their employment
contract includes their overtime rights, and that is
part of the Alaska statute. So these pilots performed
the labor, they're entitled to it under the law, and
they sought to enforce their rights under the law.
And the court has granted them summary judgment.
That creates a vested property right to that overtime,
and to reach back five years in time and say, "We will
change what the law was five years ago," takes away
that vested property right, and I believe it is simply
unconstitutional under either the federal or the
Alaska constitution. And so if this bill were to fail
ultimately because of the unconstitutional nature of
it, it takes away the protection for all air carriers
by overreaching to try and take away that summary
judgment right that's already been established; it
jeopardizes the entire bill that is before the
committee.
MR. NOSEK concluded:
Now a lot has been raised about the amount of money
that is at issue in this lawsuit. ... No one started
this lawsuit simply about money. Before this lawsuit
was filed an offer was made to Hageland Aviation:
$40,000 and the lawsuit would be released, waived, and
never filed. ... And Hageland Aviation refused to even
speak with us.
5:31:08 PM
REPRESENTATIVE DAHLSTROM sought clarification regarding the
$40,000 offer.
MR. NOSEK explained that the offer was made [by himself] to the
president of Hageland Aviation Services and their counsel. He
said that as a result of their refusal to accept the offer, the
lawsuit was filed.
REPRESENTATIVE DAHLSTROM asked how many people Mr. Nosek was
representing when he made that initial offer.
MR. NOSEK clarified that at the time he was representing only
one pilot. He stated that there are currently about 18 pilots
and only one pilot who has not physically been contacted, while
60 pilots have chosen to opt out of the lawsuit. He said that a
significant number of the pilots have told him that they are
opting out because they are afraid of retribution and afraid for
their jobs. He gave the example of one person who, in his
deposition, said that he supported the lawsuit; that same day
the person was called in to see his current employer, another
air carrier, after which he called Mr. Nosek's office to back
out of the lawsuit.
MR. NOSEK continued:
The issue has been raised about whether or not these
individuals are professionals. A professional is a
creation of the Alaska statute, and there are several
requirements: if you want the privilege of paying a
salary you have to treat them as professionals and the
court has already determined that Hageland Aviation
simply did not comply with those laws. And so what
the issue before the committee is, "Is there a
justification for reaching back in time and
exonerating those violations of law?"
5:34:08 PM
REPRESENTATIVE GARA noted that he doesn't like the legislature
to choose sides in pending lawsuits, and he noted that he has
never voted to retroactively alter the outcome of a lawsuit.
However, he said that the only thing that concerned him a bit
was the statement that the lawsuit could put Hageland Aviation
Services out of business. He asked Mr. Nosek to comment on
this. He also asked if Mr. Nosek had an estimate of the
outstanding legal claims against the company.
MR. NOSEK acknowledged that an affidavit was submitted that said
that a liability of $250,000 would bankrupt Hageland Aviation
Services. However, he pointed out, the company does not own the
aircraft it flies. He commented, "It's a shell corporation that
owns virtually nothing." He explained that everything is owned
by two other separate companies which are both owned by the same
two individuals who own Hageland Aviation Services. He said:
To say that Hageland Aviation would go bankrupt is to
say that an empty shell corporation would go bankrupt,
and that is precisely why the individual owners who
also own all those airplanes in different companies
have also been sued. The Wage and Hour Act
specifically allows individuals to be sued as
employers precisely for that reason - so that you
can't hide assets and simply allow a shell corporation
to go bankrupt.
MR. NOSEK noted that he has seen the financials for those
companies. He said that since Mr. Hageland has already paid
$500,000 in attorney fees, he doesn't see the $250,000 lawsuit
bankrupting Hageland Aviation Services. He pointed out that
there are 20 individuals in the class action lawsuit, and
perhaps 15 of those will file a claim. Because some of the
individuals were employed by Hageland Aviation for only the
first few months of the claim, those claims could be as small as
$2,000 or $5,000. He estimated that the larger claims could be
around $50,000. The court has already ruled that because
Hageland did not, in good faith, attempt to comply with the law,
the pilots are entitled to liquidated damages, he noted, which
would equal double damages.
MR. NOSEK pointed out that when the lawsuit began in 2002, it
was agreed that the documents showing hours worked by the
employees would be saved. However, he said, Hageland Aviation
destroyed all of those documents, and therefore there is no
longer any way to determine what the pilots are owed. He
surmised: "But it certainly will not be $140,000 per 18 pilots.
I do not believe it would ever grow that large."
CHAIR McGUIRE asked how much the [law firm] would be paid as a
result of the settlement.
MR. NOSEK replied that that would be determined by the court.
He explained: "In a class action, the amount of attorney fees
is up to the discretion of the judge. So the judge could
identify a method for determining a reasonable attorney fee, or
he could simply follow the Wage and Hour Act and look at the
number of hours that it took to pursue the action."
CHAIR McGUIRE asked Mr. Nosek if he intends to make a filing as
to which payment method he prefers.
5:40:38 PM
MR. NOSEK answered that he has not thought about that issue yet.
He said, "I imagine it would just be asking for our hourly rate,
but we wouldn't ask for a contingency fee or some enhanced."
REPRESENTATIVE DAHLSTROM asked what Mr. Nosek's hourly rate is.
MR. NOSEK responded that his hourly rate is $200.
REPRESENTATIVE DAHLSTROM asked if Mr. Nosek is the only attorney
working on this case.
MR. NOSEK replied that he is the primary attorney on the case,
and that there is another attorney who occasionally works on the
case. In response to further questions from Representative
Dahlstrom, he said that the other attorney is more senior than
himself and would therefore have a higher hourly rate.
5:41:30 PM
REPRESENTATIVE GARA asked if there are any pending offers to
settle on the case.
MR. NOSEK replied that there are none. He reiterated that the
first offer was rejected with the message that Hageland Aviation
Services would rather go bankrupt than settle with the pilots.
CHAIR McGUIRE asked Mr. Nosek whether, if this legislation
continues to move through the process, he is swayed by any of
the arguments made regarding the danger that pilots might face
from taking risks when receiving an hourly pay rate.
MR. NOSEK replied that he is not compelled by those arguments.
He said: "The argument boils down to this: that they cannot
safely pay a pilot and comply with the law. ... And that
argument just doesn't hold merit; there are a number of
different ways that pilots could be paid to operate in a safe
fashion and comply with the law." He pointed out that the
claims against the company are not claims against the industry
as a whole, but against Hageland Aviation in particular. He
said:
You can pay a salary to a pilot. ... He gets his
salary no matter how much he works; he doesn't have to
fly in nasty weather. But if you are paying a salary,
you can't dock them if they show up late. That's what
Hageland did. There are a number of ways you can pay
pilots, address those safety concerns, and comply with
the law. So there really is not an issue of trying to
comply with the law and be safe at the same time. And
as far as the concern that this would drag the
industry down: the law was changed two years ago, and
there are no claims for overtime from the date of that
law forward.
I think that the constitutionality of taking away a
vested right that has been recognized by a summary
judgment could be easily accomplished and save the
bill. ... The bill reads that it is retroactive to
January of 2000 and applies to those claims that are
not determined by final court judgment prior to the
effective date. By simply removing one word, the word
"final," that avoids the constitutionality problem of
the summary judgment that a court has already issued
against Hageland Aviation ... and yet does not expose
any other air carrier in the state to any risk
whatsoever. And so it would be a balancing between
recognizing an intent to protect the industry, and
recognizing the valid and established overtime claims
that have been established in court thus far. ...
Simply deleting the word "final" ... would accomplish
both of those tasks.
CHAIR McGUIRE noted that the legislature has passed retroactive
legislation in the past. As policy makers, they are forced to
look at the broader impacts of legislation. She offered her
belief that the costs of class action lawsuits are further
reaching than one would anticipate. She surmised that even if
Hageland Aviation did stay in business, they would have to raise
their passenger rates and thus impact people who have no other
way to travel to the small communities.
5:48:35 PM
MR. NOSEK, in response to a question, noted that the Railway
Labor Act exemption used to be part of Alaska law, and 1972 the
legislature made a policy decision that it did not want the
Railway Labor Act exemption to apply under Alaska law and so it
was repealed. He said: "So this very exemption that is now
being sought to be made retroactive used to be a part of Alaska
law ... and the legislature chose to remove it. So it was an
affirmative decision to remove that federal preemption from
Alaska law." He opined that this [continual changing of the
law] is a harmful public policy because it undercuts confidence
in the law and creates confusion.
REPRESENTATIVE GARA commented: "Isn't their argument not
whether ... the Alaska Wage and Hour Act applies but whether,
... under the Alaska Wage and Hour Act, Hageland [Aviation] was
paying its employees correctly? ... Isn't it their position that
... under Alaska law, ... you don't have to pay overtime?"
MR. NOSEK said he's heard it stated both ways. He elaborated:
The position from the [DLWD] and the attorney general
is that Alaska law does apply to an intrastate air
carrier unless they carry mail and have a collective
bargaining agreement and so forth. It does apply to
intrastate air carriers. The question then is, are
you complying with the law and treating them as exempt
professionals as is laid out in the law. If you
properly fulfill the elements of a professional
employee, then you don't have to pay overtime.
5:53:45 PM
MIKE BERGT, General Manager, Alaska Central Express, Inc. (ACE),
after explaining his company's background, noted that ACE has
been sued. The suit was filed in July 2004, and the claim was
that ACE failed to pay overtime to a pilot who had been with the
company since 1998. He said that there have been two lawsuits
filed since the passage of the state exemption in 2003. He
noted that ACE pays its pilots an hourly wage. He stated his
understanding that it is not the physical flying of the aircraft
that determines whether an aircraft is intrastate or interstate;
it's the traffic that it carries. He offered an example of a
passenger who is traveling ultimately between two states, but
only taking the particular air carrier within one state, that
air carrier is still considered to be an interstate carrier.
Therefore carriers that fly mail originating from all parts of
the world would be considered an interstate carrier. He assured
the committee that ACE has never taken advantage of its pilots,
and noted that the pilot who filed the lawsuit had never filed a
grievance with the company.
MR. BERGT stated, "I'm here to encourage this committee to
support SB 105." He opined that the suit that was brought
against ACE was the result of the lawsuit brought against
Hageland Aviation. He said that there are some attorneys in the
state that have learned of the potential windfall in the
Hageland case, and he commented that the pilot who filed a
lawsuit against ACE had originally been approached by an
attorney who told him he had a potential claim against ACE. He
noted that this attorney has been disqualified by the state
district court because the attorney worked for the law firm that
acts as general counsel to ACE. He said:
I think attorneys see an opportunity to take advantage
of the window that was created when the legislative
body passed the state overtime exemption in 2003, and
are taking advantage of the situation in which air
carriers, large and small, were acting in good faith
with the policy set forth by the [DLWD] 20 years ago.
MR. BERGT pointed out that larger air carriers have had the same
difficulty and confusion regarding overtime-pay laws. He said,
"This bill is not about taking away any rights of pilots or
employees; it is reaffirming what has been the general practice
of air carriers who've acted in good faith and in accordance
with state policy for the last 20 years."
6:00:19 PM
GRANT THOMPSON, President, Cape Smyth Air Service, urged that SB
105 be passed. He relayed the makeup of his company, assuring
the committee that his company would never try to circumvent the
law. He commented that he thought his company was paying the
pilots fairly and never thought that the current method was in
violation of the law. He noted that most carriers pay pilots in
the same way. He added that companies try to take care of their
pilots because if pilots feel that they are not treated fairly,
they will go to work elsewhere.
CHAIR McGUIRE asked whether the lawsuit against Cape Smyth Air
Service was against just the company or against Mr. Thompson
personally as well.
MR. THOMPSON replied that the May 2004 lawsuit was against both
the company and himself, although he is an employee of the
company; the company is owned by the estate of Thomas P. Brower,
who was Mr. Thompson's father-in-law.
6:04:02 PM
TOM NICOLOS, Cape Smythe Air Service, testified in support of SB
105. He pointed out that in a September 3, 1986, letter to the
executive director of the Alaska Air Carriers Association, [the
DLWD] stated that it had adopted the position of the United
State Department of Labor that commuter aircraft and air taxi
pilots are exempt only if involved in interstate transportation
of passengers and/or substantial hauling of the mail; if their
activities are solely intrastate or without the mail hauling
function, none of the exemptions would apply. He noted that
every carrier currently being sued in Alaska carries substantial
amounts of mail.
MR. NICOLOS continued:
Through your own counsel in a memorandum to [Chair
McGuire] dated January [2005], they said a person's
due process rights are not violated if that person
becomes deprived of the right to sue under a statute
which had formerly given them claim, but that statute
was changed or removed prior to a final court
judgment. So I would encourage you both to leave the
word "final" in this bill, and understand that the
[DLWD], in a letter in September of 1996, did give the
carriers the understanding that they were exempt from
the Alaska state statutes as long as they were hauling
mail.
6:06:21 PM
MARK JOHNSON, Pilot, Hageland Aviation Service, Inc., relayed
that he's been in Alaska since 1980 and has worked for a number
of air carriers in Western Alaska. He commented that he has
been paid both hourly and by salary, and he opined that is it
far safer to pay pilots a salary. He noted that he has
witnessed pilots who are paid by the hour fly in very bad
conditions just so that they can get in their flight hours and
get paid. He said he would vouch for Mr. Hageland's integrity,
and that this was the best job he'd ever had. Regarding the
issue of retroactivity, he said it seems to him that in the
interest of justice, either all pilots should get overtime or
none of them should.
6:12:18 PM
MICHAEL CHARLIE, Pilot, relayed that he has been flying for
Hageland Aviation Services, Inc., in the Bethel area for 6
years, and that he anticipates flying for the company for
another 25 years because he is comfortable with the company and
its method of payment. He surmised that all of the [other]
pilots that have opted out of the Hageland litigation feel the
same way. He recounted how he first became familiar with the
company, which of his relatives also work for the company, and
what his typical workday involves, and said that Hageland
Aviation Services supports local hiring and is much needed in
the community. In conclusion, he said he supports SB 105.
6:14:27 PM
KAREN CASANOVAS, Executive Director, Alaska Air Carriers
Association (AACA), after relaying that the AACA represents more
than 67 air carriers operating in Alaska and over 75 supporting
aviation businesses, said that the AACA supports SB 105 and
believes that without passage of the bill, economic burdens at
several tiers will impact the air carriers in the AACA. The
AACA's certificated carriers ensure a high level of safety when
they operate, she assured the committee, as well as fairness to
all of their employees, and have operated in full compliance
with the DLWD's 1986 position. Additionally, the AACA feels
that [a failure to adopt SB 105] will dramatically alter the
contractual relationships and expectations between government
entities, such as the United States Postal Service, and other
service providers that continue to serve communities around
Alaska. An informal poll conducted a few years ago by the AACA
regarding how pilots were paid revealed that flight crews in
various Alaska-based companies preferred "the exempt status."
In conclusion, she reiterated that the AACA supports passage of
SB 105.
6:16:53 PM
REPRESENTATIVE KOTT said there seems to be some controversy or
misunderstanding over the DLWD's position regarding whether
pilots are exempt from "the overtime law."
GREY MITCHELL, Director, Central Office, Division of Labor
Standards & Safety, Department of Labor & Workforce Development
(DLWD), offered that the confusion probably stems from the fact
that there are two different questions being asked. One
question is whether pilots in general are exempt due to federal
preemption, and that is federal preemption based on two
different concepts: one is found in the Railway Labor Act, and
the other is found in the commerce clause of the U.S.
Constitution and limits states, in certain circumstances, from
establishing laws that tend to impinge on interstate commerce.
The other question is whether "these pilots" are exempt because
they qualify as professionals.
MR. MITCHELL offered his belief that the Department of Law's
1980 memorandum only applies to the two preemption questions,
but does not address the question of whether "these employees"
fit within the recently enacted provision that essentially
covers all air carriers that are subject to the Railway Labor
Act, and noted that the only air carriers subject to the Railway
Labor Act are those that are interstate air carriers or those
that have a contract to carry the U.S. mail. It is hard to
imagine that all air carriers in Alaska don't qualify for the
exemption under the Railway Labor Act, that there would be an
air carrier in Alaska that isn't engaged in interstate commerce,
he remarked, and suggested that the question being addressed by
the Hageland litigation is whether the pilots named in the
litigation qualify for an exemption as professional employees.
He pointed out that in order to qualify as a professional
employee, one must be paid on a salary- or fee-basis; thus being
paid by an hourly method or a daily method could, in most cases
- unless one is paid a daily rate of at least $300 - preclude a
person from being considered a professional employee.
REPRESENTATIVE KOTT used a hypothetical example wherein one of
his employees claims that he isn't complying with the [Alaska]
Wage and Hour Act, and asked what the DLWD's procedure would be
in such a situation.
MR. MITCHELL said that DLWD would first contact the employer and
notify him/her that a claim had been filed and ask for a
response; then, depending on what the employer's response is,
the DLWD might perhaps file a claim in court. He offered that
unless the employee is a child and is performing dangerous work,
the DLWD would not resolve such a situation via an injunction.
MR. MITCHELL, in response to questions, reiterated his belief
that the DOL's 1980 memorandum does not address the question of
whether a particular pilot qualifies for the professional
employee exemption.
REPRESENTATIVE GARA asked whether the 1980 memorandum gave air
carriers the idea that they didn't have to pay pilots overtime.
MR. MITCHELL said it would have as long as certain conditions
were being met. As a result of the 1980 memorandum and
additional clarification provided via a 1984 DOL
opinion/memorandum, the DLWD created a "decision tree" that
works through a set of questions. The first question is whether
the carrier is an interstate carrier; if it is, then the
[Alaska] Wage and Hour Act doesn't apply due to the commerce
clause. If the air carrier is not an interstate air carrier,
then the question becomes whether the air carrier transports the
U.S. mail; if it does, then [Alaska] Wage and Hour Act does not
apply as long as the employee is subject to the Railway Labor
Act, which generally includes any worker engaged in either
interstate commerce or in the transport of U.S. mail. If an
intrastate air carrier doesn't carry the U.S. mail, then the
question becomes whether the worker is a member of a flight crew
covered by a collective bargaining agreement; if the employee
isn't, then the [Alaska] Wage and Hour Act applies, but if the
employee is covered by a collective bargaining agreement, "then
we're back to this Railway Labor Act preemption issue," he
concluded, "and there wouldn't be coverage."
6:27:44 PM
MR. MITCHELL, in response to questions, reiterated that once the
federal preemption issues are addressed, then the issue of
whether an employee qualifies for the professional employee
exemption must still be addressed.
REPRESENTATIVE GRUENBERG asked for clarification regarding
employees that are covered by a collective bargaining agreement.
MR. MITCHELL reiterated that the [Alaska] Wage and Hour Act
would apply to employees who are not covered by a collective
bargaining agreement.
[CSSB 105(L&C) was held over.]
ADJOURNMENT
The House Judiciary Standing Committee was recessed at 6:33 p.m.
to be continued at 3:00 p.m. on April 7, 2005.