SB 135-METROPOLITAN PLANNING AUTHORITY [This is a continuation of the May 17, 1999 meeting which was recessed to the call of the chair.] CHAIR MASEK announced that the only order of business would be CS FOR SENATE BILL NO. 135(FIN)(title am), "An Act relating to metropolitan planning organizations." She noted that Senator Donley had a new committee substitute (CS) for the committee, but she wanted to first take testimony from those who wanted to testify at yesterday's hearing on May 17, 1999. Chair Masek reminded the committee that the motion to adopt the CS labeled LS0785\K, Utermohle, 5/16/99 is still before the committee. She indicated that discussion should be directed to Version K. Number 0112 DENNIS POSHARD, Legislative Liaison/Special Assistant, Office of the Commissioner, Department of Transportation & Public Facilities (DOT/PF), clarified for the committee that "... 23 U.S.C. 134 states that an MPO is designated, by agreement, among the governor and units of general purpose local government." Therefore, the municipality and the governor must agree to changes in the metropolitan planning organization (MPO) membership. He informed the committee that Governor Hammond originally designated Anchorage as an MPO in 1976. At that time the policy committee was designated as the mayor, one municipal councilman or assembly member, and the commissioner of highways. Later Anchorage was designated as a non-attainment area for carbon monoxide. In 1978 Governor Hammond designated the Municipality of Anchorage as the lead organization to develop and implement a plan for achieving air quality standards. At that time, the Department of Environmental Conservation (DEC) and the Municipality of Anchorage, signed an agreement which expanded the MPO policy committee by one municipal assembly member as well as adding the commissioner for DEC. These agreements remain effective. Mr. Poshard stated, "In addition, 23 C.F.R. 450.306 states, 'To the extent possible, the MPO designated should be established under specific state legislation, state enabling legislation, or by inner-state compact and shall have authority to carry out metropolitan transportation planning.'" However, the code does not require state legislators be represented on the MPO nor does it require that the MPO be designated in statute. Number 0306 MR. POSHARD reviewed the current structure of the MPO policy committee which consists of the Anchorage mayor, two assembly members, the regional director of DOT/PF, and a representative from DEC. The CS, Version K, would have the MPO policy committee consist of four members designated by the municipality, one Senator, one Representative, and one member appointed by the governor as well as DEC having a nonvoting member. Mr. Poshard did not believe it prudent, with Anchorage's air quality concerns, to change the DEC position to a nonvoting status. He indicated that Senator Donley addressed that matter yesterday, May 17, 1999. Additionally, the CS does not specify how the municipalities' representatives would be chosen. This is of concern because if those chosen are from a specific area there may be vested interest which would overshadow areawide interest. He indicated that may be resolved if the legislation specified how the municipal representatives are chosen. MR. POSHARD noted that, last year, the Anchorage Assembly passed a resolution in opposition to a similar bill, SB 259. From that resolution he paraphrased the following: WHEREAS, currently the municipality and the state have a balanced and cooperative working relationship in the development of transportation and air quality plans; and WHEREAS, 23 U.S.C. 134 states that a metropolitan planning organization is designated "by agreement among the governor and the units of general purpose local government;" and WHEREAS, the municipality and the governor must agree to any changes in the existing metropolitan planning organization's membership, and it is unclear as to the purpose and intent of the changes proposed in SB 259; and WHEREAS, the Environmental Protection Agency is in a process of designating Anchorage as a serious non-attainment area for carbon monoxide and DEC's representation on the policy committee is an important role; and NOW, THEREFORE, the Anchorage Assembly resolves: That the Anchorage Assembly opposes SB 259 which modifies the membership of and the state's participation in a metropolitan planning organization. CHAIR MASEK inquired as to how this legislation, if passed, would affect ongoing and future projects. MR. POSHARD said that he did not believe this legislation, whether passed this year or next, would have any affect on projects in terms of holding up or moving along any projects. He indicated that the bill is an attempt to improve communications between the Anchorage Metropolitan Area Transportation Study (AMATS) and the legislature as well as to provide the legislature more input into the AMATS process. Those are laudable goals, however, the legislation will not have any effect on projects in the short-term. Number 0679 REPRESENTATIVE HALCRO inquired as to the result of making the legislative members of the MPO advisory members rather than nonvoting members. MR. POSHARD pointed out that last year's SB 259, as introduced, only added two nonvoting members; one from the House and one from the Senate. The department did not oppose that version of SB 259 and felt that it may have improved communications with the legislature. REPRESENTATIVE KEMPLEN requested that Mr. Poshard explain the formation of the transportation improvement plan (TIP) and the state transportation improvement plan (STIP) as well as the timing. He wondered if there would be difficulty in maintaining a quorum, with two legislative members, since meetings would occur early in the year while the legislature is in session. MR. POSHARD deferred to Mr. Brigham who served on the technical advisory committee for AMATS for six years. Mr. Brigham is also a former Director of Transit for Anchorage. TOM BRIGHAM, Director, Division of Statewide Planning, Division of Transportation & Public Facilities, stated that typically the major AMATS STIP amendments have occurred in the first quarter of the year which coincides with the legislative session. Mr. Brigham commented that we are working hard to have the STIP revisions completed before legislative meetings for the sake of simplicity. He said that AMATS will almost always follow the state. In other words, the state will have a major STIP amendment which results in AMATS having a TIP a month to two months later. He guessed that the conclusion of that process would occur early in the legislative session, in the first couple of months. Number 0957 BILL CUMMINGS, Assistant Attorney General, Transportation Section, Civil Division - Juneau, Department of Law, stated that the CS, Version K, does not address the constitutional concerns. The department believes that the legislation violates the separation of powers doctrine and also represents dual office-holding which are both prohibited by the constitution. Mr. Cummings noted that has been the department's position with regard to the appointment of legislators to administrative bodies for about the last 20 years. He cited various such bodies in which the department has taken the aforementioned position. He identified the following cases as important to review: Bradner v. Hammond (ph), Warwick v. State (ph), and Begich v. Jefferson (ph). There has been a definitive legal interpretation on this matter from the supreme court. He acknowledged that there may be examples of legislators sitting on boards such as the Alaska Student Loan Corporation which was mentioned at the May 17, 1998 hearing. "At the time that was coming down, when that policy choice was made we said, 'This is probably unconstitutional and you ought not to do it.' But we don't make policy. All we can do is make very strong recommendations." Mr. Cummings strongly recommended that the legislation before the committee is unconstitutional. REPRESENTATIVE HALCRO asked if the legislative members were nonvoting members, would that violate the dual office-holding provision. MR. CUMMINGS said that such a structure would probably violate a strict interpretation of the dual office-holding provision. REPRESENTATIVE HUDSON asked how ex-officio status, such as is the case for the Alaska Seafood Marketing Institute, for the legislative members would be interpreted. MR. CUMMINGS said that he could not answer now because there are some complexities that would need to be reviewed such as where the agency lives and does this represent another office. Serving for free does not have any bearing because the Alaska Constitution prohibits a legislator from holding any other office or holding a position of profit. Under this legislation, even with ex-officio status, there would be a problem with regard to whether this would represent another office. REPRESENTATIVE HALCRO inquired as to when the prioritization at AMATS occurs. MR. BRIGHAM reiterated that the major amendments tend to fall in the first quarter or third of the year, but AMATS meets year round. Number 1227 REPRESENTATIVE KOOKESH commented that when there is concern regarding constitutionality, one must review those who would be willing to file an action to challenge the constitutionality. He emphasized that a voting member may create a constitutional challenge, but the odds of a challenge are lessened if the position is advisory or ex-officio. That is the balance necessary. REPRESENTATIVE KEMPLEN asked if there are examples of state officials serving on decision-making bodies for municipalities. MR. BRIGHAM pointed out that AMATS would be such due to the DOT and DEC representatives. MR. CUMMINGS pointed out that the difficulty is that this is an executive branch organization not a municipal organization and is much different than the Hawaii situation. SENATOR DONLEY, sponsor of SB 135, Alaska State Legislature, noted that the reason Alaska's MPO is in the executive branch is because it has never been placed in statute. Hawaii's MPO is in statute and therefore, is not an executive branch organization. Senator Donley turned to his CS which would retain DEC as a voting member and add one Senator and one Representative as in the original legislation. He clarified that the Senator and Representative would be voting members. Senator Donley recommended that the total membership for AMATS be increased to nine members in order to maintain a majority vote of the local community representatives. Therefore, five members would come from the local area. This recommendation addresses the concerns regarding regional interests. Under the present structure of the board this is also of concern, but there is a safeguard since any final plan from AMATS must return to the full Anchorage Assembly for approval. That would continue under the proposed structure. SENATOR DONLEY said, in response to Chair Masek, the Anchorage Assembly has not yet taken a position on this issue and the Anchorage Assembly chair did not think the matter would be before the assembly before the end of session. CHAIR MASEK said she believed it to be unfair for the Anchorage Assembly not to be able to review this legislation. Number 1520 SENATOR DONLEY commented that the vote last year on this matter was very close. He recognized that the new assembly members have not had the opportunity to review the pros and cons of this issue. He noted that the final version of last year's legislation was not opposed by the Mayor of Anchorage who seemed rather receptive to that final version. Furthermore, this legislation has been available since the beginning of the year. Senator Donley stated that the main concern of maintaining local control was accomplished by the Senate version. Therefore, he recommended increasing the number of local members to five in order to maintain local control. CHAIR MASEK asked if consideration had been given to the time and cost involved in having voting legislative members on the organization. Why should the number of members be increased? SENATOR DONLEY clarified that it is important to increase the membership, if the DEC member is to be maintained as a voting member. Senator Donley said that he did not feel it to be necessary, but if the department desires such that is fine. However, maintaining local control would necessitate increasing the membership by one in order to ensure that the city has the majority of votes. With regard to the issue of timing, Senator Donley pointed out that difficulty is solved by the last section of the legislation which specifies that the TIP will be prepared by January 15. He noted that Mr. Horn, Regional Director of DOT, told him there is no technical difficulty with that. It would be easy to anticipate the STIP allocation for AMATS and develop a contingency plan whereby the last item on the list would not be funded if there were not enough funds. CHAIR MASEK reiterated her question regarding the reasoning behind increasing the membership. She inquired as to why this is being pushed forward, if it will not be in effect and no difference will be experienced. Furthermore, Chair Masek expressed concern that everyone has not been allowed time to testify. SENATOR DONLEY stressed that this legislation would take effect and would not stop any ongoing project or project next year. This legislation would require legislative involvement in the process next year. He also stressed that the legislation includes an important provision requiring the TIP be provided by January 15. This would alleviate the difficulty in determining the capital budget when the TIP comes out in April or May. Number 1721 REPRESENTATIVE KOOKESH suggested that everything, but the last paragraph of this legislation should be deleted. The only concern heard has been in regard to the legislature not receiving the report in a timely fashion which would be covered by deleting all material, except the last paragraph. REPRESENTATIVE HUDSON understood that the CS would have the MPO consist of four public members, a Senate member, a House member, and an appointee from the governor. Representative Hudson indicated support of having an uneven number of members on a body. Furthermore, the original bill did not call for approval from the majority of the members of the governing body of each municipality. The CS before the committee includes that provision. He understood that provision to place the House and Senate members under the approval of the majority vote of the members of the governing body. Therefore, the municipalities would have a voice in the appointment of the House and Senate members. SENATOR DONLEY agreed that the CS before the committee, Version K, does do that. He clarified that under the CS before the committee the body would consist of four members serving on behalf of the municipality, a DEC member, a DOT/PF member, and two legislators with approval from the local government. REPRESENTATIVE HUDSON noted that body consists of eight members and therefore, increasing the local membership by one would achieve an uneven number of members, nine. Representative Hudson inquired as to Senator Donley's opinion of the provision requiring local approval of the legislative members. SENATOR DONLEY stated, speaking only to the CS, that he disagreed with requiring local approval of the House and Senate members. The legislative members would be chosen from their caucuses who should choose who represents them on the committee. Senator Donley commented, "Constitutionally, the ultimate responsibility is ours and not with them." REPRESENTATIVE COWDERY noted that three members of the House Transportation Committee are not from Anchorage. In response to the earlier question regarding why this legislation is necessary, he informed the committee that almost every community council meeting he has attended has had an issue that the public wants the legislature to solve. Representative Cowdery emphasized the need for the legislature to have a voice in AMATS. Number 1985 TIM ROGERS, Legislative Program Coordinator, Municipality of Anchorage, noted that he has not seen the CS. In general, the Mayor of Anchorage had no problem with the proposal last year. Mr. Rogers did not believe the Mayor has any problem with this year's proposal, in general. REPRESENTATIVE HALCRO commented that there have been concerns in his area regarding AMATS meetings and notification of those meetings. He asked if Mr. Rogers' office is working on ways to improve the AMATS process to be more open. MR. ROGERS agreed that there are always ways to improve, but he did not have any specific areas. Mr. Rogers concurred with Senator Donley's concern regarding the timing of the AMATS process and noted that is under review. REPRESENTATIVE KEMPLEN said, in response to Representative Cowdery, that he has been very involved in the community council arena. Representative Kemplen served on the board of the Fairview Community Council as well as being its Vice President and President for a number of years. Furthermore, he stated that he is very familiar with the municipal process with regard to the capital budget improvements as well as the manner in which the administration involves the community councils in developing their projects. Representative Kemplen emphasized that the process does work. For example, the street improvements in the Fairview neighborhood result from the community council's participation in the AMATS process. He acknowledged that AMATS is a bit complicated, but it does work for community councils. REPRESENTATIVE SANDERS stressed that although this may work for Representative Kemplen's community council, it does not work for Representative Sander's community council. The difficulty is not solving a problem, but rather receiving information. The public feels "something is going on" because the public does not know when there are meetings. Representative Sanders commented that he has been told to send those constituents to the meeting, but he doesn't know the time, place, or subject of the meeting. REPRESENTATIVE COWDERY said that he appreciated Representative Kemplen's comments, but pointed out that downtown Anchorage has all the roads and such. However, the outlying areas do not. This legislation is much needed for the overall area of Anchorage. REPRESENTATIVE KOOKESH commented that would be the same argument he would use when comparing rural Alaska to Anchorage. Representative Kookesh deferred to the wishes of the Anchorage members. CHAIR MASEK informed the committee that it has before it a motion to adopt a CS, Version K. Number 2278 REPRESENTATIVE HUDSON moved to withdraw his motion to adopt the CS, labeled LS0785\K, Utermohle, 5/16/99. There being no objection, the motion was withdrawn. REPRESENTATIVE HUDSON moved to adopt the CS, labeled LS0785\M, Utermohle, 5/17/99, as the working document before the committee. He requested unanimous consent. REPRESENTATIVE KEMPLEN objected. From the discussion, Representative Kemplen surmised that there appears to be some disagreement with regard to how best to proceed. He pointed out that there is no immediacy with this issue. Representative Kemplen suggested that the committee form a subcommittee to review the subject in more detail in order to develop a compromise to formally present to the committee. Representative Kemplen withdrew his objection. SENATOR DONLEY explained that the CS, Version M, would restore the DEC member to voting status which eliminates the argument supporting the need for a fiscal note. Version M proposes eight members, but Senator Donley suggested that the CS be amended to add one more public member which would bring the total local membership to five; thus, maintaining a majority of local votes. CHAIR MASEK clarified for the committee that there being no objection, Version M was before the committee. Number 2471 TOM CHAPPLE, Director, Division of Air & Water Quality, Department of Environmental Conservation, explained DEC's role on the committee. The department must develop an air quality plan for the state as well as Anchorage. A transportation plan is also developed. The air quality plan and the transportation plan must work hand-in-hand which is why DEC is involved in this committee. He noted that the department had submitted a fiscal note. TAPE 99-21 , SIDE B MR. CHAPPLE clarified that Version M which restores the DEC member's voting status eliminates the premise for the previously submitted fiscal note. Number 0020 MR. POSHARD commented that a total membership of eight, as specified in Version M, is not workable. Generally, a committee consists of an odd number of members. Mr. Poshard indicated that DOT/PF would maintain its objection to the legislation; this is not necessarily the manner in which to resolve the problems that have been mentioned. Subsection (b) which specifies the date of receipt of the report, may be helpful. Furthermore, making the legislative members nonvoting members may alleviate the constitutional concerns. Therefore, the department would probably withdraw its objection to having legislators as members of a policy council. He reiterated that the department did not oppose last year's SB 259 which merely added two nonvoting legislators. Mr. Poshard specified that subsection (a) is the main objection. REPRESENTATIVE COWDERY understood Mr. Poshard to recognize that there is a problem with the current system. He asked if Mr. Poshard had a better solution for the local communities. MR. POSHARD clarified that he was referring to the problems discussed throughout the legislative committee process. The concerns expressed by the House Transportation Committee are not that different from those expressed throughout the process. The two recurring points seem to be that the TIP is provided too late to be of help in preparing the capital budget and that there is a lack of communication between the policy council and the legislature. Mr. Poshard believed that adding a nonvoting member would improve communication and alleviate constitutional concerns as well as timing constraints with the meetings during session. Furthermore, subsection (b) which requires the TIP be submitted by January 15 may alleviate the TIP problem. Number 0156 REPRESENTATIVE COWDERY emphasized that the main problem has been the local community council which feels frustrated with the situation. They come to legislators for solutions and the legislators can only refer them to others. This legislation attempts to provide those folks with a voice in the process. MR. POSHARD said that he did not know whether adding two voting members would be any different than adding two nonvoting members, in terms of the legislators affect on the process. The process will remain the same in terms of the project development in Anchorage. REPRESENTATIVE KOOKESH commented that it may be problematic to have a legislative member sit on two bodies. He indicated the need to address the legality question. Having nonvoting legislative members would provide a dialogue between the legislative and municipal branches which could resolve the problem. Representative Kookesh believed that there should be more specific language with regard to how the legislative member will be chosen. Perhaps, it would be better for the Speaker of the House of Representatives and the President of the Senate to choose their respective member for the committee. Number 0281 REPRESENTATIVE HUDSON posed the following changes. He suggested changing the total membership of the MPO from eight to five. Of that five, he suggested that three be voting members designated by the municipalities within the area. One voting member would be the commissioner of DEC and one member would be appointed by the governor. The legislative members, one from the House and one from the Senate, would be ex-officio members. Subsection (b) would remain. Therefore, there would be a small committee which would have dominate membership from the municipality. The inclusion of the DEC commission as a voting member would eliminate the fiscal note and address the water and air quality concerns. The ex-officio legislative members would alleviate the separation of powers concerns. REPRESENTATIVE HALCRO stated that although the legislative members are nonvoting members, the ultimate vote remains through appropriations by the legislature as a whole. Representative Halcro believed that Representative Hudson had a good idea. SENATOR DONLEY said that the Senate would prefer that the legislative members be voting members, but this would be better than the current situation. Furthermore, the TIP deadline would remain which is very important. He suggested that the legislative members could be referred to as nonvoting members versus ex-officio members. REPRESENTATIVE KEMPLEN commented that it seems to be a workable compromise. Number 0514 REPRESENTATIVE HUDSON moved, after discussion and recommendations, to adopt the following amendment, labeled Amendment 1, to Version M: Page 1, line 8 Delete "eight voting" Insert "seven" Page 1, line 8 Delete "Four" Insert "Three" Page 1, line 11, following "designee," Insert "one voting member appointed by the governor," Page 1, line 11 Delete "three voting" Insert " two nonvoting" Page 2 Delete line 10 REPRESENTATIVE HALCRO asked if the committee wanted to specify who would appoint the member from the House and the Senate. REPRESENTATIVE HUDSON and CHAIR MASEK indicated the need to leave the language as it is. REPRESENTATIVE HUDSON moved that the committee adopt the aforementioned amendment. He requested unanimous consent. REPRESENTATIVE KEMPLEN asked whether the language referring to the member appointed by the governor should be more specific. He wondered if the language should instead refer to the governor's appointee as the commissioner of DOT/PF. The committee was of the consensus that being more specific was not necessary. Therefore, there being no objection, Amendment 1 was adopted. Number 0836 REPRESENTATIVE HUDSON moved to report HCS CSSB 135, labeled LS0785\M, Utermohle, 5/17/99, as amended out of committee with individual recommendations and the zero fiscal notes. He requested unanimous consent. There being no objection, HCS CSSB 135(TRA) was reported from committee.