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