Legislature(2009 - 2010)BELTZ 105 (TSBldg)

03/01/2010 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 209 STATE COUNCIL ON THE ARTS; REGULATIONS TELECONFERENCED
Heard & Held
+= SB 244 GOVERNOR'S DUTY STATION/TRAVEL ALLOWANCES TELECONFERENCED
Heard & Held
+ SB 260 ELECTRIC & TELEPHONE COOPERATIVES' VOTING TELECONFERENCED
Heard & Held
+= SB 239 IGNITION INTERLOCK DEVICES/DUI/CHEM. TEST TELECONFERENCED
Scheduled But Not Heard
+= SB 92 U.S. PRESIDENTIAL ELECTION COMPACT TELECONFERENCED
Bill Hearing Postponed
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB 209-STATE COUNCIL ON THE ARTS; REGULATIONS                                                                      
                                                                                                                                
2:14:33 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 209.                                                                             
                                                                                                                                
SENATOR  LINDA MENARD,  Sponsor  of SB  209,  read the  following                                                               
sponsor statement:                                                                                                              
                                                                                                                                
     Senate Bill  209 will provide the  Alaska State Council                                                                    
     on  the   Arts  the  authority  to   adopt  regulations                                                                    
     relating to its statutory powers and duties.                                                                               
     The  bill has  been introduced  at the  request of  the                                                                    
     Alaska State Council  on the Arts (ASCA),  which is the                                                                    
     Last  Frontier's state  arts  agency,  created over  40                                                                    
     years ago.  The council  works in partnership  with the                                                                    
     National  Endowment for  the Arts  (NEA) to  foster the                                                                    
     development  of  the  arts  for  all  Alaskans  through                                                                    
     education, partnerships, grants and services.                                                                              
     Several   of   ASCA's    programs   are   governed   by                                                                    
     regulations,  which ASCA  has  promulgated and  updated                                                                    
     over the  years.  Recently ASCA  has sought  to improve                                                                    
     and streamline  its grant-making  policies, procedures,                                                                    
     and  regulations. In  the course  of this  effort, ASCA                                                                    
     was  informed  by  the  Department  of  Law  that  ASCA                                                                    
     technically does not have  statutory authority to adopt                                                                    
     regulations  under  the Administrative  Procedures  Act                                                                    
     (APA).  While this legal opinion  is at odds with long-                                                                    
     standing practice, ASCA considered  the advice from the                                                                    
     Attorney  General's  office,  and determined  that  the                                                                    
     best way to rectify  the current anomalous situation is                                                                    
     to  amend  its  enabling  statute  to  allow  ASCA  the                                                                    
     explicit statutory authority to adopt regulations.                                                                         
     This  legislation  will   in  essence  codify  existing                                                                    
     practice   and  will   enable  ASCA   to  continue   to                                                                    
     administer and oversee its  existing programs.  Any and                                                                    
     all regulations  adopted in future will  have to comply                                                                    
     with  the review  and public-notice  provisions of  the                                                                    
     APA.  This  bill has a  zero fiscal note and  will help                                                                    
     ASCA continue  performing its long-standing  mission of                                                                    
     helping  more Alaskans  appreciate,  create, and  enjoy                                                                    
     the arts and having  regulatory authority will directly                                                                    
     contribute to ASCA's ability to do so.                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI  asked her to  explain the structure  of the                                                               
Alaska State Council on the Arts.                                                                                               
                                                                                                                                
SENATOR MENARD said  ASCA is a state agency that  was formed with                                                               
assistance from the National Endowment  of the Arts. The governor                                                               
appoints  the  board   members  and  they  must   adhere  to  the                                                               
Administrative Procedures Act.                                                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI  noted that the Workers'  Compensation Board                                                               
develops their  regulations through  the Department of  Labor and                                                               
asked  if  ASCA  would  likewise develop  regulations  through  a                                                               
department.                                                                                                                     
                                                                                                                                
2:18:50 PM                                                                                                                    
BENJAMIN  BROWN,  Chair,  Alaska   State  Council  on  the  Arts,                                                               
explained that  ASCA is  a stand-alone  within the  Department of                                                               
Education and  Early Development  (DEED). State employees  do the                                                               
day-to-day work, but ASCA staff  would draft the regulations that                                                               
would be  approved by the  Department of  Law (DOL) and  then the                                                               
Lieutenant Governor's  Office. The problem came  to light through                                                               
efforts to  streamline ASCA grants.  He noted that  ASCA regrants                                                               
money it  receives from the  National Endowment for the  Arts and                                                               
the  Legislature to  arts organizations  like Out  North Theatre,                                                               
Perseverance   Theatre,   Anchorage  Concert   Association,   and                                                               
Fairbanks  Drama Association.  ASCA was  able to  streamline many                                                               
procedures  in its  policies, but  some were  ensconced in  state                                                               
regulations. When ASCA asked DOL  to review the proposed changes,                                                               
DOL determined that AKSA didn't  have the authority to make these                                                               
changes.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  noted that  his letter  summarizes the  problem and                                                               
points  out that  the best  remedy would  be to  add the  missing                                                               
language to the statute. I believe that's wise, he said.                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI  asked if ASCA  has policies  and procedures                                                               
in place  and if  it currently works  with an  assistant attorney                                                               
general when it adopts regulations.                                                                                             
                                                                                                                                
MR.  BROWN answered  yes; when  Ms.  Fox drafts  something it  is                                                               
reviewed by  an assigned assistant  attorney general.  Ms. Hattan                                                               
is that  person. She inherited the  problem after it came  to Mr.                                                               
Slotnick's attention. ASCA has also  worked with Ms. Behr and Mr.                                                               
Weaver  both  of whom  do  regulatory  review. These  regulations                                                               
would  go  through all  the  same  hoops  as any  other  proposed                                                               
regulations, he added.                                                                                                          
                                                                                                                                
SENATOR WIELECHOWSKI asked if someone from DOL is online.                                                                       
                                                                                                                                
2:22:26 PM                                                                                                                    
REBECCA  HATTAN,  Attorney,  Civil Division,  Department  of  Law                                                               
(DOL), introduced herself.                                                                                                      
                                                                                                                                
SENATOR WIELECHOWSKI asked if this proposal is unusual.                                                                         
                                                                                                                                
MS. HATTAN replied  it's not at all uncommon.  She explained that                                                               
Alaska  has advisory  and  non advisory  councils  that have  the                                                               
authority to  promulgate regulations.  She named as  examples the                                                               
Council  on  Domestic Violence  and  Sexual  Assault, the  Police                                                               
Standards Council, and the Fire Council.                                                                                        
                                                                                                                                
CHAIR FRENCH  asked Ms.  Fox if  she had anything  to add  to the                                                               
conversation.                                                                                                                   
                                                                                                                                
CHARLOTTE FOX,  Executive Director,  Alaska State Council  on the                                                               
Arts, related  that it was a  surprise to learn that  ASCA didn't                                                               
have the  statutory authority to promulgate  regulations since it                                                               
had been operating under its regulations for a number of years.                                                                 
                                                                                                                                
SENATOR COGHILL  questioned what  will happen to  the regulations                                                               
that were passed without statutory authorization.                                                                               
                                                                                                                                
MR. BROWN opined  that they would be repromulgated.  This will be                                                               
a little  more work, but  it would get  ASCA into the  public eye                                                               
and  provide an  opportunity to  publicize changes  to the  grant                                                               
program.                                                                                                                        
                                                                                                                                
CHAIR FRENCH closed public testimony and announced he would hold                                                                
SB 209 for a future hearing.                                                                                                    
                                                                                                                                
2:25:38 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair French adjourned the Senate Judiciary Standing Committee                                                                  
at 2:25 p.m.                                                                                                                    

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