Legislature(2009 - 2010)BUTROVICH 205
03/10/2009 01:00 PM TRANSPORTATION
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* first hearing in first committee of referral
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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 bodies." 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 said. 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 assemblies. SENATOR KOOKESH questioned why there had been no testimony from Anchorage. 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.