Legislature(2009 - 2010)BUTROVICH 205

03/10/2009 01:00 PM Senate TRANSPORTATION

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 48(CRA) Out of Committee
Moved SB 53 Out of Committee
          SB  48-MEETINGS OF ROAD SERVICE AREA BOARDS                                                                       
1:04:10 PM                                                                                                                    
CHAIR KOOKESH announced the consideration of SB 48.                                                                             
ERNEST  PRAX,  Staff to  Senator  Therriault,  said the  original                                                               
version  of  SB 48  spoke  to  helping road  service  commissions                                                               
quickly  respond to  issues related  to harsh  weather conditions                                                               
and still  comply with the  Open Meetings  Act. Under that  Act a                                                               
public hearing  notice has to  be posted before taking  action to                                                               
respond  to issues  such as  a heavy  snow fall  or a  washed out                                                               
road.  Following  discussions  with   the  Fairbanks  North  Star                                                               
Borough, a committee substitute (CS)  was developed to expand the                                                               
open  meetings exemption  to  all  municipal boards,  committees,                                                               
commissions,  and  other  similar  bodies  meeting  that  conduct                                                               
administrative or managerial business.                                                                                          
1:06:38 PM                                                                                                                    
The  CS also  streamlines the  definition of  "meeting" under  AS                                                               
44.62.310(h)(2). Under  current statute the  meeting requirements                                                               
for  advisory bodies  are more  stringent than  those for  policy                                                               
making  bodies.  The  bill establishes  that  the  open  meetings                                                               
requirements   for  advisory   bodies   are  the   same  as   the                                                               
requirements  for  government  agencies that  are  authorized  to                                                               
establish  public  policy.  This  provides  consistency  in  what                                                               
constitutes a meeting, he said.                                                                                                 
1:08:44 PM                                                                                                                    
SENATOR  PASKVAN asked  if a  road service  area member  would be                                                               
required to report  back to the other board members  if he or she                                                               
made an administrative or managerial decision.                                                                                  
MR. PRAX said  he doesn't believe any follow-up  is required, but                                                               
he would defer to Renee Broker.                                                                                                 
SENATOR  PASKVAN added  that he's  trying to  figure out  how the                                                               
reporting requirement  will work  because the  individual service                                                               
district  member may  define "solely  administrative" or  "solely                                                               
managerial" differently than the board.                                                                                         
1:10:15 PM                                                                                                                    
RENEE BROKER,  Attorney, Fairbanks  North Star  Borough, informed                                                               
the committee that service area  boards typically have only three                                                               
service  area board  members. So  as it  stands right  now, those                                                               
commissioners  can not  talk to  one another  about road  service                                                               
area issues  because doing  so would  constitute a  meeting. This                                                               
exemption is designed  to allow the commissioners  to talk before                                                               
making a decision. One commissioner would  be able to pick up the                                                               
phone and  call the  other commissioners  and discuss  which pot-                                                               
hole needs  attention first,  for example.  The whole  purpose of                                                               
this is  to increase communication  so everyone is  more informed                                                               
of  a  decision. Now  some  service  areas  get around  the  open                                                               
meeting  requirement in  order to  act quickly  to fix  a plugged                                                               
culvert  or  some other  situation  by  delegating all  decision-                                                               
making  authority to  just one  commissioner. When  that is  done                                                               
there  is no  communication  or input  until  the next  regularly                                                               
scheduled meeting. It  is only then that  the other commissioners                                                               
find out what was done and the attached cost.                                                                                   
1:13:25 PM                                                                                                                    
SENATOR PASKVAN said  his question is whether there  would be any                                                               
reporting to the  full board about an  administrative decision to                                                               
confront the emergency;  a policy-setting decision is  to fix one                                                               
road over  another while an  emergency-management decision  is to                                                               
order a load of gravel for a road washout.                                                                                      
MS. BROKER  reminded the committee  that a service area  does not                                                               
address  a borough-wide  function. These  small service  areas do                                                               
not have employees but they  are functioning as the equivalent of                                                               
a  public works  department. Public  works decisions  about which                                                               
street  to plow  first and  which pot-hole  to fix  are typically                                                               
made by  municipal employees and  not in  the context of  an open                                                               
meeting.  This transfers  that same  concept to  the borough  and                                                               
allows  small   service  areas  that  don't   have  public  works                                                               
departments  or  employees  to   make  day-to-day  decisions  and                                                               
provide  prompt efficient  service to  their constituents.  SB 48                                                               
allows  road  service  area commissioners  to  consult  with  one                                                               
another  about a  decision just  like employees  in a  department                                                               
would consult.                                                                                                                  
1:15:45 PM                                                                                                                    
SENATOR PASKVAN  questioned whether this might  result in service                                                               
area boards not holding meetings.                                                                                               
MS.  BROKER explained  that service  areas are  required to  meet                                                               
quarterly.  In addition  to their  managerial role,  service area                                                               
commissioners  have  eight  other  duties all  of  which  require                                                               
meetings. These  are policy making obligations  like recommending                                                               
a  budget to  the assembly,  recommending a  mill rate  levy, and                                                               
putting together a list of projects for funding.                                                                                
SENATOR PASKVAN asked  what other entities would  fall within the                                                               
parameters of "boards, committees,  commissions, or other similar                                                               
MS.  BROKER said  in the  Fairbanks North  Star Borough  the fire                                                               
service  areas are  the  only other  boards  or commissions  that                                                               
would   be   affected.   This  is   limited   to   service   area                                                               
responsibilities where boards and  commissions are fulfilling the                                                               
role that would otherwise be performed by employees.                                                                            
SENATOR PASKVAN asked  if she is aware of any  other areas of the                                                               
state that would  need such a broad exemption  for anything other                                                               
that road service districts.                                                                                                    
MS. BROKER  said no; she  doesn't recall other  borough attorneys                                                               
throughout the  state mentioning  a problem occurring  other than                                                               
with respect to service areas.                                                                                                  
1:17:55 PM                                                                                                                    
SENATOR PASKVAN recapped  his two areas of  concern, which relate                                                               
to  reporting  back to  the  full  board on  whatever  managerial                                                               
action was taken  and whether this might apply  to entities other                                                               
than road service districts.                                                                                                    
SENATOR KOOKESH  clarified that the  committee is  discussing the                                                               
CRA committee substitute, also known as version E.                                                                              
SENATOR MENARD  noted that she  doesn't have a  sponsor statement                                                               
in the bill packet.                                                                                                             
SENATOR PASKVAN observed that the  analysis section of the fiscal                                                               
note indicates  that this  is limited to  service area  boards so                                                               
they  can  respond  quickly  to  hazardous  road  conditions.  He                                                               
doesn't have  a problem allowing that  but he isn't sure  that it                                                               
doesn't apply to a lot more  than that. Page 2, line 12, mentions                                                               
"boards,  committees, commissions,  or other  similar bodies"  so                                                               
it's unclear whether it's an  overly broad application. "Again, I                                                               
don't mind them  having the ability to fix the  road, but I don't                                                               
know that we need to go beyond that," he said.                                                                                  
CHAIR KOOKESH  asked Ms. Broker if  she would like to  testify on                                                               
the bill.                                                                                                                       
1:22:48 PM                                                                                                                    
MS BROKER,  Attorney, stated support for  SB 48 on behalf  of the                                                               
Fairbanks  North   Star  Borough  (FNSB).  The   bill  fixes  two                                                               
unintended  consequences   of  the  Open  Meetings   Act  without                                                               
affecting the  important public  policy goals  and intent  of the                                                               
Act. The public  continues to have the ability  to participate in                                                               
the legislative process  and FNSB believes that  this will result                                                               
in a stronger  more defensible Act. It's  already recognized that                                                               
public  employees  who   perform  administrative  and  managerial                                                               
functions  can not  effectively  perform those  duties and  still                                                               
comply with  the Act so they  are exempted. SB 48  simply extends                                                               
that principle  to volunteer boards  and commissions in  the rare                                                               
instances where  they are performing  the same duties  that would                                                               
otherwise be performed by paid employees.                                                                                       
The second  fix addresses and  clarifies that the  same numerical                                                               
standard that policy making bodies  live under will also apply to                                                               
advisory bodies. That  standard should not be  more stringent for                                                               
advisory  bodies that  are simply  making recommendations.  Under                                                               
current law  three of the  nine borough assembly members  can sit                                                               
down and  discuss an issue,  but three  members of a  nine member                                                               
advisory body  can't do that.  "We don't think that  was intended                                                               
and we  don't think that makes  any sense so we  strongly support                                                               
this bill," she said.                                                                                                           
1:25:06 PM                                                                                                                    
SHAWN  KITTLE,  Commissioner,  Chena   Spur  Road  Service  Area,                                                               
Fairbanks, reported  that this issue  was brought forward  at the                                                               
February 23 meeting and a  motion was made to unanimously support                                                               
SB 48.                                                                                                                          
1:25:57 PM                                                                                                                    
LUKE  HOPKINS, Member,  Fairbanks  North  Star Borough  Assembly,                                                               
stated support  for the  current version  of SB  48. He  has been                                                               
asked  why two  road service  commissioners or  two fire  service                                                               
commissioners can  not meet to  discuss an  administrative action                                                               
on  a contract  that has  been previously  issued by  the borough                                                               
without a  public notice  of a  meeting. This  is a  problem with                                                               
respect to  getting contract  work done to  open a  culvert, plow                                                               
snow, or cut brush  along a road. He is a member  of the board of                                                               
the Alaska Municipal  League, and this issue will be  taken up at                                                               
the April  meeting. He has  spoken with other  municipalities and                                                               
all agree  that it is  reasonable to  make minor changes  to this                                                               
law without undoing the Open Meetings Act.                                                                                      
The original law  missed the mark since two  assembly members can                                                               
sit down  and talk  about policy  actions, but  two members  of a                                                               
non-policy  making  service  area   commission  can't.  It  seems                                                               
reasonable to have both under the same standard, he said.                                                                       
1:29:31 PM                                                                                                                    
SENATOR  PASKVAN  asked if  he  believes  the bill  appropriately                                                               
addresses  the  distinction   between  managerial  functions  and                                                               
policy making functions.                                                                                                        
MR. HOPKINS said  yes; "I think that  these administrative duties                                                               
are  on contracts  already established,  it's not  to go  out and                                                               
talk  about  creating a  new  contract  or issuing  a  contract."                                                               
Furthermore,   very  few   boards   and  commissions   administer                                                               
contracts so the effect is narrow.                                                                                              
1:30:36 PM                                                                                                                    
TIM BECK, Fairbanks North Star  Borough Assembly, said he is also                                                               
the chair of  the Fairbanks Assembly Road  Service Area Committee                                                               
- the  entity that brought  this legislation forward.  He thanked                                                               
the  sponsor.  He  related  that  the  issue  came  up  when  two                                                               
commissioners stopped  to look at an  active construction project                                                               
and  talk with  the  contractor. That  action  violated the  Open                                                               
Meetings Act. This bill appears to  be what is necessary to allow                                                               
commissioners to  do their job  as expected without  breaking the                                                               
law, he said.                                                                                                                   
1:31:54 PM                                                                                                                    
RONALD ELLINGWORTH, Chair, Twenty-Three  Mile Slough Road Service                                                               
Area,  and member  of the  Borough  District Service  Commission,                                                               
said  current  law  places  commissioners   in  the  position  of                                                               
choosing to  comply with the law,  to ignore the law,  or to find                                                               
ways to circumvent the law. This  should not be acceptable and SB
48  addresses  these  concerns. Because  AS  44.62.310  does  not                                                               
exempt road  service areas from  the public  meeting requirement,                                                               
these  volunteer  commissioners  are unable  to  conduct  routine                                                               
administrative or  managerial duties without  proper notification                                                               
and a  subsequent public meeting.  Currently the service  area is                                                               
responsible for  implementing a contract that  was established by                                                               
the  borough public  works. This  entails calling  the contractor                                                               
out  to do  work  that has  been  agreed to  at  an agreed  rate.                                                               
However, two  road service commissioners  can not stop  along the                                                               
road and discuss  that contracted work. They can't  send an email                                                               
to talk about plowing the road  after a snow storm and they can't                                                               
discuss whether to  call out the contractor to  cut brush without                                                               
noticing a public meeting. Road service  areas are a fact of life                                                               
in  the Fairbanks  region,  but the  current  public meeting  law                                                               
makes  it difficult  to impossible  to  conduct routine  business                                                               
without  breaking the  law. Providing  an  exemption would  solve                                                               
this problem.                                                                                                                   
MR. ELLINGWORTH  said it's  interesting that he  can talk  to the                                                               
borough  public works  department  without  violating the  public                                                               
meeting  law, but  he can't  have a  similar discussion  with his                                                               
fellow commissioners  without giving public notice  of a meeting,                                                               
waiting  the appropriate  length  of time,  and  then having  the                                                               
discussion  at the  public  meeting. In  response  to an  earlier                                                               
question by Senator  Paskvan, he explained that  decisions of the                                                               
road service area  are fairly obvious to its  members because the                                                               
snow  has  been plowed  or  the  pot-hole  is fixed.  During  the                                                               
quarterly meetings  the individual commissioners give  reports to                                                               
recap the  actions they have  taken and the costs  they incurred.                                                               
If  this  exemption   is  granted  all  the   road  service  area                                                               
commissioners could  participate in  the decision  making process                                                               
before any action is taken, he said.                                                                                            
1:35:33 PM                                                                                                                    
SENATOR  GENE THERRIAULT,  Sponsor, SB  48, said  he expects  the                                                               
committee has  heard from  individuals who  have examples  of how                                                               
problematic this  can be.  Some of  the scenarios  are ridiculous                                                               
and that's what  is being addressed. "Hopefully  you'd agree that                                                               
we've addressed that  without throwing things too  wide open," he                                                               
CHAIR KOOKESH asked if he's aware of any opposition to the bill.                                                                
SENATOR  THERRIAULT  said  no,   but  there  have  been  concerns                                                               
expressed  about  opening things  too  wide.  However, once  it's                                                               
understood that  this is for  the purpose of  implementing policy                                                               
and not discussing or making  policy, people are willing to allow                                                               
more latitude.                                                                                                                  
SENATOR MENARD asked if this will also help fire service areas.                                                                 
SENATOR THERRIAULT  said yes;  it will  also help  other advisory                                                               
boards  because  they  would  no  longer  have  more  restrictive                                                               
meeting  standards than  policy making  city councils  or borough                                                               
SENATOR KOOKESH questioned  why there had been  no testimony from                                                               
SENATOR  THERRIAULT said  he believes  that  the Municipality  of                                                               
Anchorage (MOA)  has road powers  and community councils,  but he                                                               
isn't sure about the structure.                                                                                                 
SENATOR KOOKESH closed public testimony.                                                                                        
SENATOR  MEYER related  that Anchorage  has limited  road service                                                               
areas (Lrsa)  and it's never  been brought to his  attention that                                                               
this change would be an issue.                                                                                                  
CHAIR KOOKESH asked for a motion.                                                                                               
1:38:46 PM                                                                                                                    
SENATOR DAVIS  moved to report CS  for SB 48 from  committee with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being  no   objection,  CSSB  48(CRA)   moved  from   the  Senate                                                               
Transportation Standing Committee.                                                                                              

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