Legislature(2017 - 2018)GRUENBERG 120
02/27/2018 10:00 AM FISHERIES
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HB 231-CFEC: BD. SALARY;STAFF CLASSIFIED SERVICE 11:16:31 AM CHAIR STUTES announced that the next order of business would be HOUSE BILL NO. 231, "An Act relating to the Alaska Commercial Fisheries Entry Commission; and providing for an effective date." 11:16:49 AM REPRESENTATIVE NEUMAN moved to adopt the proposed committee substitute (CS) for HB 231, labeled 30-GH1053\D, Bullard, 2/14/18 [Version D] as the working document. CHAIR STUTES advised that the motion could not be adopted as the committee lacked a quorum. [The committee proceeded as though the motion had been withdrawn.] 11:17:35 AM The committee took a brief at ease. 11:17:58 AM REPRESENTATIVE EDGMON moved to adopt the proposed committee substitute (CS) for HB 231, labeled 30-GH1053\D, Bullard, 2/14/18, as the working document. There being no objection, Version D was before the committee. [CHAIR STUTES listed the individuals available to testify.] 11:19:11 AM MATT GRUENING, Staff, Representative Louise Stutes, Alaska State Legislature, introduced himself. 11:19:16 AM MINTA MONTALBO, Special Assistant, Office of the Commissioner, Department of Administration (DOA), introduced herself. 11:19:23 AM MR. GRUENING stated that the proposed committee substitute (CS) for HB 231, Version D, represents efforts between the bill sponsor, the administration, representatives of the United Fishermen of Alaska (UFA), and the Commercial Fisheries Entry Commission (CFEC). He stated that the changes were a consensus of all parties. 11:19:50 AM MR. GRUENING referred to page 1, line 9, to Section 1 of HB 231. He stated that this reduced the number of commissioners on the Commercial Fisheries Entry Commission (CFEC) from three to two. He offered to explain more on this later. The next change occurred on page 1, lines 13-14, which specifies that a vacancy on the commission does not impair the ability of a single commissioner to exercise all powers of the commission. Since the proposed CS for HB 231 removed one commissioner, if a vacancy occurs, this gives the commissioner to exercise the full authority of the commission in adjudicatory proceedings, transactions, and day to day activities. MR. GRUENING directed attention to page 2, lines 3-5, which specifies that a single member of the commission constitutes a quorum. He stated that another change will be necessary in proposed Section 3. On page 2, line 3-6, the proposed CS for HB 231 read, "A single member [TWO MEMBERS] of the commission constitutes [CONSTITUTE] a quorum for the transaction of business, for the performance of a duty, or for the exercise of a power of the commission. MR. GRUENING explained that the intent was for this to apply for the transaction of business and the performance of duty when there was not a vacancy; but only when a vacancy occurred would it include the exercise of a power of the commission. He stated that further clarification was necessary to clarify which instances the single commissioner can exercise all powers of the commission and when the commissioner can transact business and perform duties. The sponsor wanted to avoid an instance in which there was not a vacancy and the commissioner was able to exercise the full powers on an adjudication simply when the other commissioner was not available. However, the sponsor would like a single commissioner to be able to transact business or perform his/her duties for day-to-day routine work. 11:22:23 AM REPRESENTATIVE NEUMAN related his understanding that a single commissioner would have the authority to sign off on matters. He expressed concern that the Governor would have the power to keep a position vacant and therefore one commissioner would have significant power. MR. GRUENING said that he had not had any discussions with the administration; however, he understood the concern. 11:23:22 AM MR. GRUENING directed attention to proposed Section 4, on page 2, lines 6-10, AS 16.43.060 of HB 231. He read from the document titled "CS HB 231 Explanation of Changes," which read as follows [original punctuation provided]: Section 4: Modified from original bill. This section maintains the current statutory salary at Range 27 for the commissioner serving as chair, as the chair is expected to perform additional duties and functions. The original bill reduced the chair's salary to a Range 24. The salary range for the second commissioner continues to be reduced from Range 27 to 24, as in the original bill. MR. GRUENING explained that the chair would have direct oversight of the other commissioner and would have the final say. Further, the chair would absorb the duties of the executive director. He further explained that the it seemed appropriate to leave the chair at a range 27, since the chair would have direct oversight, but to set the second commissioner at a range 24. 11:24:06 AM REPRESENTATIVE EASTMAN asked how the chair is currently selected and if that would be changed with the proposed HB 231. MR. GRUENING responded that the current chair is selected by the governor, but the current bill does not change that process. CHAIR STUTES responded that is correct. 11:24:39 AM MR. GRUENING said there were no changes to Section 5. He then directed attention to proposed Section 6, on page 2, lines 15-19 to proposed AS 16.43.119(f), which read as follows [original punctuation provided]: (f) In case of a tie vote between commissioners in an adjudicatory proceeding, the decision of the hearing officer is the final administrative decision of the commission subject to review by a superior court under AS 44.62 (Administrative 22 Procedure Act). MR. GRUENING explained that the process. Initially a hearing officer issues a decision and if the party seeking an adjudication appeals the decision it goes to the commissioner. In the event the two commissioners have a 1-1 tie, this language would allow for the original hearing officer's decision to become the decision of the commission. He clarified that this was due to removing one of the commissioners in statute. 11:25:33 AM MR. GRUENING stated that there was no change to Section 8 of the proposed CS for HB 231, Version D. This section matched Section 5, related to removing employees from exempt service, he said. MR. GRUENING said that there were no changes to Section 9 in the proposed CS for HB 231, Version D. 11:25:48 AM MR. GRUENING directed attention to proposed Section 10, to page 3, lines 14-16 of Version D. He explained that this language was added to satisfy Article 1, Section 15 of Alaska State Constitution, which specifies that the state cannot retroactively reduce someone's pay under the impairment of contract's provision. The current commissioner's salaries will remain at the current amount, but any reappointments would be made at the lower amount. 11:26:36 AM REPRESENTATIVE EASTMAN asked for clarification in the case that the governor appointed a new chair if the former chair's salary would be reduced. MR. GRUENING answered that he would defer to the Commercial Fisheries Entry Commission to respond. 11:27:39 AM FATE PUTMAN, Commissioner designee; Chairman, Commercial Fisheries Entry Commission (CFEC), Alaska Department of Fish & Game (ADF&G) introduced himself. REPRESENTATIVE EASTMAN related his understanding that the current Chair of the CFEC serves at a range 27. If the governor decided to appoint a new chair, would the former chair become a range 24. MR. PUTMAN related his understanding that the governor appoints the Chair of the CFEC to serve a two-year term. Once the two- year term is up, the governor could appoint a new chair and that person would serve at a range 24. 11:28:19 AM REPRESENTATIVE EASTMAN further asked whether it because the governor has appointed someone new as a chair that creates this change or if it was because that former chair's term was up, and the person was being reappointed to a new term. MR. PUTMAN answered no; that it was because the two-year term of that chairmanship was finished, even though the person could still serve on the commission for a four-year term. The chairmen serve for two years but could then be designated as a non-chairman once the chairmanship has run out and the person would serve as commissioner, he said. 11:29:00 AM REPRESENTATIVE NEUMAN asked for additional clarification on changes for exempt positions. He further asked for the staff level of the CFEC and whether this would affect them. MR. GRUENING responded yes. He deferred to Mr. Putman. 11:30:04 AM REPRESENTATIVE NEUMAN related his understanding that one of the sections [Section 5] would remove employees from exempt service. He asked whether the two [commissioners] would be exempt and how many staff the CFEC has and if they would be exempt. MR. PUTMAN responded that the two commissioners would remain in the exempt service and the staff would be classified, meaning unionized, if HB 231 was adopted. 11:30:39 AM REPRESENTATIVE NEUMAN said an issue raised has been the backlog of lawsuits and settlements. This bill would reduce the number of commissioners from three to two. He asked whether there was there a proposal or other remedy to rectify this issue. MR. PUTMAN stated that it is the intent of the chairman and staff to resolve the outstanding cases at the CFEC. He estimated the backlog at 13 cases pending from 25-35 years ago. He emphasized his intent to review and resolve these cases through settlement with the potential appellees. He explained that when the cases are pending each of the appellees receive an interim-use permit, which allows them to fish until their cases are resolved. He reported that two cases have been resolved. He reiterated his intent to resolve the remaining 13 cases within the next year or two. 11:32:00 AM REPRESENTATIVE NEUMAN raised the matter of authority over staff. He asked whether the bill changes the authority of the chair. He asked for further clarification on how staff would be managed and the structure of the CFEC as it falls under the ADF&G. MR. PUTMAN stated that when employees move from exempt to classified status, they are protected through the collective bargaining agreement; however, exempt employees can be hired and fired at will. Classified employees are subject to a process, including progressive discipline before they can be terminated. He stated that the chairman will serve as the executive director and he/she would make determinations about hiring and recommendations for firing of underperforming staff. 11:33:26 AM MR. GRUENING said he had finished with the changes. 11:33:42 AM CHAIR STUTES referred to an earlier comment on a 1-1 tie. She pointed out that there was an appeal process and the party can appeal to the superior court. 11:34:10 AM MS. MONTALBO gave a section-by-section analysis of HB 231. She directed attention to Section 1, which would reduce the number of commissioners appointed to the Commercial Fisheries Entry Commission (CFEC) from three to two, she said. MS. MONTALBO directed attention to Section 2, to AS 16.43.030(c), which would allow a single commissioner to exercise the powers and duties of the commission, when there is a vacancy on the commission. MS. MONTALBO directed attention to Section 3, which will need to be amended, as Mr. Gruening previously mentioned but for now this change addresses the need to establish a quorum of one commissioner. MS. MONTALBO directed attention to Section 4, which would amend AS 16.43.060, which would provide that the member serving as chair will be paid a step in Range 27. It would also adjust the salary range from 27 to 24 for the other commissioner. 11:35:06 AM MS. MONTALBO directed attention to Section 5, which would amend AS 16.43.080(a), by removing language placing employees of the commission in the exempt service. MS. MONTALBO directed attention to Section 6, which adds a new subsection (f) to AS 16.43.110, which would provide that tie votes between commissioners will be settled by the hearing officer. MS. MONTALBO directed attention to Section 7, which would amend AS 16.43.960(d) to allow for cause hearings to be conducted before one commissioner and a hearing officer. 11:35:40 AM MS. MONTALBO directed attention to Section 8, which repeals AS 39.25.110(11)(D). She referred to the statute text being repealed under subparagraph (D) of AS 39.25.110(11), which read as follows [original punctuation provided]: Sec. 39.25.110. Exempt service. Unless otherwise provided by law, the following positions constitute the exempt service and are exempt from the provisions of this chapter and the rules adopted under it: (11) the officers and employees of the following boards, commissions, and authorities: (A) [Repealed, Sec. 13 ch 43 SLA 1994]; (B) Alaska Permanent Fund Corporation; (C) Alaska Industrial Development and Export Authority; (D) Alaska Commercial Fisheries Entry Commission; (E) Alaska Commission on Postsecondary Education; (F) Alaska Aerospace Corporation; (G) [Repealed, Sec. 23 ch 11 SLA 2013]. MS. MONTALBO mentioned that change goes along with transferring employees from exempt service to classified service. 11:36:08 AM MS. MONTALBO directed attention to Section 9, which would add transition language to uncodified law, which stipulates commission staff members will be appointed to classified services upon the bill's effective date; and if the classified position has a lower rate of pay, a staff member's salary will be held at the rate received in exempt service until such time as the classified rate meets it. MS. MONTALBO directed attention to Section 10, which adds an applicability clause to uncodified law to stablish that salary changes outlined in Section 4 of this bill will apply to commissioners appointed after the bill's effective date. MS. MONTALBO directed attention to Section , which sets effective date as immediate. 11:37:02 AM REPRESENTATIVE EDGMON asked if there was any scenario in which a hearing officer could act as a tie breaker. MR. GRUENING offered his belief that the answer was no. He described the current process, such that the hearing officer makes an initial review, issues a decision, which is forwarded to the [CFEC] commissioners who make an adjudication. He said there was not any process in which the hearing officer casts a final vote in a tiebreaker. He explained at that point it would be decided by the superior court. 11:38:02 AM REPRESENTATIVE EDGMON offered his belief that it would violate the chain of due process, if that were to occur. 11:38:12 AM REPRESENTATIVE EASTMAN said he noticed that it has been customary for courts and even this committee to have an odd number of members to resolve the potential of tie votes. He asked why not just go to one commissioner. MR. GRUENING responded that only having one commissioner would result in only one point of view, which could lead to room for abuse. He said that there was a certain value to having more than one commissioner since the second commissioner could raise a different point of view. He characterized it as being a little "heavy handed" to have only one commissioner set in statute. 11:39:23 AM CHAIR STUTES opened public testimony on HB 231 and after first determining no one wished to testify, closed public testimony on HB 231. She asked to set HB 231 aside. [HB 231 was held over.]