Legislature(2009 - 2010)BELTZ 211

03/30/2009 01:30 PM Senate JUDICIARY

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* first hearing in first committee of referral
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= bill was previously heard/scheduled
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved SB 47 Out of Committee
          SB  48-MEETINGS OF ROAD SERVICE AREA BOARDS                                                                       
CHAIR FRENCH announced  the consideration of SB 48  and asked for                                                               
a motion to adopt the committee substitute (CS), version \P.                                                                    
2:28:56 PM                                                                                                                    
SENATOR  WIELECHOWSKI moved  to adopt  work draft  CS for  SB 48,                                                               
labeled  26-LS0293\P. There  being  no objection,  version P  was                                                               
before the committee.                                                                                                           
2:29:20 PM                                                                                                                    
SENATOR THERRIAULT explained that  this version narrows the scope                                                               
of  the bill.  It  now  applies to  only  municipal service  area                                                               
boards  that are  established whereas  an earlier  version talked                                                               
about other  boards and commissions  of a local  government. This                                                               
brings  it back  to the  original  concept, which  is to  provide                                                               
relief   [from   the  Open   Meetings   Act]   to  service   area                                                               
commissioners who are trying to  make decisions about things like                                                               
snow removal or protecting a  culvert from washing out. Under the                                                               
open meetings law these  mostly volunteer commissioners currently                                                               
are precluded from talking to one another.                                                                                      
2:30:29 PM                                                                                                                    
KATHY  WASSERMAN,  Executive  Director, Alaska  Municipal  League                                                               
(AML), said AML  has passed a resolution supporting  SB 48. While                                                               
AML  respects  and  supports  the  Open  Meetings  Act,  in  this                                                               
circumstance  it is  hampering  road and  fire  service areas  in                                                               
conducting business.  If two  people stop  alongside the  road to                                                               
discuss matters  related to that road  service area, it can  be a                                                               
violation  of  the  Open  Meetings Act.  This  bill  will  enable                                                               
business like plowing  a road to get done without  having to call                                                               
a meeting.                                                                                                                      
CHAIR FRENCH asked how many  municipal service area boards are in                                                               
the state.                                                                                                                      
MS. WASSERMAN  replied most  of them are  in the  Fairbanks North                                                               
Star Borough (FNSB).                                                                                                            
CHAIR FRENCH asked if Anchorage uses a different model.                                                                         
SENATOR THERRIAULT said Anchorage  has road powers. Service areas                                                               
are only formed  by neighborhoods or small  communities where the                                                               
borough government doesn't have general road powers.                                                                            
SENATOR MCGUIRE added that Hillside has a road service area.                                                                    
2:33:06 PM                                                                                                                    
CHAIR FRENCH  asked how  many members a  road service  area board                                                               
MS. WASSERMAN  replied as a  rule there  are three, which  is why                                                               
it's such  a problem. Under the  Open Meetings Act three  or more                                                               
members constitutes a quorum for  an assembly or council meeting,                                                               
but an advisory board meets quorum with just two people.                                                                        
CHAIR  FRENCH asked  Senator Therriault  if  Section 2  addresses                                                               
that issue.                                                                                                                     
SENATOR THERRIAULT  said he  believes so, but  he would  defer to                                                               
the   borough  attorney.   Years  ago   these  boards   had  five                                                               
commissioners, but it became increasingly  difficult to find five                                                               
volunteers who were  willing to take on  the responsibilities and                                                               
receive the angry calls for no benefit.                                                                                         
2:34:30 PM                                                                                                                    
RENE BROKER, Attorney, Fairbanks North  Star Borough, said she is                                                               
speaking on behalf  of the borough in support of  SB 48. The bill                                                               
fixes the unintended consequences of  the Open Meetings Act (OMA)                                                               
without  diluting   its  important  public  policy   goals.  Paid                                                               
employees are  already exempt from  the OMA  requirements because                                                               
it's    recognized   that    they   can't    perform   day-to-day                                                               
administrative functions  and provide  service to the  public and                                                               
also comply  with the OMA. Service  areas for roads and  fire are                                                               
small  and  lack  resources  to   hire  employees  so  state  law                                                               
authorizes  these  boards  to perform  administrative  functions.                                                               
However, the  commissioners aren't  exempt from  the requirements                                                               
of  the Open  Meetings Act.  SB 48  extends the  exemption that's                                                               
applicable to  paid employees to  the narrow circumstance  when a                                                               
service  area   board  is  performing  the   same  administrative                                                               
functions. The commissioners are acting  on a volunteer basis and                                                               
talking about whether it's a good  idea to remove snow now versus                                                               
later  or  whether  this  culvert should  be  fixed  rather  than                                                               
another one.                                                                                                                    
The second change  clarifies that when members  of a governmental                                                               
body  gather  in a  meeting,  the  same numerical  standard  that                                                               
currently  applies  to  policy  making  bodies  also  applies  to                                                               
advisory bodies. It makes no sense  that an advisory body that is                                                               
only making  recommendations should live under  a higher standard                                                               
than an  assembly. It's  a trap  for the  unwary; people  who are                                                               
simply  trying to  volunteer can  inadvertently violate  the Open                                                               
Meetings Act.                                                                                                                   
2:37:29 PM                                                                                                                    
CHAIR FRENCH  asked if this is  a proactive measure or  if people                                                               
are  actually being  attacked because  of supposed  violations of                                                               
the open meetings laws.                                                                                                         
MS.  BROKER  replied it's  both.  She's  seen people  come  under                                                               
attack when  their mistake was  very inadvertent. It's  a painful                                                               
public  embarrassment for  this to  happen. A  road service  area                                                               
committee asked for this change so  it can do business and comply                                                               
with the Act.                                                                                                                   
CHAIR  FRENCH asked  if she  thinks that  passing this  bill will                                                               
make it less  likely that road service area  boards will continue                                                               
to meet on a regular basis.                                                                                                     
MS. BROKER explained that the 107  service areas in the FNSB have                                                               
eight duties  under the  borough code and  seven of  those duties                                                               
require meetings. The only duty  this bill exempts is supervising                                                               
the actual conducting and providing  of the services. Some people                                                               
get  around  the  meeting  requirement   by  delegating  all  the                                                               
decision  making to  just one  person.  The problem  is that  the                                                               
service area  loses out when  just one  person is making  all the                                                               
decisions  for a  particular  project. The  full  board needs  to                                                               
discuss the issue and make a decision, she said.                                                                                
2:40:08 PM                                                                                                                    
SENATOR WIELECHOWSKI  referenced page  2, lines 22-23,  and asked                                                               
if she reads the current section  to mean that two people getting                                                               
together would be a violation of the Open Meetings Act.                                                                         
MS. BROKER said  absolutely. The language in  subparagraph (A) is                                                               
the  numerical  standard  that is  applicable  to  policy  making                                                               
bodies  and  SB   148  adds  that  same   numerical  standard  to                                                               
subparagraph (B).  Right now  there is  no numerical  standard in                                                               
(B) so if there is a gathering of two it's a meeting.                                                                           
SENATOR  WIELECHOWSKI  said  he'd   like  to  think  through  the                                                               
potential ramifications  because this will impact  more than just                                                               
municipal service area boards.                                                                                                  
CHAIR  FRENCH said  he  agrees  and he'd  like  to  give it  some                                                               
thought before moving the bill.                                                                                                 
2:41:39 PM                                                                                                                    
RONALD HILLINGWORTH, Chair,  23 Mile Slough Road  Service Area in                                                               
the Fairbanks North  Star Borough, stated support for  SB 148. He                                                               
said the current law does not  exempt road service areas from the                                                               
public meeting requirements, which  makes it nearly impossible to                                                               
conduct  routine administrative  and managerial  business without                                                               
posting  notification a  week or  more in  advance and  holding a                                                               
subsequent  public   meeting.  Service  area   commissioners  are                                                               
responsible  for implementing  maintenance  contracts on  service                                                               
area roads.  That entails calling  out the contractor to  do work                                                               
but the  commissioners can not  talk among themselves  about that                                                               
work without having a public  meeting. They can't stop along side                                                               
the  road to  talk  and  they can't  send  emails  to talk  about                                                               
plowing a  road after  a snow storm.  The current  public meeting                                                               
law  makes  it  nearly  impossible to  conduct  routine  business                                                               
without breaking the law.                                                                                                       
2:45:43 PM                                                                                                                    
LUKE HOPKINS,  Assembly Member, Fairbanks North  Star Borough and                                                               
Board Member,  Alaska Municipal League,  spoke in support  of the                                                               
current committee  substitute for  SB 48. The  proposed exemption                                                               
in  Section  1   to  allow  commissioners  to   meet  to  perform                                                               
administrative functions is a reasonable  action. With respect to                                                               
Section 2  and what constitutes  a meeting,  he said he  is often                                                               
asked why commission members that  advise or make recommendations                                                               
operate under  more restrictive conditions  than a body  that has                                                               
the authority to establish policy.                                                                                              
SENATOR MCGUIRE asked  if there was a particular  incident in the                                                               
Fairbanks area that served as a catalyst.                                                                                       
MR.   HOPKINS  replied   it's  probably   the  sheer   number  of                                                               
commissions  and   the  number  of  actions   that  commissioners                                                               
undertake that  has made them  acutely aware of the  problem with                                                               
the Open Meetings Act.                                                                                                          
2:49:22 PM                                                                                                                    
SENATOR  MCGUIRE said  we  need  to know  if  there's an  ongoing                                                               
complaint in  the Fairbanks  area that the  committee may  not be                                                               
privy to.                                                                                                                       
MR. HOPKINS said a resolution  was passed to the borough assembly                                                               
and  this does  seem like  a reasonable  exemption consideration.                                                               
Section 2 goes back to the  issue of commissioners not wanting to                                                               
inadvertently violate  the Open Meetings Act  and the requirement                                                               
for  public notice.  "It  just  seems that  it's  somewhat of  an                                                               
oversight  consideration between  a commissioner  and an  elected                                                               
official for the public meeting notice."                                                                                        
CHAIR FRENCH closed public testimony  and announced he would hold                                                               
SB 48 for further consideration.                                                                                                

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