HB 152-ORGANIZED MILITIA; AK ST. DEFENSE FORCE  4:18:31 PM CHAIR MEYER called the committee back to order and announced the consideration of House Bill 152 (HB 152). 4:19:02 PM KENDRA KLOSTER, Staff, Representative Tuck, Alaska State Legislature, Juneau, Alaska, provided an overview of HB 152 as follows: This bill is part of a series of bills for updating our Alaska Military Code. Our military code was in 1955 and we are just starting to work on updating it now, so a lot of it has been out of date. So, this is one of four bills going through the Legislature this year to help update that code. House Bill 152 will help ensure organized militia's four components, which is the Army Guard, Air Guard, Alaska State Defense Force, and Alaska Naval Militia, have an efficient military force to respond to the needs of Alaskans. A couple of the key parts of this bill is clarifying that the adjutant general (TAG) has control and command of the organized militia under the direction of the governor as the commander and chief. The TAG already possesses statutory control over the organized militia, but this bill will clarify command. Command and control are important functions in any military organization. Commanders are set for the response of the organizations' priorities, goals, missions, while people have the authority to direct people to accomplish those missions; it's logical, however it is not clearly set in statute, so this is one of the clarifications in House Bill 152. This will also ensure that the adjutant general has the ability to adopt regulations as needed, it clarifies and lists that the Alaska State Defense Force may exist only with the express consent of the U.S. Congress. House Bill 152 will also streamline some of the day-to-day matters; for example, the TAG can be able to accept resignations of commissioned officers or place the name of commissioned officers on a retirement list, right now it can go through the governor, but we are moving that to the adjutant general. This also relaxes the requirement from militia units to be served by an active armory. So, right now the Department of Military Veterans' Affairs is trying to grow that. Currently in some of our small communities it doesn't necessarily make sense to build an armory before we can have some of our State Defense Force members there, it's just not needed at this point and it costs a lot of money to build an armory, so that part is being removed. There's a tuition assistance program for organized militia, we are adding the Alaska State Defense Force to that statute. We are not increasing the fiscal note or asking for any money for this, it's just allowing to make sure that all members of our organized militia are listed under there for the opportunity if money does become available for tuition assistance. Some of the changes that came out of the House, there was some concerns over parts of the bill which were removed and that was imminent authority going to the adjutant general in certain times, I just want to explain the history of how we got to this version. In the first version it would expand the ability of the TAG to call in an organized militia when the governor was unavailable; for example, if he was unreachable and we had another big earthquake and we couldn't get ahold of the governor, the TAG would have been able to call in an organized militia; at this time they cannot do that you have to get ahold of the governor, but there are a lot of concerns over that so we removed that part, going to go on more discussion on that and so that was really the major change in the State Affairs Committee that was made. 4:22:51 PM CHAIR MEYER asked if the bill was brought forward at the request of the governor. MS. KLOSTER answered that the bill is a committee bill that Military and Veterans' Affairs worked on with the governor's office. CHAIR MEYER pointed out that the governor would be delegating some of their authority to the adjutant general. MS. KLOSTER provided a sectional analysis as follows: Section 1  Clarifies control and command of the organized militia. Section 2  Describes the circumstances under which a governor may order the organized militia into active state service. Section 3  Describes when the adjutant general may call the organized militia into active state service but reviewed by the governor. Section 4  Clarifies existing law specifying the Alaska State Defense Force may exist only with the expressed consent of the U.S. Congress. Section 5  Adds the Alaska State Defense Force to the organized militia definition. Section 6  Establishes the adjutant general and the assistant adjutant generals are subject to regulations under the chapter and paid according to state law. Sections 7-9  Authority going from the governor to the adjutant general to allow the adjutant general to accept resignations and add commissioned officers to the retired list. Section 10  Relaxes the authority to not have to build an armory when expanding the Alaska State Defense Force. Section 11  Allows the adjutant general to authorize when funds are available for the tuition assistance program; or adding in the Alaska State Defense Force with the Air Guard, Army Guard, and Naval Militia for eligibility under the tuition assistance program. Section 12  Specifies regulations adopted in the statute cannot be contrary to federal law. Section 13  Directs regulations adopted under the statute must conform when governing by the armed forces of the United States. Section 14  Allows the governor to delegate authority and provide a sub-delegation except for the powers given to the governor to convene a general court-marital. Section 15  Repeals existing statute which is no longer necessary or amended because of the bills that are currently going through. 4:26:33 PM CHAIR MEYER addressed section 4, lines 29-31 regarding members of the Alaska State Defense Force performing inactive duty or training and pointed out the line, "Shall receive benefits if they suffer an injury or disability." He asked if lines 29-31 was new and a possible cost to the state. MS. KLOSTER answered that lines 29-31 were also part of conforming language. She noted that another bill was coming through the Legislature that dealt with the part lines 29-31 addressed. She noted that the statute relates to "pay and allowances, AS 26.05.260." CHAIR MEYER reiterated that he wondered if there would be an impact on the fiscal note. 4:28:20 PM SENATOR COGHILL addressed section 2, "The organized militia may not be used against to mitigate a lawful activity including organized labor." He asked if the verbiage was something new as a policy call or something conforming to a policy call that already exists regarding organizing. MS. KLOSTER replied that the part Senator Coghill referenced was moved from another section and cleaned-up in the Military and Veterans' Affairs Committee where language was added to ensure the organized militia would not be sent out for lawful activities. CHAIR MEYER asked what would happen if the lawful activity became unruly. SENATOR COGHILL specified that the section says, "lawful activity." He asked if the section was already in statute and if it was a policy that has already been enforced and contemplated or if it was new. MS. KLOSTER explained that section 2 used to be much larger and a lot of language was moved around via statute clean-up. SENATOR COGHILL asked Ms. Kloster to address the "repealers" in section 15. MS. KLOSTER detailed as follows: AS 26.05.170  A relationship between the governor and adjutant general regarding control and command of the organized militia. AS 26.05.235  Mandatory annual active duty training at sites other than regular bases. AS 26.05.340  Use of organized militia against labor organizations. AS 26.05.340(d)  Necessary regulations adopted by the adjutant general and approved by the governor. She noted that the sections addressed for AS 25.05.340 were repealed and reenacted in another part of the bill. SENATOR COGHILL asked if the sections address the authorities of those taking place but were rewritten. MS. KLOSTER explained that a lot of the bill is cleaning up the statute at the same time. 4:31:43 PM REPRESENTATIVE CHRIS TUCK, Chair of the House Military & Veterans Affairs Committee, Alaska State Legislature, Juneau, Alaska, said HB 152 clearly defines the control authority and the command authority between the governor and the adjutant general. He noted that Title 26 has not been changed since 1955. He detailed that the first change occurred three years ago with the Military Code of Justice and followed by a series of bills to make it flow evenly so that everyone understands what their roles are. CHAIR MEYER pointed out that HB 152 has a zero fiscal note. He reiterated that there seems to be the possibility that costs are being added, specifically in section 4 regarding disability while on the line of duty. He remarked that the zero-fiscal note may be attributed to the fact that injury was not being anticipated. MS. KLOSTER disclosed that Representative Tuck has a bill going through the Legislature where the Alaska State Defense Force is covered for while on active-duty status for workers' compensation. She detailed that the proposed bill, HB 126, would include workers' compensation for training as well. She added that HB 126 has a zero-fiscal note. She reiterated that the three bills moving through the Legislature intermingle with one another, so HB 152 is part of the conforming language between the bills. 4:34:24 PM CHAIR MEYER asked if the three bills are a "package deal." REPRESENTATIVE TUCK replied there is a package of five or six bills. MS. KLOSTER detailed that there are three bills sponsored by the Military and Veterans' Affairs Committee and there is one that is also the Alaska Code of Military Justice update, so there are four bills going through the Legislature to clean up the statutes. She explained that the intent was to break up the legislation into pieces due to complex issues that were going on. SENATOR GIESSEL referenced section 4 regarding the liability issue and pointed out the reference to, "Or community service." She asked if the reference to community service was also covered or was being added. REPRESENTATIVE TUCK explained as follows: Right now the Alaska Defense Force, I believe, are covered under community service but when they are performing in active duty or training, that's where we are covering them in case they get hurt because we are still obligated but they are not covered under the workers' compensation, it really costs us a lot more when we have to pay right out without having insurance coverage for them, so it encompasses them for all of those activities now. CHAIR MEYER noted previous testimony on section 4 regarding liability concerns and asked Mr. Duffy from the Alaska Department of Military and Veterans' Affairs if he anticipated any costs associated with liability. 4:36:13 PM BRIAN DUFFY, Administrative Services Director, Alaska Department of Military and Veterans' Affairs, Joint Base Elmendorf- Richardson (JBER), Alaska, answered questions regarding HB 152 as follows: The only cost we have seen to date with members of the Alaska State Defense Force being injured while in service of the state but not on state-active duty was one incident and I think it was a tort claim that was settled for about $50,000, maybe with additional fees for legal services to the department. We don't anticipate a significant cost, it's a bit hard to judge but what we will be able to gain through the other legislation Ms. Kloster mentioned is coverage for those members when they are in non-active-duty status, but they are acting in service of the state. SENATOR COGHILL addressed section 2 related to an organized militia not being allowed to be used against or to mitigate a lawful activity including an organized labor activity. He asked if the legislation rewrites something that has already been done. 4:38:46 PM MR. DUFFY replied as follows: You've seen other improvements covered elsewhere, the Alaska Code of Military Justice affords the adjutant general and chain of command opportunity to correct behavior of the likes of which you described which are counter to good order and discipline within the National Guard. SENATOR COGHILL asked if addressing organized labor as a lawful activity was done for the first time. MR. DUFFY answered as follows: The intent here really is to ensure that it is codified in statute that the elements of the militia cannot be called into service to counter lawful activities that are being done in the state. SENATOR COGHILL asked if there was organized labor within the state's militia. 4:40:09 PM REPRESENTATIVE TUCK specified as follows: This section is dealing with any type of lawful activity that civilians may be performing, whether it's a demonstration, a march or any other lawful activity including organized labor activity. I think we've seen in the history in the past, especially in the turn of the 19th century, organized militia was used against [lawful activities]. SENATOR COGHILL remarked as follows: I remember people putting flowers in guns at Kent State. What I was wondering is would it ever be used to prevent organized labor from saying," Well, we're flight-line operators and we want to organize," and I just didn't know if that was even within the realm of possibility within our militia? REPRESENTATIVE TUCK replied as follows: That's a very good question because in the 1980s we had the Professional Air Traffic Controllers Organization (PATCO) strikes and at that time the president said to return back to work according to law and according to collective bargaining agreements. I don't think organized militia was used or any type of militia was used to enforce collective bargaining agreements or to force people to return back to work because it is a lawful activity to not have to return back to work, but they did feel the consequences of being terminated as a result of that. I don't know of any time in history where people were forced to return back to work. I can tell you that the Sherman Anti- Trust Act one time had looked at any type of monopoly including a loose monopoly in organized labor and if you withheld or held back on commerce, labor was considered commerce at the time, so you could be jailed for not working; later on, there was an amendment to the Sherman Anti-Trust Act that removed labor from that so you that you couldn't use that as a means of forcing people to go to work. 4:42:27 PM SENATOR COGHILL asked if there was any organized labor within the state's militia force and would they then be in a cross- tension within the militia itself. REPRESENTATIVE TUCK replied that he did not know. He noted that military and agricultural workers are exempt from the National Labor Relations Act. MR. DUFFY explained as follows: There are no organized labor elements within the uniformed portions of the organized militia. The non- uniform, normal state employees, certainly there are bargaining units that govern them and if by chance a member were to refuse his or her assigned duties or refused to report, refused to preform, those are matters the chain of command would take up in accordance with the Alaska Code of Military Justice. SENATOR COGHILL responded as follows: That's what I was looking for, I didn't know what that tension within the organization would be. I appreciate the fact that we don't want to use the military to intercede lawful civic activities. 4:43:59 PM CHAIR MEYER remarked that the section dealing with the organized militia appears to have been amended in Military and Veterans' Affairs. REPRESENTATIVE TUCK answered yes and noted that sections were moved in the committee while making sure organized labor activities were still included. MS. KLOSTER concurred and specified that organized labor was moved from one section to another and amended in the Military and Veterans' Affairs Committee to clean up the language. SENATOR EGAN noted that he served in the National Guard while serving as a union worker and state employee in civilian life. REPRESENTATIVE TUCK pointed out that Senator Egan served in the capacity of a collected bargaining agreement as a union worker in civilian life and then was called into active duty. He noted that Mr. Duffy said serving in any type of organized militia with a bargaining agreement is not allowed. 4:46:19 PM CHAIR MEYER announced that public testimony would be left open. He referenced a letter submitted by Mr. Wood regarding his concern that too much authority was being delegated to the adjutant general. REPRESENTATIVE TUCK answered as follows: There was a section that we had in the bill, it was allowing the adjutant general to act on behalf of the governor when the governor was incapacitated in any way, within up to 72 hours; for example, we almost had that situation with the recent earthquake at Kodiak and tsunami warnings where the governor was about to board an airplane, if he wasn't able to be reached we were giving permission for the adjutant general to act on behalf of the governor because we may not have time to actually reach the governor and if the lieutenant governor is not available, there's a little bit of delay of saying that the governor is incapacitated and then swearing in the lieutenant governor; a lot of people had problems with that section, so we went ahead and removed that. SENATOR EGAN recalled when the adjutant general was lost in a plane crash when responding to the 1964 earthquake. REPRESENTATIVE TUCK replied that Senator Egan's example was the reason why the previously noted provision was initially in the bill but later removed. MR. DUFFY addressed Mr. Woods' letter and commented as follows: I would just offer one thought to the committee members, the changes that are proposed in this legislation, although they enhance the ability of the adjutant general to perform command and control activities, at no point is the authority of the governor compromised, it remains supreme the entire time. 4:49:40 PM CHAIR MEYER held HB 152 in committee.