Legislature(2003 - 2004)

02/24/2004 03:37 PM Senate STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
          SB 352-MANAGERS NOT EMPLOYEES UNDER P.E.R.A.                                                                      
CHAIR GARY STEVENS  announced SB 352 to be  up for consideration.                                                               
He read  the title and  asked Kevin  Jardell to come  forward and                                                               
introduce the bill.                                                                                                             
KEVIN  JARDELL,  assistant  commissioner for  the  Department  of                                                               
Administration, explained that the  intention is to modernize the                                                               
Public Employee  Relations Act (PERA). The  changes would conform                                                               
to most states  that allow public employees to  bargain and would                                                               
also conform  to federal law,  which applies to  private industry                                                               
unions throughout the U.S. Department of Education.                                                                             
The impetus for  the change stems from  confusion and frustration                                                               
associated  with trying  to  implement  the new  administration's                                                               
policies, he  said. In  working through  the policies,  they were                                                               
trying to  understand the management  they have in the  state and                                                               
how to utilize that management  to implement the administration's                                                               
The  first  thing  they  noticed  is  that  there  was  excessive                                                               
micromanagement on  the commissioner level. They  determined that                                                               
lower-level  managers   should  be   implementing  many   of  the                                                               
policies,  but found  there were  no lower-level  managers. Under                                                               
current state law,  the organization is such  that everyone below                                                               
the  commissioner, including  assistant commissioners  and deputy                                                               
commissioners, is  labor under PERA. Upon  further investigation,                                                               
they found that although assistant  and deputy commissioners have                                                               
the right  to bargain, they  haven't exercised that  option. That                                                               
isn't the pressing problem, he said.                                                                                            
ASSISTANT COMMISSIONER JARDELL continued  to say that the problem                                                               
is that  there is  no line drawn  to define  managers, management                                                               
and  labor.  They were  certain  that  drawing  the line  at  the                                                               
commissioner level  was not appropriate,  but weren't  sure where                                                               
it  would  be   appropriate.  The  focus  was   to  identify  the                                                               
management  team  and  train them  as  professionals  that  would                                                               
become a part of policy implementation at the division level.                                                                   
They looked  at state history and  learned that this isn't  a new                                                               
concept. The Cooper, Hammond and  Hickel administrations all took                                                               
some action  on this  issue. In  1977 and  1980, the  Blue Ribbon                                                               
Commission   reviewed   PERA.   In   particular   they   reviewed                                                               
confidential  employees and  the managerial  class of  employees.                                                               
That  task  force  determined  that  those  employees  should  be                                                               
management rather than in organized labor.                                                                                      
A number  of previous administrations  concluded that  they could                                                               
solve  the  problem  by removing  these  people  from  classified                                                               
service  and  placing  them in  partially  exempt  service.  This                                                               
doesn't solve the problem, he  asserted. First, placing employees                                                               
in the  partially exempt service,  doesn't remove their  right to                                                               
bargain.  The  other   reason  it  doesn't  work   is  that  this                                                               
administration doesn't  believe that it  is in the  best interest                                                               
of the state  to make career-service employees who  have risen to                                                               
the  management level  in a  division into  political appointees.                                                               
This  administration doesn't  want more  political appointees  at                                                               
this level, he insisted.                                                                                                        
What  this administration  wants to  do is  to develop  a career-                                                               
service path for  management level employees that  would be under                                                               
the political  appointees. That  line is  at the  deputy director                                                               
level  and  it  would  "provide   a  lot  of  continuity  between                                                               
administrations  and a  professionalism  and  a management  class                                                               
that we currently  don't spend the resources to train  and put in                                                               
because we can't identify them as management."                                                                                  
He pointed to the Division  of Retirement and Benefits to provide                                                               
example  of  another  problem. One  director  oversees  over  100                                                               
employees and  when he or she  is gone, for any  reason, there is                                                               
no management  representative in  the division during  the entire                                                               
absence.  In  those instances,  organized  labor  is running  the                                                               
division. To address that issue,  they are trying to identify the                                                               
managerial,   deputy  director   level   that   is  acting   with                                                               
independence in implementing the governor's policies.                                                                           
He said appointees create and  develop policy then the next level                                                               
of management  implements the policy with  discretion. That level                                                               
of  independent  judgment is  the  root  of the  definition  they                                                               
propose to adopt. The employee must  have that to be defined as a                                                               
management  level. Employees  that exercise  independent judgment                                                               
to implement policy are defined as managerial level.                                                                            
SB 352 adopts the federal standard for confidential employees.                                                                  
CHAIR GARY  STEVENS told Assistant  Commissioner Jardell  that he                                                               
wanted  to  give  him  every opportunity  to  fully  present  the                                                               
administration's point  of view,  but it  might have  to be  at a                                                               
future  time. Many  people were  waiting  to testify  and it  was                                                               
getting late in the day.                                                                                                        
ASSISTANT COMMISSIONER  JARDELL concluded  that the  principle of                                                               
the bill  is "to build a  better management scheme for  the state                                                               
of  Alaska,  not make  new  political  appointees, but  generally                                                               
professionalize and train a management class of employee."                                                                      
CHAIR   GARY  STEVENS   thanked  him   for  working   within  the                                                               
committee's  time constraints.  He said  he would  begin to  take                                                               
testimony  in Juneau  then  move to  the  various communities  to                                                               
allow the 35 some people to speak.                                                                                              
SENATOR GRETCHEN  GUESS asked the  Chair if he wanted  members to                                                               
hold  their  questions until  the  end  of the  public  testimony                                                               
CHAIR GARY  STEVENS replied Assistant Commissioner  Jardell would                                                               
return  to  complete his  testimony  and  answer questions  at  a                                                               
future hearing.                                                                                                                 
JEFFERY PRATHER,  staff manager with children  services in Juneau                                                               
said he  listened to  the previous testimony  and he  was unclear                                                               
"who all  they're envisioning being  a part of this."  As someone                                                               
who might potentially be management,  he cautioned the members to                                                               
take care  in determining the  level that is appropriate  to draw                                                               
the line. In  his office, managers make  many sensitive decisions                                                               
and  "politics can  play a  role in  decisions that  are made  by                                                               
supervisors  throughout  the state."  He  maintained  there is  a                                                               
level of  comfort having  a union  to act as  a buffer  when they                                                               
must make  decisions that  align with  state regulation  and law,                                                               
but are troubling due to other issues.                                                                                          
KEVIN  BRENNAN from  Kodiak testified  via teleconference  on his                                                               
own behalf. He  works for the Alaska Department of  Fish and Game                                                               
(ADF&G). He thought  Assistant Commissioner Jardell's explanation                                                               
very interesting  when compared  to the vague  language contained                                                               
in  the  bill.  In  fact,  the description  of  a  manager  could                                                               
conceivably include anyone in the supervisory unit.                                                                             
"Politicizing  public  employee   positions  would  diminish  our                                                               
effectiveness in  the state."  He asked that  the bill  be tabled                                                               
because it is an attack on PERA and collective bargaining.                                                                      
LESLIE  SIMMONS testified  via teleconference  from Anchorage  in                                                               
opposition to  SB 352. She  said she  is a front  line supervisor                                                               
for the  solid waste program  in the Department  of Environmental                                                               
Conservation.   She   implements    policy   developed   by   her                                                               
commissioner,  division   director,  and  program   manager.  She                                                               
provides information to help them in policy development.                                                                        
Because  of her  technical expertise,  schooling and  experience,                                                               
she   is  instrumental   in   helping   the  department   develop                                                               
environmental regulations.  "I do  my job with  the understanding                                                               
of  the  political,  social and  economic  implications.  I  make                                                               
decisions based on  sound science, laws and  regulations and best                                                               
management   practices.   Not   based   on   shifting   political                                                               
elections." She urged the committee to table the bill.                                                                          
CHAIR GARY STEVENS thanked Ms.  Simmons and announced that it was                                                               
5:00 pm  and even though the  hearing would continue for  a while                                                               
longer, his  intention was to  hear the bill again  the following                                                               
Tuesday.   Everyone  that   wanted   to  speak   would  have   an                                                               
DEAN WILLIAMS testified via teleconference  to say that Assistant                                                               
Commissioner   Jardell's   comments   are  well   understood   by                                                               
supervisory members. However, he  respectfully disagreed with his                                                               
analysis  of  the  situation  and  what he  believes  to  be  the                                                               
problem.  He reasoned  that  as  "you move  down  into the  state                                                               
management team,  you understand that  when a director  leaves of                                                               
course   we're    carrying   out    the   governor's    and   the                                                               
administration's   programs  and   plans.  We   are  the   career                                                               
This  legislation makes  jobs  that  are not  and  should not  be                                                               
political very  political indeed. "We respectfully  disagree with                                                               
the  analysis  of  Assistant Commissioner  Jardell  and  ask  the                                                               
committee to  look very carefully  at what is in  the legislation                                                               
and the severe  ramifications that we believe it's  going to have                                                               
on the supervisory employees and the state as a whole."                                                                         
STEVE  HOFFMAN from  Ketchikan testified  via teleconference.  He                                                               
questioned  whether  the bill  was  an  attempt to  better  state                                                               
government or a first step toward union busting.                                                                                
OLE LARSON testified  via teleconference from the  Mat-Su LIO and                                                               
said  where  he  works, the  commissioner,  deputy  commissioner,                                                               
directors, and  special assistants are all  political appointees.                                                               
He  didn't hear  about the  bill  until the  previous Friday,  he                                                               
didn't read about  it until yesterday and  he couldn't understand                                                               
the urgency. "The state employment  system isn't broken or out of                                                               
control." He  said he was  opposed to the legislation  because it                                                               
wouldn't  provide any  protection to  supervisory employees  from                                                               
the political whims of changing administrations.                                                                                
He stated  that there  is just one  supervisory layer  under him.                                                               
"There isn't  a long career ladder  to begin with and  this would                                                               
eliminate what career ladder is  left." A staff member asked what                                                               
"undivided loyalty" means and he believes this is a scary issue.                                                                
TAPE 04-10, SIDE A                                                                                                            
5:12 pm                                                                                                                       
CHAIR GARY STEVENS announced that  he wanted the entire committee                                                               
hear all  the testimony on  this important issue and  he intended                                                               
to take additional public testimony the following Tuesday.                                                                      
BRUCE  SENKOW testified  via  teleconference  from Fairbanks  and                                                               
advised that he  is the president of the  Alaska Public Employees                                                               
Association. When he reviewed the bill,  he found it to be "wrong                                                               
on so  many levels." With regard  to loyalty, he has  never heard                                                               
of a  supervisor disobeying a  direct request from a  director or                                                               
commissioner if  he or  she was given  clear direction.  Next, he                                                               
couldn't   figure  out   where  the   governor's  concern   about                                                               
confidentiality was  coming from  because "we probably  hear more                                                               
from  commissioners and  political appointees  than we  ever hear                                                               
from labor relations staff."                                                                                                    
The  issue of  cost is  noteworthy  even though  the fiscal  note                                                               
doesn't  reflect  that.  Under collective  bargaining,  there  is                                                               
arbitration if you  must terminate someone. That  is costly. With                                                               
this  bill,  he  thought  a  predetermination  hearing  would  be                                                               
necessary  followed  by a  personnel  board  hearing. After  that                                                               
lawyers would get  involved. "That's going to cost  you ten times                                                               
more than  what an arbitration will  cost to find out  whether or                                                               
not you did what you should have done."                                                                                         
Drawing   on  years   of  experience,   he  asserted   that  most                                                               
supervisors  are more  fiscally responsible  than most  political                                                               
appointees. "On  so many levels, this  is the wrong time  and the                                                               
wrong thing to  address. The system isn't broken  it doesn't need                                                               
to be fixed. I think this needs to be tabled."                                                                                  
SHANNON  FLEMING   testified  that   she  is   the  investigation                                                               
supervisor for the office of  children's services in Juneau. Many                                                               
of her sentiments were stated  already, but she wanted to comment                                                               
on conflicting loyalties.                                                                                                       
She  professed to  no conflicting  loyalties  now, but  suggested                                                               
that she very well might  if she didn't have union representation                                                               
because  she  helps  six social  workers  make  difficult  family                                                               
related decisions on a daily basis.                                                                                             
GEORGE PAPPAS,  an area management  biologist for  the Department                                                               
of Fish  and Game,  testified via  teleconference from  Kodiak in                                                               
opposition to SB 352.                                                                                                           
As a manager of a  fully allocated fishery, nearly every decision                                                               
that  he  makes  serves  some  user group  and  takes  away  from                                                               
another, he  said. He questioned  whether the next  generation of                                                               
biologists  would  be  able  to base  their  decisions  on  sound                                                               
biological   principles   rather   than   the   politically   and                                                               
economically  based  process seen  in  the  early 1900s.  Without                                                               
protection of  a union, he was  concerned that he could  lose his                                                               
job  for  making a  publicly  unpopular,  but biologically  sound                                                               
GERRY  GUAY  testified  via   teleconference  from  Anchorage  in                                                               
opposition  to  the   bill.  He  works  for   the  Department  of                                                               
Environmental  Conservation   and  is  also  the   chair  of  the                                                               
Southcentral  supervisory  unit.  SB  352 implies  the  500  plus                                                               
members of the state supervisory  workforce need to be controlled                                                               
because  they   aren't  supportive   of  the   current  political                                                               
direction. "The  implication that  we could be  better controlled                                                               
is not only  a dangerous conclusion, but  severely undermines the                                                               
fabric of state government and being a public servant."                                                                         
     Our role as supervisors is  not to be controlled but to                                                                    
     serve   the   residents   of  the   state   of   Alaska                                                                    
     irrespective of  the controlling party. We  are here to                                                                    
     provide  informed advice,  technical  expertise and  to                                                                    
     serve as  check and  balance when decisions  don't make                                                                    
     sense. This is not to  suggest that we work against the                                                                    
     political  pundit, but  instead we  make sure  that the                                                                    
     desired  results are  based  on  informed decisions.  I                                                                    
     believe the mere suggestion of  political control at my                                                                    
     mid-managerial level should send  fear to the hearts of                                                                    
     most Alaskans.                                                                                                             
He  observed  that  he  interpreted  the  bill  differently  than                                                               
Assistant Commissioner Jardell and asked how the bill would:                                                                    
   · Improve the loss in productivity in the state system caused                                                                
     by political turnover every 4 years                                                                                        
   · Handle the loss in informed experienced leadership in the 3                                                                
     to 6 months following each election                                                                                        
   · Address the brain-drain as older staff leave or are forced                                                                 
   · Counter the loss of staff leaving for bigger money in the                                                                  
     private sector because state employment no longer offers                                                                   
   · Counter the loss of dedicated state workers and managers                                                                   
   · Address fewer experienced state workers wanting to become                                                                  
   · Protect supervisory members that are already afraid to                                                                     
     testify at legislative hearings because they are afraid of                                                                 
     political retribution                                                                                                      
DORIS TANNER testified via teleconference  from the Mat-Su LIO to                                                               
represent supervisory members of  the Election Board. She opposed                                                               
any  effort to  open  the Public  Employment  Relations Act.  She                                                               
advised that  she had a written  statement to read and  she would                                                               
send the committee a copy for the file. She read:                                                                               
     PERA isn't broken; if anything  it isn't strong enough.                                                                    
     This is  evident in the  continual upheaval  and damage                                                                    
     done to  vital state programs  and service of  each and                                                                    
     every administrative change in subjective replacement                                                                      
     Raiding  PERA will  increase  the  number of  long-term                                                                    
     employees  - and  these are  employees with  experience                                                                    
     and  history necessary  to  operate efficient  programs                                                                    
     and  services  -   arbitrarily  replaced  by  political                                                                    
     influence. I am  here today to tell  you about personal                                                                    
     experiences  with   political  appointments   in  state                                                                    
     government. As you know,  each and every administration                                                                    
     brings  with it  political  appointees  into key  state                                                                    
     positions.  We have  pretty much  learned to  live with                                                                    
     that.  Those positions,  however, bring  their own  key                                                                    
     people   in.  These   political  pawns   are  generally                                                                    
     inexperienced  in the  department they  are charged  to                                                                    
     represent. They  bring varying levels of  education and                                                                    
     experience and a complete  misunderstanding for how the                                                                    
     department,  the division,  or  the program  functions.                                                                    
     They lack  the history or  memory to quickly get  up to                                                                    
     speed in the mission  of the department they represent.                                                                    
     In  short,  they bring  chaos  into  a perfectly  oiled                                                                    
     If PERA  is raided, this political  process will become                                                                    
     the norm  occurring daily rather than  every four years                                                                    
     that we currently experience.                                                                                              
MS. TANNER noted that one of her employees wrote, "This is the                                                                  
first time in my life that I have felt afraid to say what I                                                                     
think in  a workplace.  This is  not like  me." That  paranoia is                                                               
widespread and is holding the state hostage, Ms. Tanner charged.                                                                
Finally she asked,  "Why is this issue only  receiving the notice                                                               
of one  hearing held one  day after its introduction?"  She urged                                                               
the committee to kill SB 352.                                                                                                   
CHAIR GARY STEVENS  thanked her for her  comments then explained,                                                               
for the record, "that we did send  this out on Thursday - that it                                                               
was  posted on  Friday.  It was  not given  a  bill number  until                                                               
Monday when  it went  across the Senate  floor." He  continued to                                                               
say  that there  would  be  another hearing  to  give everyone  a                                                               
chance to speak to the issue.                                                                                                   
He announced  he would  like to  hear from  one more  person from                                                               
Fairbanks  so that  each community  had two  people speak  to the                                                               
JUNE PENNELL-STEPHENS,  APEA member and manager  at the Fairbanks                                                               
North Star  Borough, stated that  she was  the next on  the list.                                                               
She made the  point, "You make good managers  by hiring qualified                                                               
people  and training  them properly,  not  merely by  prohibiting                                                               
them  from  carrying a  union  card."  It  is short  sighted  and                                                               
offensive to say that someone can't  be a good manager and a good                                                               
union  member.  Her contract  gives  her  the explicit  right  to                                                               
express political opinions, which is  not included in the general                                                               
personnel policy  that covers  non-union employees.  Without that                                                               
guarantee, many public employees  would be directly or indirectly                                                               
deprived  of  their  right  of  free  speech.  She  charged  that                                                               
prohibiting all  managers from belonging to  any union whatsoever                                                               
might well be  an infringement on their first  amendment right to                                                               
the freedom  of association.  She urged  the committee  to defeat                                                               
the bill.                                                                                                                       
CHAIR  GARY STEVENS  announced that  the  committee schedule  was                                                               
full for  the coming  Thursday meeting,  but they  would continue                                                               
hearing the bill  again on Tuesday of the next  week. He noted he                                                               
hadn't  given Assistant  Commissioner Jardell  an opportunity  to                                                               
complete his testimony and asked him if he had anything to add.                                                                 
ASSISSTANT  COMMISSIONER  JARDELL  replied he  would  return  and                                                               
answer questions at a later time.                                                                                               
CHAIR GARY  STEVENS held  SB 352 in  committee and  adjourned the                                                               
meeting at 5:30 pm.                                                                                                             

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