SB 127 PERSONNEL RECORDS OF ALASKA RAILROAD  Number 001 CHAIRMAN WARD called the Senate Transportation Committee meeting to order at 1:30 p.m. and introduced SB 127 as the first order of business before the committee. JERRY BURNETT , Staff to Senator Randy Phillips, read the following sponsor statement: Senate bill 127 provides for public inspection of personnel records of employees of the Alaska Railroad. Through a combination of current statute and corporation rules, the compensation paid to a railroad employee is confidential and therefore cannot be disclosed to the public. Current statute provides that the corporation may, by rule, designate and withhold public disclosure of matters of a privileged or proprietary nature. Statute goes on to describe matters as including personnel records. Corporation rules include salary as a personnel record. There is no other state government agency that, at a minimum, will not disclose basic employee information such as the name, position, compensation, and dates of appointment and separation. Senate Bill 127 makes the necessary public policy changes in statute to place the Alaska Railroad Corporation under substantially equivalent language that every other state agency operates. Mr. Burnett used himself as an example. Mr. Burnett is a range 21 employee and that information is public, but would not be if Mr. Burnett worked for the Alaska Railroad. CHAIRMAN WARD asked Mr. Burnett if the ARRC was the only component of the government which does not allow employee salary to be public information. JERRY BURNETT said that was correct, basic employee information of other government entities is public information. SENATOR WILKEN inquired as to why this information is necessary since the state tries to hold ARRC as a private corporation. JERRY BURNETT provided the following example. There was a comparability study in 1992 by the Division of Legislative Audit which reviewed the pay of executive directors of various state agencies. The division could not report the compensation of the railroad. SB 127 does not attempt to make those confidential portions of an employee's record public. Is there a reason for a publicly owned entity to hold its compensation private? Number 081 SENATOR GREEN referred to page 2, line 21 when asking if paragraph (3) should only refer to current employees or present and past employees. JERRY BURNETT clarified that this includes the position and title of current employees and prior positions. SENATOR GREEN asked if paragraph (3) should have language that applies to current employees as well as previous employees. Would this open all records? JERRY BURNETT did not know. Mr. Burnett believed that this legislation would allow one to know who was present five years ago also, but an attorney would be able to clarify. CHAIRMAN WARD noted that Phyllis Johnson, General Counsel for ARRC is on line for questions. SAM KITO III , Special Assistant for DOT/PF, informed the committee that he would offer testimony on behalf of ARRC. ARRC believes that SB 127 is unnecessary and is an invasion of privacy of its employees. If SB 127 is enacted, ARRC would recommend that several items within the legislation be addressed in more detail. Mr. Kito said that the disclosure of ARRC employee salaries seem to be the intent of SB 127. ARRC is unaware of refusing to confirm that an individual works for the corporation and the position held by that individual. In response to past legislative inquiries, ARRC has provided salary ranges for positions. Mr. Kito said that ARRC has been willing to make all corporation files available for the necessary scrutiny by the Division of Legislative Audit with the understanding that the professional standards of confidentiality apply. Therefore, legislation on this subject is unnecessary. Mr. Kito emphasized that SB 127 is an effort to subject ARRC employees to the same level of public publicity as state employees. ARRC employees are not state employees and do not have any of the considerable benefits of state employment. SB 127 would subject ARRC employees to the burdens of state employment without any of the benefits. This is fundamentally unfair. Mr. Kito said that other than public curiosity, it is difficult to discern the public need SB 127 would satisfy. ARRC is mandated by statute to operate as if a private corporation. Most private employees expect salary to be no one's business, but their own bosses. Disclosing such information would violate the understanding under which ARRC hires its employees. Mr. Kito noted that disclosure of this information may have an effect on future hire and serves no useful public purpose. Number 176 Mr. Kito suggested that clarification and review of the provision removing personnel records from the list of matters ARRC can designate as confidential is necessary. SB 127 removes all authority the ARRC has to adopt rules that would make a portion of the personnel file confidential. Mr. Kito did acknowledge that Section 3 does include some authority, but does not provide for protection of other documents typically found in personnel files such as medical records, disciplinary records, and performance evaluations. SB 127 does not contain any language suggesting that documents other than those specified would remain confidential. Mr. Kito was concerned that without additional language, documents that should remain confidential could become public record. SENATOR LINCOLN asked if all the language in SB 127 was new. SAM KITO III deferred to Ms. Johnson. JERRY BURNETT clarified that the underlined portion in Section 1 is new language, Section 3 is new, and the amendment in Section 2 removing personnel records is new. SENATOR LINCOLN inquired as to why this information would not be available for public knowledge. PHYLLIS JOHNSON cited the impact on current and future employees as the reason ARRC would not want this information to be public. As Mr. Kito stated, there is an expectation among employees that these matters are private. Ms. Johnson believed that prospective employees from private industry could be dissuaded from accepting a position with ARRC if this information is available to the public. SENATOR LINCOLN inquired as to the negative impact on employees. PHYLLIS JOHNSON believed that SB 127 would have a negative effect on recruiting because many people do not wish to have their salary be public information. For the existing employees, these employees have an expectation of privacy in this area. Number 252 CHAIRMAN WARD inquired as to the items that would be in the personnel file. PHYLLIS JOHNSON noted that some things, such as medical records, are kept separate from the personnel file due to ADA standards. Disciplinary records for union employees and non union employees both result in something in the personnel file. Some of the labor agreements contain confidentiality provisions for disciplinary matters. Performance evaluations, change of action documents, and personal information of the individual and the family is included in the personnel file. Ms. Johnson noted that other items are in the file as well. JERRY BURNETT pointed out that Section 3 clearly states that all matters not specified in the personnel record of employees, including employment applications, resumes, and documents submitted in support of an employment application are confidential and not open to public inspection. Under SB 127, the only things subject to public inspection are the names and position titles of all employees, the position held by an employee and any prior positions, dates of appointment and separation, and compensation paid or authorized. Mr. Burnett emphasized that none of the items mentioned by Mr. Kito or Ms. Johnson would be open for public inspection. In response to Senator Wilken, PHYLLIS JOHNSON said that her title is General Counsel and Vice President for ARRC. SENATOR WILKEN asked Ms. Johnson if ARRC informs some state agency of salaries, etc. PHYLLIS JOHNSON did not know of any agency that the ARRC routinely informed of such information. In past years, ARRC has responded to requests by certain legislators. Ms. Johnson said that at least once, a print out of ranges for various divisions has been provided. ARRC does not specifically identify the salary of a particular employee. In further response to Senator Wilken, Ms. Johnson agreed that ARRC would provide lettered and numbered ranges specifying a high and low end of the range. Ms. Johnson suggested adding the language "including, but not limited to" when referring to the type of material not intended to be available for public inspection. Also the language referring to information that is available for public inspection should include "only". Number 333 SENATOR LINCOLN noted that SB 127 is at the request of the Legislative Budget & Audit Committee (LB&A). Senator Lincoln wanted to review the minutes of the meeting discussing this issue in order to determine why LB&A wanted this legislation. RANDY WELKER , Legislative Auditor, informed the committee that this legislation was spurred when the Senate Finance Committee asked LB&A to participate in overviews of the various departmental budgets. An overview of ARRC was prepared in which prior audits were discussed as well any other general observations. LB&A raised the issue of confidentiality of salary of ARRC employees. An audit report in 1992 on various boards and commissions, reviewed the salary and benefits package provided by the various CEOs, Executive Directors, and Presidents. The only one that LB&A was unable to publicly disclose was ARRC. Mr. Welker said that he had access to confidential records and can review the salary of any ARRC employee, but that information cannot be publicly disclosed. Through the overview process in Senate Finance, Senator Pearce and Senator Randy Phillips desired legislation to address this issue. Mr. Welker noted that SB 127 was not presented to the full LB&A committee, it was done per the prerogative of the Chairman. SENATOR LINCOLN asked Mr. Welker if in that audit, he could have disclosed the range of the positions. RANDY WELKER replied yes, but LB&A chose not to. In Mr. Welker's opinion, the public policy question was raised by not disclosing the range. SENATOR LINCOLN referred to page 2, line 16 when inquiring as to the definition of "examining materials". PHYLLIS JOHNSON said that a number of ARRC employees, who are subject to FRA requirements, are tested on track rules and other operating rules. Those tests are required to be maintained in the employee's file. Ms. Johnson supposed that it could also refer to physical examinations. SENATOR LINCOLN did not know the legal definition of "examining materials" and indicated the need to clarify. PHYLLIS JOHNSON agreed with Senator Lincoln. CHAIRMAN WARD held SB 127 until the next meeting. SENATOR WILKEN expressed difficulty in determining the benefit of SB 127. ARRC employees are not state employees and therefore, their salary should not be public. If the desire is to make ARRC a public corporation, that should be addressed. Senator Wilken objected to piecemealing away at ARRC. Senator Wilken did not see any benefit to this legislation.