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5 BEFORE THE WYOMING STATE LEGISLATURE
6 SELECT SCHOOL CAPITAL CONSTRUCTION COMMITTEE
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9 SELECT SCHOOL CAPITAL CONSTRUCTION COMMITTEE PROCEEDINGS
October 23, 2001
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1 P R O C E E D I N G S
2 (Meeting proceedings commenced
3 8:30 a.m., October 23, 2001.)
4 COCHAIR DEVIN: We will go ahead and call
5 our meeting to order this morning. Good morning to each
6 of you. The faster I went this morning, the slower I
7 moved. But anyway, I apologize. We'll get moving here.
8 Our first order, our chairman -- our staff tells
9 me that we're all here, so I guess we don't need to do a
10 verbal roll call.
11 Our first order of business is -- and you will
12 see we have a pretty heavy schedule. We, I think, have
13 some excellent groundwork today for some good business to
14 get done. We've got some good pieces together and a lot
15 of meat to work with. I'm hoping that we can move through
16 this with care and cover the pieces today.
17 We have included in the agenda some briefing on
18 the Supreme Court; as you can see, some more work on
19 facility guidelines; and then we have -- the cochairman
20 and I have asked that we try to keep all of the committees
21 moving forward on this apprised of the state financing
22 options, although that's not entirely our charge.
23 The committee tomorrow on -- select committee on
24 state finance and investment -- if I have those turned
25 around -- will be working in detail with this piece, but I
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1 think it is still wise that everybody who works with it --
2 it is complex enough that we need to stay apprised as we
3 move along. So we will be doing this so that -- and then
4 there will be a meeting on Thursday of the management
5 council along with multiple committees, and hopefully we
6 can keep this pulled together.
7 But I think each time we have an opportunity in
8 the agenda to discuss these pieces in a smaller group, it
9 is going to make you better prepared for those large
10 groups because I think that will be more difficult to get
11 into detail, so we'll try to do that.
12 The minutes of the meetings of May 14th and
13 August 30th -- did we not approve the May 14th?
14 MR. NELSON: We neglected to.
15 COCHAIR DEVIN: They have been distributed
16 to you. I know that I reviewed them and didn't find any
17 others. Were there any corrections that anyone else
18 picked up in any of those?
19 Could I have a motion for their approval?
20 SENATOR COE: Motion for approval.
21 COCHAIR DEVIN: Second.
22 REPRESENTATIVE SIMPSON: Second.
23 COCHAIR DEVIN: All those in favor, aye.
24 The minutes of those meetings are approved.
25 And I have been greeting you every time telling
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1 you we do not yet have a Supreme Court decision, but I
2 want to tell you that I think your work up to this point
3 fits amazingly well to where we're going to have to go
4 from here, so I think your efforts were well spent in
5 terms of getting us briefed and educated and getting a
6 sense of where we need to go.
7 With that, Mr. Hunkins, welcome. We have asked
8 that this committee get an opportunity to review what that
9 rehearing content was and for us to have an opportunity to
10 ask questions.
11 MR. HUNKINS: Thank you, Madam Chairman.
12 Good morning, members of the committee.
13 What I thought I would do this morning is give
14 you my take on the rehearing decision which was published
15 by the Wyoming Supreme Court on October the 2nd; tell you
16 a little bit about where we as representatives of the
17 Attorney General's Office believe that that leaves us,
18 comparing the October 2nd decision with the February 23rd
19 decision; spend some time on the issue of local
20 enhancements which was, as the Chairman indicated, a
21 troublesome issue earlier and which seems to now have been
22 clarified and is less troublesome in the capital
23 construction area; and talk to you a little bit about the
24 pipeline projects and the -- those construction programs
25 that are in the pipeline and you're considering and what,
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1 if anything, this rehearing decision does for those
2 projects; and then take your questions because I can't
3 possibly anticipate what may be troubling you as you read
4 through the jurisprudence that covers capital construction
5 for education in Wyoming.
6 So with that introduction, let's get right into
7 the rehearing.
8 And let me, first of all, remind you that when
9 the decision came out on February 23rd, the rules provided
10 an opportunity for us to ask for a rehearing in areas
11 where we think or we thought that the Court erred.
12 And we did that. They were all related to
13 capital construction issues, and they were -- they were
14 five in number, a discrete number of issues.
15 I've heard some comment, you know, to the effect
16 that the decision on rehearing really didn't change
17 anything, and with respect to those who may hold that
18 opinion, I would tell you that I definitely disagree. I
19 think there is a marked difference between the February
20 23rd issue decision on capital construction and the
21 rehearing in four of the five areas.
22 The fifth area was in -- that we brought up was
23 in the separation of powers question. We asked the Court
24 to take a look at that, once again, as we have every time
25 that I've been involved in representing the State, and the
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1 Court spent the majority of its decision on separation of
2 powers in this rehearing. Four of the justices held firm
3 on their view of that topic, and we had one dissent this
4 time.
5 But the other four issues, I think the
6 clarification provided substantial assistance to the other
7 branches of government, both in terms of clarification and
8 in terms of removing some troublesome language in that
9 first decision.
10 Let's take a look at the total cost -- total
11 spending on capital construction.
12 You will remember in the February 23rd decision,
13 in fact, on page 2 of that decision, the Supreme Court
14 said this, and I quote: "The total cost of compliance is
15 $563,099,986," a sum certain that you were ordered to
16 spend based on some factors that I won't get into right
17 now.
18 But in the rehearing decision in October, the
19 Court said that -- acknowledged that the total amount is
20 going to fluctuate. They said that any funds that have
21 already been expended -- we petitioned for a rehearing and
22 said, "Look, the legislature has been spending money on
23 major maintenance for a number of years now and you're
24 still telling us $563 million is the magic number, and you
25 haven't understood that this major maintenance is being
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1 applied to these problems; and furthermore, it is
2 important," we told the Court in our petition for
3 rehearing, "that you understand that this is a moving
4 target, that there are going to be schools that are off
5 and other schools that go on, so don't stick us with a sum
6 certain."
7 And the Court backed up on that and even
8 acknowledged that the costs were inaccurate on page 5 of
9 the decision, the costs mentioned in their February
10 decision.
11 On the issue of scoring 90 or above, we got, on
12 the one hand, a reaffirmation of that by the Court, but
13 the score then was determined in the body of the opinion
14 not to be the controlling factor. And of course a score
15 of 90 or above, according to the MGT scoring system, was
16 referenced as new.
17 In the October 2nd opinion the Court said that
18 new construction was not required, assured the State that
19 new construction was not required, and went on to develop
20 a new test. And that test was whether -- with regard to
21 whether capital construction is needed, the issue would be
22 looked at from the standpoint of whether routine
23 maintenance would solve the problem. So that was kind a
24 new test.
25 They also said that -- stuck firm with their
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1 funding for required, needed -- immediate need facility --
2 I was searching for that term -- immediate need
3 facilities. And the other time frames, too, they held
4 firm on those time frames, but they clarified to say that
5 really what is needed is the funding in place, not the
6 construction to begin. So they seemed to come down to a
7 test of have these funds been appropriated in order to
8 determine whether the legislature has met the dictates of
9 the Supreme Court, rather than has the project been fully
10 constructed or even started.
11 And on page 4 of the decision they came up with
12 a new standard which really, I think, is helpful to the
13 State. That new standard is that the State must consider
14 chronically overcrowded buildings as an immediate need.
15 And chronically overcrowded, of course, is not defined in
16 their opinion, but it is, I guess, to be distinguished
17 from acutely overcrowded conditions; that is, those
18 conditions that might come about because of a temporary
19 construction program in a community that brings temporary
20 workers in or some other aberration that doesn't rise to
21 the standard of chronically.
22 That sort of ties into a very definite problem
23 which was identified, I'm sure, by most of you and
24 certainly in the executive branch coming from the previous
25 decision, and that was Wyoming square footage standards
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1 apply.
2 You will remember the sequence. There were some
3 square footage standards that were adopted. They were put
4 into place. And then it was called to the executive
5 branch's attention, and I guess the legislative branch,
6 too, that those square footage requirements were the
7 most -- what can I say -- generous -- generous in the
8 United States, that they were overly generous, were not
9 required and would result in huge unnecessary costs
10 because they were just too many square feet per student.
11 Then in the sequence of events the change was
12 made by the legislature last year to adopt a new standard,
13 that new standard being, I think, within 10 percent,
14 wasn't it, of the regional average -- have I got it
15 right -- yes, within 10 percent of the regional average
16 was the new square footage standard adopted by the
17 legislature, and that came within a matter of days before
18 February 23rd when the Supreme Court opinion came out.
19 On February 23rd the Supreme Court on page 52 of
20 that decision blessed the old standards, the standards
21 that were in effect before you made the change. And what
22 I think scared a lot of folks was that they seemed to set
23 these standards in some sort of constitutional framework.
24 In footnote 54 they recited the old overly
25 generous standards, and since this was a decision on
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1 constitutional requirements, certainly caused a lot of
2 folks that believe that the old standards now were written
3 in constitutional stone and we were stuck with these
4 unnecessary construction square footage bases.
5 That has changed as a result of the new standard
6 that I mentioned to you, chronically overcrowded, and the
7 Court repeatedly in this October decision talked about the
8 exigent -- they don't use that term, but they talk about
9 the state standards in effect, which my interpretation of
10 that is you set the standards as to what is necessary and
11 the Court will measure compliance by your standards.
12 That's a big, big item and one that was quite troublesome.
13 One of the issues we raised in our petition for
14 rehearing is what about these lawn mower sheds and which
15 buildings do these standards apply to?
16 The Court held firm and said they apply to every
17 building, but they did apply a common sense -- in fact,
18 they used that term, "common sense," the State should use
19 common sense in prioritizing. So we felt that that was a
20 step in the right direction.
21 With regard to infrastructure, we had said in
22 our petition for rehearing because of this remedy that the
23 Court has crafted on its own ordering the $563 million to
24 be expended within a six-year period of time with
25 intermediate milestones, that raises into question the
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1 ability of the State's infrastructure to handle such an
2 ambitious program, particularly with regard to some of the
3 other construction issues that are out there in the state,
4 power plants and so on and so forth.
5 And we used a report that had been delivered to
6 the University of Wyoming Board of Trustees by a
7 construction manager for them indicating that this -- that
8 their programs were coming in higher than the engineer's
9 estimate because of the construction up and down the Front
10 Range.
11 The Court said, "We didn't hear this evidence.
12 It wasn't at the trial." Of course it wasn't at the trial
13 because it didn't exist, and the issue was not on the
14 table at the trial.
15 But nevertheless, the Court said -- finally
16 concluded that issue by saying, "We think it is
17 premature," which to me meant, "If it becomes a problem,
18 come back and talk to us." And they even said -- warned
19 the adversaries of the State in this litigation to act
20 with reason for any time extension requests.
21 So they clearly acknowledged that there might be
22 some time extension requests and said that they should be
23 handled in a reasonable manner, first by the adversaries
24 and then invited the State to come back if that becomes a
25 problem.
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1 So, bottom line, that's fine with us, that
2 clarification. It is helpful if we get into a jam, if we
3 have all of this construction going on and these
4 estimates, these bids are coming in over estimates because
5 of the strain on construction infrastructure in the state,
6 lack of bids from competitive contractors, we've got a
7 remedy that we can go and take advantage of.
8 With regard to time, the Court was rigid in the
9 first instance in its time frame, saying, "Stick with
10 these times." But then, of course, as I just mentioned,
11 they acknowledged that there might be requests for
12 extension.
13 Now, I want to turn briefly to an issue which I
14 think has troubled many of those involved in the public
15 policy arena.
16 In the Court's decisions, both Campbell I, which
17 was the '95 decision, and Campbell II, which was the
18 February decision, and that was with respect to the local
19 enhancements becoming new state standards, I'll just read
20 to you to put this problem in context what the Campbell II
21 Court said and then contrast that with what this Court on
22 rehearing said earlier this month, and you can draw your
23 own conclusions.
24 In Campbell II, the February decision, the Court
25 said this: "In addition, imposing the burden on the local
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1 school districts to tax locally to provide local
2 enhancement denies the poorer districts the opportunity to
3 fund local enhancement as authorized by Campbell."
4 They're talking about Campbell I, the '95 decision.
5 "Campbell did not define the term but suggested
6 that local innovations could become the standard required
7 for the state as a whole." That's the problem.
8 The Campbell II Court went on to say:
9 "Specifically Campbell I stated" -- and I won't read all
10 of this. I'll get down to the nubbins, quoting from the
11 '95 decision -- "Second, local enhancement may also result
12 in substantive innovations which should be available to
13 all school districts as part of a proper education. The
14 definition of a proper education is not static and
15 necessarily will change. Should that change occur as a
16 result of local innovation, all students are entitled to
17 the benefit of that change as part of a cost-based,
18 state-financed proper education."
19 That was the Campbell I decision as quoted in
20 Campbell II.
21 The Campbell II decision went on to say, and I
22 quote, "Campbell discussed this concept after deciding the
23 term "local control" could mean only a local role in
24 implementing a legislatively defined proper education.
25 Because school districts felt strongly that state control
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1 might result in dumbing down the education provided to
2 students, Campbell" -- Campbell I -- "defined the state
3 standards as the best we can do and then provided for
4 local enhancement to ensure that deciding what a proper
5 education was would remain dynamic and continue to
6 evolve."
7 Going on with this Campbell II quote, "Regarding
8 capital construction, Campbell clearly allows a local
9 school district to build facilities considered innovative
10 or world class with money raised locally or by proper
11 taxes not subject to recapture under the constitutional
12 provision and then leaves it to the legislature to ensure
13 that that type of local enhancement does not ultimately
14 create a disparity in equal educational opportunity.
15 "Campbell's discussion about a local role
16 contemplated that by requiring the legislature to define
17 and fund the proper education, the role of a local school
18 district would necessarily change from primarily deciding
19 how to pay for the proper education with inadequate funds
20 to a new and necessary role of raising funding for local
21 enhancement in order to assure innovation."
22 So there is the problem created -- first
23 enunciated in Campbell I, repeated in Campbell II,
24 essentially a blank check for local school districts to
25 come up with innovations that then could become
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1 substantive state standards, constitutional standards
2 which would be enforced by the Court.
3 Now, in Campbell III, the October decision, my
4 interpretation is that they backed off from that in very
5 important ways. Let me quote from the October decision,
6 the decision this month, and as I'm quoting from this,
7 compare it and contrast it with what you just heard in
8 Campbell II quoting Campbell I.
9 "Critical to this issue on rehearing is the
10 recognition that the State is in control of the ultimate
11 amount of spending as it exercises its responsibility of
12 review and oversight of specific projects proposed by
13 local school districts." This is from paragraph 20 of the
14 Campbell III decision.
15 "The constitution simply requires the State to
16 provide capital construction funding of the facilities in
17 the amount deemed necessary to provide facilities capable
18 of delivering the level of educational services determined
19 appropriate by the State.
20 "If a local school district seeks funding in
21 excess of that required to meet state standards, the State
22 is not" -- underline not -- "not obligated to provide such
23 funding, and the local school district can seek it from
24 other sources.
25 "For example, if a school district proposes to
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1 build a new high school of $30 million and the State
2 determines it is able to build a school capable of
3 delivering the educational services required by their
4 standards for $20 million, then the State is obligated to
5 spend only $20 million, and the school district must" --
6 underline must -- "provide funding for that part of the
7 proposal in excess of constitutional state standards."
8 Now, in the progression of logic based on this
9 decision, the question then becomes, well, what is the
10 constitutional state standard? And the Court in its
11 conclusion, I think, adopts what we asked it to adopt in
12 our early briefs on this subject.
13 And I will read that portion here as the Court
14 sums up its holding on capital construction, paragraph 47:
15 "These fundamental precepts apply: First, the State is
16 responsible for funding capital construction of facilities
17 to the level deemed adequate by state standards."
18 Now, the plain meaning of that, if I can
19 editorialize for just a second on that quote, is that you
20 all are in charge of the state standards and the state
21 standards must be adequate. I haven't done a search of
22 our briefs how many times we've used the word "adequate,"
23 but I'm going to do it because that's the standard that we
24 contended for early on before the February 23rd decision.
25 Going back to the quote: "Second, the
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1 legislature is in control of the ultimate amount of
2 spending as it exercises its responsibility of review and
3 oversight of specific projects proposed by local school
4 districts.
5 "Third, local school districts may supply a
6 revenue in excess of legislative spending.
7 And lastly, "Local bonded indebtedness is no
8 longer required."
9 What I take from that is this: That we have,
10 first of all we seemingly have come full circle from
11 Washakie. This language blesses disparity. I can't say
12 it any plainer than that, and it sets a state standard of
13 adequacy.
14 That does not mean that the State can set a
15 standard for construction of school buildings which is
16 less than adequate. It doesn't mean that. It means that
17 the standard must be adequate, and if the standard is
18 adequate, anything over and above that adequate standard
19 comes at the expense of the local districts who can put
20 money into new systems or facilities that they want, and I
21 believe it says that if they do that it will not create a
22 new state standard.
23 I do not believe that we have the same situation
24 prevailing in the program areas of state education, but I
25 do believe insofar as capital construction is concerned
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1 that that very troublesome issue has been resolved in a
2 common sense way which allows school districts to go out
3 and do what they want to do with local funds while
4 allowing or requiring the State to provide a level of
5 adequacy in all buildings that is measured by common
6 sense.
7 Now, the last thing I want to say is with regard
8 to pipeline -- the pipeline projects. The pipeline
9 projects, I think, are covered at page 7 of the October
10 decision. I won't read that to you, but I think what this
11 says is that unless the funds for projects have been
12 appropriated without reservation, without condition, that
13 the new standard applies. You've got to look at these
14 pipeline projects on a case-by-case basis and measure the
15 new standard and apply it at a chronological point in time
16 that allows the pipeline projects that may have emanated
17 before February 23rd where appropriated funds were
18 available, those can remain, and if the pipeline projects
19 then have unconditional appropriations prior to February
20 23rd, then the new standard applies. That's my take on
21 that.
22 Madam Chair, thank you for your patience.
23 COCHAIR DEVIN: We have a question on that
24 last series. Senator Massie.
25 SENATOR MASSIE: Thank you, Madam Chair.
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1 Mr. Hunkins, with regard to the last paragraph
2 you commented on in your comments, was the Supreme Court
3 referring to just the bond issues that were passed? I
4 understand what you're saying with regard to the projects
5 in the pipeline. Wasn't the Supreme Court talking just
6 about bonds that had already been approved by the voters
7 should remain in effect, but for projects that have been
8 in the pipeline but have not gone to the voters yet, then
9 they no longer need to go to the voters?
10 For instance, I'm specifically thinking about
11 Powell. I don't think they've gone to the voters yet and
12 gotten approval for a bond issue, so regardless of what
13 amount we -- the State, the legislature, would give to
14 them, you know, based upon their proposal, we need to take
15 into account that they don't have to go to the voters to
16 get an approved bond issue because they haven't done that
17 yet. Am I reading that correctly?
18 MR. HUNKINS: That would be my
19 interpretation, Senator Massie.
20 I do want to make this preliminary comment with
21 regard to any of these questions about pipeline projects:
22 I think that you deserve the very best analysis and most
23 considered opinion with regard to these issues, so it is
24 hard for me to sit up here and just, you know, pop off an
25 opinion if we're talking about specific fact issues.
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1 And I would encourage you to request an Attorney
2 General's opinion about any specific issue and get that in
3 writing and get the facts understood so that whoever
4 writes that opinion, myself included, knows what we're
5 dealing with as far as the facts are concerned.
6 But my reading of it is consistent with what I
7 just heard you say.
8 SENATOR MASSIE: Thank you.
9 COCHAIR DEVIN: President Coe.
10 SENATOR COE: Madam Chair, thank you.
11 Ray, going to paragraph 47 -- I guess this goes
12 to enhancements -- said the legislature is in control of
13 the ultimate -- and I perceive that word to mean the final
14 amount of money that's spent. Am I reading that properly
15 in thinking that that also includes enhancements; in other
16 words, if a district decides to enhance locally, that we
17 ultimately still have control over what those enhancements
18 might be that they might take back to their local district
19 for local resources? Do we ultimately have the say over
20 what enhancements they can provide?
21 MR. HUNKINS: I don't think so, under my
22 interpretation, and not because of that language but
23 because of the earlier language -- and I'm not sure I've
24 got it marked here -- which talks -- paragraph 27, "Our
25 decisions have neither eliminated nor reduced local
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1 control as it exists today."
2 On October 2nd, 2001, in my opinion local
3 control was a feature of the history of education in
4 Wyoming, not a feature of the current educational system,
5 but I digress.
6 "The Wyoming constitution permits school
7 districts to impose bonded indebtedness up to a set limit.
8 We have decided that the State cannot take this money from
9 a local district for any purpose."
10 Now, you read that along with the portion that
11 you cited in paragraph 47, and I think where you come out
12 is -- at least where I come out is the local school
13 districts can apply their decision for enhanced facilities
14 over and above the adequate level, and they're in charge
15 of that. The State can't take it away from them, nor do I
16 think that the State should want to do that as long as
17 you, and the Court most importantly, buys into my
18 interpretation that this isn't going to set a state
19 standard.
20 Once you back off from that, then your concern
21 is certainly -- becomes paramount. But if you adopt my
22 reading of this, which I think is the way the Court
23 intended it, then the local districts can enhance any way
24 the taxpayers -- their taxpayers will let them do it.
25 SENATOR MASSIE: Madam Chair, just a
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1 follow-up question.
2 On major maintenance, then, if in fact a local
3 district can provide enhancements, whatever enhancement
4 they might decide to provide, that also becomes part of
5 what we fund under our major maintenance funding; is that
6 correct?
7 COCHAIR DEVIN: Before you answer that, I
8 would like to enlarge on that question a little bit in
9 that we have an issue here with routine maintenance and we
10 have an issue with major maintenance. And we face this
11 with community colleges in that there would often be an
12 opportunity for a local donor or local fund-raising to add
13 considerable square footage, even buildings that were not
14 necessarily deemed to be a state need, et cetera, and we
15 have a model in that piece whereby we required that if
16 that was done that a sinking fund for maintenance and
17 operation be a part of that, that it not become a burden
18 of the State or a burden that had to be shared by the
19 other colleges, depending how that funding formula went.
20 And I guess that links with Mr. President's
21 question in do we have that option here? Because
22 certainly we could find ourselves supporting a very
23 elaborate facility in an escalator type, ongoing effect
24 over years which might in fact be more cost than the
25 initial piece.
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1 And I'm wondering, do we have that option of
2 requiring that if a local community does that local
3 enhancement, then they must incorporate in their piece the
4 M&O, maintenance and operations, sinking fund to maintain
5 that?
6 MR. HUNKINS: Madam Chair, I understand
7 that problem and I think that -- let me try this on. This
8 decision does not speak to that issue and so it is
9 difficult for me to give you an interpretation of a
10 decision because it is completely silent on that issue.
11 I would say that a very strong argument could be
12 framed based on the Court's language that the State is in
13 control of spending to an adequate standard that would
14 allow -- at least would not appear to be contumacious or
15 contemptuous of the Court's ruling if you adopted that
16 interpretation, which I think is a reasonable one under
17 this decision.
18 COCHAIR DEVIN: Well, we certainly
19 struggled with community colleges over the years, and that
20 has seemed to be a reasonable solution that has been more
21 fair to all parties concerned.
22 Yes, Representative Baker.
23 REPRESENTATIVE BAKER: Madam Chair, if I
24 could follow up, maybe this is a whole new area, but in my
25 mind it at least isn't. And I'm not really sure how to
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1 frame this. I'm going to set that in the back of my mind.
2 I have a couple other questions here.
3 Is it now the legislature's responsibility to
4 define adequate, adequate, adequate and you've talked
5 about that, and I agree that that is important.
6 To my definition, as I read at least this
7 October decision, adequate seems to be based upon the
8 capability to deliver the basket. Is that correct? Or do
9 we need to define adequate statutorily? Ought we to
10 define adequate statutorily?
11 MR. HUNKINS: You have, Representative
12 Baker, defined adequate in the capacity standards. I
13 believe that further definition with regard to other
14 factors is within your constitutional prerogative under
15 the line of cases.
16 And I think as I sit here and ponder that
17 question, I think that it may be well worth the effort to
18 define adequate in other areas besides capacity and make a
19 good record of why those standards are being adopted and
20 why the legislature believes that they're adequate in
21 order to prophylactically protect you against contentions
22 to the contrary in litigation.
23 REPRESENTATIVE BAKER: I'm going to go to
24 another more specific instance that I -- well, I know this
25 is happening with specific -- with larger districts that
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1 have choice options for their schools. Particularly in
2 the elementary, you have very large enrollments in some
3 buildings and you see absolutely -- I mean, lots of room
4 in others, just because of maybe a choice school, maybe
5 where it is perceived that there are higher quality
6 teachers, those kinds of things.
7 If you look at page 4 which talks about
8 chronically overcrowded creates immediate need, for any
9 school, that's the way I read it, for any school, are we
10 talking building or are we talking district? Do you
11 understand what I'm talking about by chronically
12 overcrowded here but less than two miles away you've got
13 chronically undercrowded -- I mean, you could use that
14 term.
15 MR. HUNKINS: Oh, I understand.
16 Unfortunately the Court used the word "building" in its
17 decision. I would -- my interpretation based on the
18 entire body of law is that the legislature is in charge of
19 making decisions about standards, and one of the standards
20 you could certainly look at is capacity districtwide
21 versus building capacity.
22 So you get away from the -- I won't say it is a
23 tendency, but certainly a danger of gaining the system,
24 no, we don't want to put students in that building two
25 miles down the road because we want a new building, and we
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1 think we're entitled to that loophole.
2 I just think -- and I'm going to be giving to
3 you at the end of this week and the LSO a memorandum which
4 stands for the proposition that the State is in control
5 and the State has to exercise control in order to avoid
6 fraud, waste, abuse, inefficiency and all of the other
7 sins of commission and omission that one can conjure up in
8 thinking about these issues.
9 SENATOR COE: And that does bring me
10 back --
11 REPRESENTATIVE BAKER: And that does bring
12 me back. I hope I have it framed in my mind --
13 MR. HUNKINS: The short answer is yes.
14 REPRESENTATIVE BAKER: I hope I have it
15 framed in my mind how I want to say this. I'm getting
16 back to Mr. President's comment in the concluding
17 paragraph about the ultimate control of spending being
18 vested with the legislature.
19 That -- how does that fit in the areas that are
20 not addressed specifically in the October decision but are
21 carried forth presumably from Campbell I and Campbell II?
22 Does that -- what I'm trying to get here is we've got
23 three decisions. Where do we turn when we want to get a
24 real answer to what our obligations are? I think I know
25 where they are, but in view of the Court decision, where
27
1 do we turn if there is nothing stated, to answer maybe
2 Senator Massie's question, nothing specifically stated
3 here on a specific issue that is addressed in Campbell I
4 or Campbell II?
5 Does this presuppose -- is this the final word
6 on that because this -- the language is very large when it
7 says the legislature is in ultimate control of the amount
8 of spending as it exercises its responsibility in review
9 and oversight of specific projects proposed by local
10 school districts? Does that take into account operations
11 or is this only capital construction? Specific projects
12 are both, in my mind, operations and capital construction.
13 MR. HUNKINS: Madam Chair, I think what
14 we're left with here is a dual system. This October
15 decision can only be read in light of the issues that were
16 raised and those issues all revolved around capital
17 construction. It cannot be read, in my opinion, to apply
18 to the operational, programmatic side of K through 12
19 education in Wyoming.
20 And the problem that was corrected with this
21 October decision, for instance, about local enhancements
22 or capital construction projects is still in place with
23 regard to the programmatic side because this decision
24 doesn't address programs.
25 The -- not only that, but in discrete areas the
28
1 Court has said the districts are in charge of spending and
2 the legislature is in charge of writing them a check, so
3 put capital construction over here and put the program
4 operational side over here. You've got different
5 standards, and the standard in the program area is the
6 same standard that used to apply in the capital
7 construction with regard to enhancements, but it is
8 bolstered and supported by the Court's clear language on
9 the obligation of the legislature to pay for what school
10 districts spend in certain categorical programs.
11 In limited English speaking student programs and
12 economically disadvantaged youth programs, in school food
13 programs, in school activities, and I think there are
14 maybe one or two others; in those areas the Court has said
15 that the district will spend what they think they need to
16 spend and the legislature will write a check for that
17 expenditure.
18 Now, it is true that they invited oversight.
19 They use that term, "Oversight." Oversight is different
20 than control. The problem is they've given you the
21 ability to oversee spending, to watch it, the conception,
22 the implementation, so this is part of the subject of this
23 memorandum that I'm going to be giving the LSO the end of
24 this week.
25 I do think, in specific response to your
29
1 question, that the October decision cannot be interpreted
2 to affect the program areas.
3 REPRESENTATIVE BAKER: Thank you.
4 COCHAIR DEVIN: Senator Massie.
5 SENATOR MASSIE: Thank you, Madam Chair.
6 I just want to make sure I have the term
7 "control the amount of spending" in paragraph 47 set in my
8 mind as to what the Supreme Court appears to be getting
9 at.
10 What they're stating, I think, what the Court is
11 stating is that the State doesn't have discretion over
12 whether or not to bring schools up to standards, it must
13 do that; that the State is required to spend whatever
14 money is necessary to bring school buildings up to a
15 certain standard, and they can do that through major
16 maintenance, capital construction, whatever, and the
17 standard being is to bring them up to the point where
18 routine maintenance money through the operations formula
19 is sufficient to keep the building at that particular
20 level.
21 What it appears to be giving us is the
22 discretion that when local school districts come to us and
23 say, "This is how we propose bringing our buildings up to
24 this standard and our proposal costs $20 million," the
25 State can step in and say, "Well, we reviewed it, but we
30
1 have another way of getting to the standard and it only
2 costs $5 million and we choose to go in that direction."
3 Is that an accurate interpretation of what the
4 Supreme Court is stating?
5 MR. HUNKINS: I think so. I think that's
6 well put, Senator Massie. The State is in control of
7 expenditures, is in control of the ultimate amount of
8 spending. That's -- don't anybody quote me -- but that's
9 somewhat ambiguous.
10 But I think that we get to the same place
11 because it is unambiguous that the State is in control of
12 setting the standards. So I can buy into what you say
13 because I don't think the State can set the standards and
14 then refuse to fund the necessities to bring the
15 construction up to the minimum standards.
16 SENATOR MASSIE: Thanks.
17 COCHAIR DEVIN: Representative Simpson.
18 REPRESENTATIVE SIMPSON: Thank you,
19 Madam Chair.
20 Mr. Hunkins, paragraph 5, you talked about that
21 paragraph and I view that second sentence of that
22 paragraph as a recitation by the Court of the
23 constitutional requirement.
24 MR. HUNKINS: What paragraph?
25 REPRESENTATIVE SIMPSON: Number 20, the
31
1 second sentence, "The constitution simply requires the
2 State to provide capital construction funding of the
3 facilities in the amount deemed necessary to provide
4 facilities capable of delivering the level of educational
5 services determined appropriate by the State."
6 Does that capital construction funding -- that
7 includes, to me, everything but routine maintenance
8 funding, or would that include that? And if it is all
9 inclusive, meaning any money you spend on a building is
10 capital construction funding, then certainly the State
11 would have the ability or authority under the constitution
12 to say, "Look, we don't have to fund anything related to
13 your local enhancements, routine maintenance, anything at
14 all. You've made the choice to achieve the enhancement,
15 but we don't deem it necessary to give you the adequate
16 standard"? I mean, does that follow? Is that what
17 they're saying? Is that what the Attorney General's
18 opinion, if we requested one, would touch on? I mean, do
19 you have thoughts on that?
20 MR. HUNKINS: Madam Chair, I think --
21 Representative Simpson, that this is in some respects the
22 issue that the chairperson brought up, and I don't think
23 that the decision speaks to the issue of maintaining
24 enhancements.
25 I do think that a very cogent, reasoned argument
32
1 can be made and the person making it would not be
2 embarrassed in making it before the Supreme Court in that
3 the language you just cited stands for the proposition
4 that the legislature can require maintenance and major
5 maintenance and repair and renovation and whatever else is
6 done discretely with these enhancements to be the
7 financial obligation of the entity that has made the
8 decision to construct the enhancement.
9 I would not be embarrassed to make that
10 argument. I think it follows logically from the language
11 that you quoted to me.
12 REPRESENTATIVE SIMPSON: Thank you.
13 COCHAIR DEVIN: Senator Anderson.
14 REPRESENTATIVE ANDERSON: Thank you.
15 Mr. Hunkins, going back to an earlier
16 hypothetical offered by Senator Massie in regard to his
17 hypothetical of the $20 million request on the part of a
18 local school district and a response of what the State
19 felt was adequate at, say, $5 million, so there was quite
20 a disparity, given some of the discussion you offered in
21 terms of how the Court defines the legislature as being,
22 quote, in control, and also taking into consideration
23 determining what is adequate, all of those things, I guess
24 the question is given this circular path that we seem to
25 be following, are we then at risk of getting back into the
33
1 local district makes a request, the State responds with
2 something that's not in the local's opinion adequate, then
3 are we back in court to resolve that difference or is the
4 language in that opinion solid enough that we are, in
5 fact, in control and the buck can then stop with the
6 legislature? Is this opinion adequate enough to break
7 that cycle that we're now in of going from local to the
8 legislature to the courts and back?
9 MR. HUNKINS: Madam Chair, Senator
10 Anderson, I think what you're essentially asking me is can
11 we guarantee that there isn't going to be any future
12 litigation?
13 REPRESENTATIVE ANDERSON: Essentially.
14 MR. HUNKINS: And my response is no, we
15 can't. In fact, I'm sad to say that I think that there
16 will continue to be litigation in this field until the
17 Court draws some bright lines that aren't in existence
18 today.
19 I do, however, feel that this Court has become
20 aware of some of the practical problems in a
21 state-controlled K-12 education system and has stepped up
22 to the plate and responded in this latest decision in a
23 way that makes life easier for you, for the attorneys that
24 are representing the State, and for the school districts.
25 COCHAIR DEVIN: I guess as a follow-up
34
1 question to that, it brings me to question, we have a bill
2 in front of us today that we will be working, and this
3 committee has been leaning towards developing a structure,
4 a system to handle these issues, some modeling following
5 our own water development, the Arizona model, things that
6 we've looked at.
7 But would a system that employs the appropriate
8 reviews and provides the appropriate experts and some
9 consistency in addressing those from district to district,
10 these issues of construction from district to district --
11 in other words, would a relatively strong system with
12 expertise, appropriate expertise in it strengthen our
13 position in terms of perhaps toning down that legal threat
14 that Senator Anderson speaks of versus we've had so much
15 nebulous up to this point struggling with transition?
16 Do you see our position -- that as being more
17 defendable, perhaps bringing it into this litigation,
18 versus something looser in structure and do you have any
19 feelings on that?
20 MR. HUNKINS: Madam Chair, I have been
21 provided with two bills. One is 52 pages long. I've
22 thumbed through them. It would be a disservice to you to
23 give you any opinion about the bill until it gets the
24 study that it deserves.
25 Having said that, however, I think you're in a
35
1 stronger position with regard to capital construction. I
2 think that the -- going forward, that it is going to be
3 easier to act responsibly and it is going to be easier to
4 defend the legislation that intends to implement
5 responsible reaction to the Court's opinion than we were
6 before October 2nd.
7 And I do have to draw distinction between
8 capital construction and operating. I don't know what you
9 have in mind for the programmatic and operational issues,
10 but they're over here and they're more problematic now, in
11 my opinion, than are the capital construction issues.
12 COCHAIR DEVIN: And I guess I was not
13 asking so much in regard to a specific bill as to the
14 establishment of a structure or system with the expertise
15 in it that we have not to this extent tried to centralize.
16 REPRESENTATIVE SIMPSON: Madam Chair.
17 COCHAIR DEVIN: Representative Simpson.
18 REPRESENTATIVE SIMPSON: Mr. Hunkins, in
19 your memo to the LSO are you going to address the dual
20 system aspect of it in what I see are differing standards,
21 especially on local enhancements, where as far as, say,
22 programmatic the best we can do and now in building is
23 adequate? Can you identify those clearly, how those dual
24 standards or dual systems work next to each other and what
25 the standard is relative to the other? That would really
36
1 help me to have something like that, if that's anywhere
2 you're going with that.
3 MR. HUNKINS: Yes, I have a draft in place
4 and it has been circulated for comment back, and the draft
5 does make that comparison sort of side by side.
6 REPRESENTATIVE BAKER: I have a question.
7 COCHAIR DEVIN: Representative Baker.
8 REPRESENTATIVE BAKER: It doesn't have to
9 be final, but maybe, maybe. Is there a time -- is there a
10 bright line as far as before this innovations/local
11 enhancements have to be met and after this they don't?
12 Before we were the under the assumption from the first
13 decisions that local enhancements as they became part of
14 systems became the new standard for everybody, system --
15 systematic.
16 Now, at least in capital construction, that is
17 not necessarily true. Okay. But let's say local
18 enhancements in those areas that have had local wealth and
19 their programmatic and capital constructions are
20 significantly advanced, does this -- does October 2nd
21 become a date certain that you have to match everything
22 before that and not everything after that or is this
23 ubiquitous, this decision?
24 MR. HUNKINS: These are tough questions.
25 I think, Madam Chair, you've got to draw a distinction
37
1 between capital construction and the operating side.
2 Because of the way this opinion is written, you heard that
3 it is the statement the big print giveth and the small
4 print taketh away. Those of us that deal with contracts
5 often cite that. And in some respects this opinion says
6 one thing and then goes about doing something else.
7 But the way that it is written, I think the
8 hallmark date is February the 23rd because they say,
9 "We're not really changing anything, we're just clarifying
10 what we meant." And with that in mind, February 23rd
11 becomes the date by which all matters must be judged.
12 REPRESENTATIVE BAKER: I think there's
13 another question there, but I'm afraid to ask it.
14 COCHAIR DEVIN: Are there other questions?
15 Yes, Senator Cathcart.
16 SENATOR CATHCART: Madam Chair, I guess on
17 all this enhancement I'm really troubled because
18 considering Senator Coe's questions and Senator Devin's
19 follow-up, et cetera, it seems to me that the State has no
20 control over local enhancements; however, under the
21 original decision there was a lot of discussion about
22 equal opportunity and all of that.
23 And what I'm concerned about is districts with
24 local wealth creating enhancements that ultimately sort of
25 paint us into a corner when those enhancements become
38
1 significant enough that they raise the standard for
2 everyone.
3 Because under the equal opportunity language, if
4 a wealthy district provides a lot of enhancements in their
5 district, which apparently we have no control of, does
6 that set the standard statewide that now we have to match
7 that? That's really troubling to me.
8 MR. HUNKINS: Madam Chair, well, I can see
9 why it would be, Senator Cathcart. I think the way you've
10 got to look at this, the way I have to look at it in order
11 to make sense out of it is that on February 23rd the Court
12 set some standards and had some language that on October
13 the 2nd it withdrew from.
14 That's the only sense that I can make out of
15 these decisions because they're inconsistent, and you
16 can't make, you know, a silk purse out of a sow's ear.
17 They're inconsistent.
18 My opinion, based on what the Court has said on
19 October 2nd -- and after all, it is just my
20 interpretation, I'm sure that there can and will be
21 others. But my interpretation is that the Court has
22 removed the very big problem of local enhancement becoming
23 state standards. That was a problem that was first
24 established as part of the Wyoming constitution in the
25 Campbell I decision in '95. And in Campbell II they built
39
1 on that in the area of capital construction using the
2 program language which was what Campbell I was talking
3 about when they were talking about local enhancements. It
4 wasn't capital construction, it was programs.
5 But Campbell II took that in the February
6 decision and used that language to support the idea that
7 school districts could provide enhanced facilities which
8 would or could become statewide standards. And I remember
9 visiting with you in times past about the hypothetical
10 planetarium in Gillette that becomes a state standard,
11 that every school district needs a planetarium.
12 I think the Court removed that as a problem and
13 they did it with, I think, unequivocal language that said
14 if a school can -- if an adequate school -- adequate
15 defined by the State -- adequate school can be built for
16 $20 million and a school district comes before the state
17 legislature and says, "We want a $30 million structure
18 because we believe that we have to have an auditorium that
19 serves the community" -- serves 800 people as opposed to
20 200 students -- the Supreme Court has said in very clear
21 language that the State is not obligated to build that
22 800-person auditorium. The State is obligated to build an
23 adequate facility and that 800-person auditorium,
24 therefore, is not going to become a new state standard
25 that's applicable all over the state of Wyoming.
40
1 I share -- you know, your troubled countenance
2 leads me to believe that you're troubled by that. The
3 only way you can look at it is that in February the Court
4 said one thing and in October they said something else
5 which was different.
6 COCHAIR DEVIN: Senator Massie.
7 SENATOR MASSIE: Madam Chair, I probably
8 differ with everyone else here, but I do see a little bit
9 of consistency among the three decisions on the issue that
10 Senator Cathcart raised. The example I would use, if
11 Campbell County says they want to put in two olympic-sized
12 swimming pools and the expense is on them, we don't have
13 to duplicate that in every other district in the state
14 because they can't prove that that has enhanced that
15 educational basket of goods and services.
16 But if a district comes along and on their own
17 money comes up with a technological innovation that does
18 lead to students' abilities to learn science better and
19 they can prove that that has enhanced the basket, then,
20 indeed, the State would need to incorporate that into
21 their standards because that has affected the quality of
22 the education that it would get.
23 I realize that's very much still in a gray area,
24 but I don't see local enhancements are automatically going
25 to come back to the State responsibility to fund it in
41
1 every district. I think the burden of proof is whether or
2 not it actually enhances the ability of those students to
3 learn that educational basket of goods and services.
4 MR. HUNKINS: Madam Chair, may I just
5 respond? You recognize, I'm sure, you've mixed apples and
6 oranges there? Senator Cathcart's question was about
7 capital construction and you have used an example of
8 consistency in the programmatic area. And I just want to
9 point that out because I agree with what you said, but I
10 agree with what you said because I interpret your example
11 as being in a programmatic area.
12 SENATOR MASSIE: Madam Chair, in response,
13 I think the way I perceive it, it is apples and apples
14 because one of the elements in capital construction in
15 determining suitability is technological suitability and
16 whether or not those buildings could sustain a certain
17 type of technological use.
18 And so that's why I specifically mentioned a
19 technological innovation, because that could require
20 modification of buildings around the state in order to
21 accommodate that technological accommodation.
22 So I think that technological innovation -- so I
23 think I am comparing apples and apples from that
24 perspective. I realize I was also talking about the
25 educational basket of goods and services in programs, but
42
1 I was trying to use two examples of a capital construction
2 in terms of local innovation that one could eventually
3 affect the entire state and the other one could not.
4 COCHAIR DEVIN: Senator Anderson.
5 REPRESENTATIVE ANDERSON: I'm aware of
6 time and I'll try to phrase this so you can give a shorter
7 answer.
8 But in regard through this whole thing you've
9 talked about the dual system and we've had conversations
10 in regards to apples and oranges in regard to the dual
11 system. In your upcoming memo you've used the term
12 "bright line." I assume you're going to draw a bright
13 line between the dual systems.
14 My whole point is that this whole exercise that
15 we've been going through through the years in this state
16 has to do with one thing and that is how to bring about
17 better achievement for the students. At some point we
18 have to merge this dual system, in my opinion, regardless
19 of whether we bring about that outcome through better
20 buildings or better instruction.
21 My question to you as you address this dual
22 system in the upcoming memo, are you going to address
23 anything having to do with how we merge this system or are
24 you going to draw the line of distinction as you did
25 earlier in the conversation we just had?
43
1 MR. HUNKINS: Madam Chair, Senator
2 Anderson, the dual system was created as a result of Court
3 opinions. There's nothing that anybody can do to resolve
4 that absent -- until another Court opinion emerges.
5 COCHAIR DEVIN: So your memo will
6 essentially address the Court opinion and we will still
7 have the very practical problem of raising student
8 achievement through the expenditure exercise as another
9 matter?
10 MR. HUNKINS: Madam Chair, the subject of
11 the memorandum is MAP's May report to you about local
12 control. That was what I was asked to do. And if it
13 tries to highlight some issues that are important in
14 making a policy determination of the four choices that MAP
15 laid out to you from total state control on through a
16 system pretty much similar to what's in existence today.
17 REPRESENTATIVE SIMPSON: Madam Chair, I'm
18 sorry. One last --
19 COCHAIR DEVIN: Representative Simpson.
20 REPRESENTATIVE SIMPSON: Thank you.
21 Ray, I'm not able to get over this language on
22 page 49 of Campbell II --
23 MR. HUNKINS: Campbell II.
24 REPRESENTATIVE SIMPSON: Campbell II,
25 paragraph 126, where it talks about regarding capital
44
1 construction, Campbell clearly allows a district to build
2 facilities considered innovative. And then it says -- and
3 then leaves it to the legislature to ensure that type of
4 local enhancement does not ultimately create a disparity
5 in equal educational opportunity.
6 I don't see how you can allow -- or how you can
7 have an enhancement that does not create a disparity in
8 equal educational opportunity.
9 The standard to me is a moving target. If it is
10 adequate, as you're suggesting that the standard is
11 adequate, you allow a local enhancement that creates
12 something above average or above adequate, and then you're
13 creating the disparity of the educational opportunity.
14 How can -- I can't even rationalize it or it is
15 not logical to me that you can have both of those things
16 in two different opinions. Can we ask for more
17 clarification? I just don't get it.
18 SENATOR CATHCART: Me, either.
19 MR. HUNKINS: There isn't a procedure to
20 ask for more clarification. The mandates come down. And,
21 you know, Representative Simpson, my advice based on
22 this -- these opinions is this: I think the legislature
23 has been given some room to do your work, to apply your
24 discretion, and I think that that's what you ought to do,
25 work your will on these issues as you see fit.
45
1 If a specific issue is troublesome as to whether
2 it is, you know, outside of the parameters of the
3 decision, we can sure discuss that and provide advice to
4 you, but it is difficult to reconcile the February
5 decision and the October decision, even though the Court
6 in its October decision doesn't say that we're changing
7 anything. But as sure as God made green apples, they've
8 changed some things and you've put your finger on a couple
9 of the items.
10 REPRESENTATIVE SIMPSON: Well, Madam
11 Chair, this is an invitation for more litigation, the way
12 I see it. I mean, down the road if local enhancements are
13 done and in two years -- I mean, if I were a poor school
14 district and I couldn't get an enhancement, all I have to
15 do is say, "Well, look, right here in Campbell II it says
16 this, equal educational opportunity. We obviously don't
17 have that, nothing in Campbell III changed it, so it can't
18 be constitutional or fair."
19 I mean, I --
20 MR. HUNKINS: I'm sorry, nothing in
21 Campbell III changed what?
22 REPRESENTATIVE SIMPSON: Well, I don't
23 think Campbell III -- Madam Chair, I don't think Campbell
24 III clarifies it enough to say that this -- if a disparity
25 in equal educational opportunity is created by the local
46
1 enhancement that you don't have to address that. I don't
2 think Campbell III addressed that question. Maybe I'm
3 wrong.
4 And, Madam Chair, I don't want to get into the
5 minutiae here, but I just -- there's so many unanswered
6 questions on that point, which is a significant point
7 because it is hundreds of millions of dollars, again.
8 MR. HUNKINS: Madam Chair, I guess the
9 question is if this is subject to two reasonable
10 interpretations, which is going to be your operating
11 premises? And I suggest to you that good common sense
12 would require that you take my interpretation of this --
13 which I think is the correct interpretation. I'm not
14 going to guarantee it, but I believe that it is the
15 correct interpretation -- and you run with it because if
16 you do something else, you're going to have a lot of
17 problems, a lot more than you've got right now.
18 SENATOR COE: Madam Chair, to bring up one
19 thing that you just brought up, if I was going to
20 summarize a little bit of what I see in Campbell III, it
21 would be the use of two words that weren't in Campbell I
22 and II, and that's common sense because that's in Campbell
23 III. Am I correct in saying that?
24 MR. HUNKINS: Yes, you are.
25 SENATOR COE: So I think it is inherent
47
1 upon us to use some common sense in this whole deal as we
2 go about our business.
3 COCHAIR DEVIN: Any other questions?
4 Then I would like to take just a little bit more
5 than a ten-minute break. If we could come back at 10:25,
6 we will get started on Mr. Cromwell's facilities
7 guidelines.
8 (Recess taken 10:13 a.m. until 10:30 a.m.)
9 COCHAIR DEVIN: Mr. Cromwell, you have the
10 state facility guideline review that we would like to do
11 before we start on the legislation pieces to give us a
12 better understanding.
13 MR. CROMWELL: You have a copy of the
14 report in front of you, and as you and the committee
15 members know, MGT has been conducting reviews of the
16 pipeline projects and as part of that review we've been
17 looking at how the projects align with the state
18 guidelines.
19 And it is -- this report is, in essence, a
20 product of what we've learned in those reviews and looking
21 at these proposed projects.
22 I would like to say from the outset I think the
23 Department of Ed has done a good job in establishing
24 facility guidelines. They've looked at guidelines from
25 other states, and they've conferred with professional
48
1 planning organizations and other consultants. And so I
2 think that now we have the benefit of looking at those
3 guidelines in relationship to projects that are being
4 proposed, and so we now have some insight we can add to
5 hopefully fine-tune the existing guidelines.
6 Just -- the report consists of about four pages
7 of narrative and then there's -- we've taken essentially a
8 chart which lists most of the major guidelines and either
9 made comments or recommendations regarding those. And
10 then there's a couple of appendixes I'll review with you
11 as we go through the report.
12 I guess what I would like to do just to kind of
13 summarize our major observations, recommendations, and
14 you'll find these listed on page 3 of the report.
15 First, I think that the existing gross square
16 foot standards that are in place are appropriate for
17 schools larger than 300 to 400 students as the guidelines
18 indicate.
19 But what we've found might be helpful to do is
20 to develop some models for schools so that the districts
21 and the designers will understand what in detail would be
22 included in those schools that would make them adequate to
23 provide the basket of goods.
24 And I think these models -- it is really
25 necessary that these models be developed in conjunction
49
1 with a facility planner and an educational planner so that
2 they reflect the kind of program that's necessary to
3 deliver the basket of goods.
4 Item two, we ran some data with the Department
5 of Ed and found out that about 86 percent of the Wyoming
6 schools are less -- smaller than 350 students or less than
7 400 students, and if you look at Appendix A, that data
8 presented there for you, there are four bar charts, one
9 showing the size distribution for elementary schools in
10 the state; one showing middle schools and junior highs;
11 and one showing high schools; and the fourth chart shows
12 you the distribution of all of the schools.
13 And you can see that a majority of the schools
14 fall in that size range of less than 400 students, which
15 means that the current standards really don't apply to
16 them as appropriately as they could as far as the gross
17 square foot standards.
18 So what we would do, we would recommend that
19 models be developed, model guidelines be developed for
20 schools in that size range.
21 And in Appendix B we've provided examples of the
22 kinds of models we're thinking of. And I would like to
23 stress this is an example. We're not recommending that
24 this model be the answer. We developed this without the
25 help of an educational planner, and there's a lot of
50
1 questions in these models that obviously would need to be
2 dealt with.
3 But I'll just walk you through the first one
4 here on page 28 so at least you can make sense of it. At
5 the top of that chart you will see kind of an equation
6 that says 14 teaching stations times 9 students per
7 teaching station times an 80 percent utilization equals
8 100 student capacity.
9 Basically what that is doing is setting a
10 formula for how to calculate the capacity of the school.
11 And it is just taking the number of teaching stations
12 times the average class size and then times a utilization
13 rate.
14 What we found in our reviews is that in one
15 school that was for a hundred students, they presented us
16 with a class loading chart and the average class size in a
17 small school like that was about nine students, so classes
18 went from as few as 1 or 2 students up to as many as 17,
19 18 or 19.
20 So the class size then obviously has a real
21 effect on the number of classrooms that you have and your
22 utilization rate.
23 As you can see as you go to the next example,
24 for 200 students we've increased the average class size to
25 12 and then at 300 students we've increased it to 15.
51
1 And if you also will look at the bottom of each
2 chart, you will see the average gross square feet per
3 student declines as the school gets larger, and so this is
4 just a breakdown of the types of spaces that we would
5 project would be in these schools.
6 Again, I want to caution everyone that this was
7 done kind of in isolation and certainly doesn't
8 necessarily reflect that this program would be the end-all
9 to deliver the educational basket of goods, but it is an
10 example of the kind of thing that I think would be very
11 helpful for districts and designers in schools today to
12 have.
13 Back to page 3, our third comment is that
14 currently the capacity for new schools is limited to 10
15 percent of the last year's enrollment, and what we've
16 found is that districts are applying for projects based on
17 that calculation. They take last year's enrollment, add
18 10 percent to it and then they design the project for
19 that, as opposed to designing a project based on what
20 their actual enrollment may be for the next ten years.
21 So we would recommend that school capacity for
22 new schools be based on enrollment projections that are
23 developed in a comprehensive way which show and validate
24 the reason for the size of the school.
25 We would also add that when you have a district
52
1 that enrollment projections show that they're going to
2 have a decline in enrollment, the district would be
3 required to develop strategies to deal with that so that
4 we don't end up in a situation where we're overbuilding
5 facilities.
6 COCHAIR DEVIN: We do have a question on
7 that.
8 SENATOR MASSIE: Madam Chair, this sounds
9 good, but to add to that, is something in the design
10 elements that you're working on that would either require
11 or strongly suggest to school districts that they build
12 the buildings in such a way that they easily accommodate
13 additions?
14 Wyoming has had a boom and bust economy for so
15 many years here that sometimes ten-year predictions can be
16 thrown out the window in a matter of months. Methane gas
17 boom now is a good example. It seems to me we would want
18 to build into these design structures the flexibility to
19 add things on, perhaps even temporary structures, in order
20 to accommodate these but that meet certain standards.
21 MR. CROMWELL: Madam Chair, Senator
22 Massie, I think it is a very good observation. The
23 majority of projects we've seen recently have that ability
24 to add on.
25 COCHAIR DEVIN: And I guess as an adjunct
53
1 to that, how practical is it that they have the ability to
2 close down sections? Because we see that piece also, and
3 the frustration of districts having to deal with having to
4 heat an entire building regardless of enrollment that's 50
5 percent of what it was when that building was built.
6 MR. CROMWELL: Madam Chair, I think that
7 possibility exists. It would require the planning,
8 especially in the heating and ventilating systems, where
9 you could shut down portions of buildings.
10 Item 4 is dealing with the method of calculating
11 design capacities, and we've found that people are taking
12 a different approach, not for any particular reason other
13 than just there's a lot of different approaches you can
14 take to calculating capacity of a school or design
15 capacity of a school, and we feel that the guidelines
16 ought to incorporate a method which spells out exactly how
17 capacity is going to be calculated.
18 And three of the items -- and these are not the
19 only issues, but three of the items that need to be talked
20 about and defined are the definition of a teaching station
21 in relation to calculating capacity. Obviously a center
22 is wherever we have a teacher teaching students. We can
23 consider that a teaching station.
24 But let me give you an example: For instance,
25 we're seeing elementary schools now designed with an art
54
1 room specifically for teaching art, which is nice because
2 then you have the equipment in that room that allows the
3 teacher to have a full program. But typically that art
4 room doesn't increase the capacity of that school because
5 those students that go there just go there for a period a
6 day or a period a week and go back. So we need to be able
7 to define exactly what a teaching station is in
8 relationship to capacity.
9 We also need to have some guidelines as to the
10 average number of students that we expect at a teaching
11 station, and that will vary depending on the size of the
12 school, as we've seen in the projects that we've been
13 reviewing. And that should have some relationship,
14 obviously, to the educational program and the operations
15 funding model as well.
16 And then we need to have some agreement on the
17 desirable utilization rate. What a utilization rate is
18 doing is simply saying that we're not always going to have
19 every class filled with the average number of students,
20 that there's going to be fluctuations, so we realize that
21 so typically we see utilization rates of 80 to 90 percent
22 being kind of the promotive standard.
23 COCHAIR DEVIN: Representative Baker and
24 then Senator Anderson.
25 REPRESENTATIVE BAKER: Thank you,
55
1 Madam Chair.
2 Mr. Cromwell, do you look at these guidelines
3 that you've set up here and these three variables about
4 teaching stations and average number of students and
5 utilization -- we're looking at and I'm trying to put the
6 discussion here with the legal discussion that we've just
7 had.
8 How do we develop something like this that has
9 some flexibility where we won't get sued when we set up a
10 standard that says for a classroom -- a high school that
11 has 100 students, we calculate that there will be 9
12 students per teaching station and it goes to 120 and now
13 we have 12 students per teaching station and we're outside
14 the capacity and we have to build again? Do you
15 understand what I'm saying?
16 How do we set that up where we define capacity
17 as a part of a moving dynamic of population and
18 recognizing that 12 students certainly is not an
19 overutilization of a teaching station? Do you understand?
20 I'm trying to get from what you're saying to the legal
21 aspect and guard against that -- prophylactic, if you
22 will, as Mr. Hunkins used, against that lawsuit that says
23 design specs for 9 students, we've got 12, we build?
24 MR. CROMWELL: Madam Chair, Representative
25 Baker, I think I'll take Mr. Hunkins' tactic because I
56
1 don't think we can do something that will eliminate
2 lawsuits.
3 But I think we can, with incorporating
4 educational planners and looking at the educational basket
5 of goods, establish some models and ranges that will
6 accommodate that educational basket of goods -- and I
7 think that the term "guidelines" is a very important
8 one -- and develop guidelines that are not necessarily
9 rigid, but that give guidance to designers and school
10 districts of the direction they need to go in.
11 And perhaps the only standards may be a
12 bottom line standard that says, "Okay, here is the bottom
13 line. Here's some guidelines. You can do what you want
14 as long as you meet the bottom line." That may be one
15 approach.
16 REPRESENTATIVE BAKER: So your
17 recommendation would be statutory standards and rural
18 guidelines? Is that a logical step?
19 MR. CURRY: Let me join you on this one --
20 it would be up to you -- Madam Chair, Denis Curry.
21 Representative Baker, it would be up to you
22 whether you wanted to put the standards in statute or not
23 or to delegate that to an agency to create standards.
24 Definitely guidelines would be more flexible and would be
25 probably the responsibility of the administering agency
57
1 and would probably be flexible enough to respond to those
2 kinds of situations so that you didn't find yourself with
3 instant triggering mechanisms.
4 REPRESENTATIVE BAKER: Thank you.
5 REPRESENTATIVE ANDERSON: Thank you,
6 Madam Chair. If I may indulge in a comment, this comes
7 from someone who comes from the very epicenter of boom and
8 bust.
9 When we talk about design capacity and other
10 things in regard to school design and flexibility for
11 growth or for decline, you also I think in regard to that
12 same possibility, need to take into consideration some of
13 these school buildings are going to be occupied for
14 hopefully 30 to 50 years, so you're going to have to
15 accommodate the flexibility of instruction.
16 And having come from a place that has given a
17 lot of attention to that and visited schools from Arizona
18 to Utah in regard to flexible buildings, there are ways in
19 which you can put flexibility within walls. So I have
20 actually personally taught in a building that has gone
21 from a low of 25 students to 700 students in that same
22 building. That's not a comfortable setting, but that was
23 a situation until we got another building completed.
24 In regard to that whole thing of flexibility,
25 not only of capacity but flexibility of instruction where
58
1 we talk about collapsible, portable walls, partitions and
2 things like that, I think it behooves all of us to
3 understand the instructional methods we practice today may
4 be quite different 25 years from now but we'd still be
5 confined to the same spaces. Let's look at the dual
6 regard in terms of flexibility.
7 COCHAIR DEVIN: I guess a question on
8 that, perhaps, of our staff or our staff and the
9 department. There's a recommendation here that these
10 three variables need discussion and definition.
11 Do we have groups in place that would begin the
12 discussion necessary to bring these to a point of
13 definition at this point in time? How have we handled
14 this in the past and what is in place?
15 MR. NELSON: Madam Chairman, I'll respond.
16 I'll let Mary Kay supplement anything I may not know of,
17 but essentially my understanding was that the standards
18 and the guidelines were first established by -- there was
19 a group that was used by the department in putting that
20 together, the original standards and the original
21 guidelines.
22 From that point on, I believe the department has
23 revised those as an agency in terms of meeting any type of
24 flexibility. And so I guess in responding to your
25 question, I don't see a group other than the state
59
1 superintendent does have that advisory group which is
2 comprised to assist her and to work with her on putting
3 together capital construction recommendations.
4 Always under that law was a requirement that the
5 agency, the department was to constantly review building
6 standards and guidelines and annually take that review and
7 as times change and as conditions change, to modify rules
8 as necessary.
9 So they were given a legislative directive to
10 keep the rules and regs current as possible or to fit
11 conditions as need be. Other than the agency and the
12 capital building advisory group, I don't know of any other
13 group in place that could do it today as we sit here. But
14 I would think that would be the avenue that would work on
15 this.
16 MS. HILL: Madam Chairman, what has
17 occurred is that the variations come in the form of
18 applications from school districts into that capital
19 construction advisory group.
20 So in light of the October 2nd Supreme Court
21 decision, I think what you will task the executive branch
22 with doing is to establish that basic standard, and
23 that -- whatever entity, whether it is a citizen group,
24 commission or Department of Education -- those people
25 would be working cooperatively with qualified contract
60
1 assistance to provide a little bit of both specificity as
2 well as flexibility.
3 And I think that the MGT report that you're
4 looking at right now actually does recommend both, more
5 specificity and some flexibility to deliver the
6 educational program when you get below what the standards
7 are currently providing.
8 COCHAIR DEVIN: So you have some
9 capacity -- you have capacity within the agency to begin
10 to address this; the question will be is whether you're
11 going to need any more, whether we will do any more
12 development of tasking as we go along?
13 MS. HILL: Madam Chair, you are correct.
14 We would need the resources of MGT to help the department
15 in that respect, but in terms of the vehicle to make those
16 changes, I believe we're satisfied that the rules would
17 provide some flexibility -- or the legislation provides us
18 the flexibility to change it within the rules.
19 COCHAIR DEVIN: And so what you need,
20 basically, to work with your groups would be the expertise
21 of MGT or another --
22 MS. HILL: Yes, Madam Chair, that's
23 correct.
24 COCHAIR DEVIN: Go ahead.
25 MR. CROMWELL: Item number 5 goes back to
61
1 the issue of auditoriums, and I believe there should be
2 some more discussion about auditoriums. As we've seen by
3 the size of schools in this state, the guideline currently
4 says that a school under 600 should not have an
5 auditorium, they should use the multipurpose room.
6 As you can see by the size distribution of
7 schools, most schools in the state are under 600, which
8 would lead one to assume that most schools in the state
9 are not going to have auditoriums then. And there are
10 districts that don't have any schools over 600, so those
11 districts would not have an auditorium under the state
12 guidelines, which may be well and fine.
13 It seems to me if there are times when an
14 auditorium is required to deliver the basket of goods,
15 then we need to define when that is. And I would -- I
16 would guess that it would not be necessarily dependent
17 only on the size of the school but more so the program
18 that one is trying to deliver.
19 So I just comment that I think that discussion
20 needs to happen and get some resolution to this issue.
21 Likewise number 6 talks about the need for more
22 than one gym. And the guidelines provide for one gym, but
23 we're seeing a lot of schools saying, "We need more than
24 one gym because we've got multiple boys' and girls' teams
25 in various sports and we can't provide the practice
62
1 sessions and the games and the schedules and that kind of
2 thing with just one gym.
3 And so there's probably at some -- a size of
4 school at which, you know, two gyms does become
5 appropriate, and we need to explore what that size is and
6 whether or not the current guidelines provide for that.
7 Again, I go back to, well, if we develop a model
8 that shows what's in a school of 600 or 700, we will be
9 able to answer that question.
10 Finally, we recommend that the guidelines be
11 revised by the agency with which the legislature places
12 the responsibility for administering the capital
13 construction program. And we strongly, strongly recommend
14 that any revisions or new guidelines be developed by
15 educational planners as well as facility planners so that
16 they reflect what is necessary to provide the educational
17 basket of goods.
18 That's the major comments and observations. You
19 can go through the charts and you will see other minor
20 comments, but I don't think it would probably behoove us
21 to do that at this time.
22 COCHAIR DEVIN: Representative Baker.
23 REPRESENTATIVE BAKER: Madam Chairman,
24 when we look at facilities guidelines and requirements --
25 this gets back into the legal side that I'm still thinking
63
1 about that Mr. Hunkins was talking to us about. And yet
2 obviously those facility requirements and guidelines are
3 and do set according to the Supreme Court's decision --
4 they set a legislative mandate, constitutional mandate to
5 the legislature to fund. And yet the recommendation here
6 is an agency is developing these guidelines rather than
7 the legislature.
8 Why wouldn't we be developing those or why
9 shouldn't we be developing those as the legislature,
10 because that drives our funding, drives -- according to
11 the Supreme Court's decision, a constitutional requirement
12 for legislative funding?
13 MR. CURRY: Madam Chairman, Representative
14 Baker, if I can answer your question this way, that in
15 general legislatures who have been faced with this have at
16 most adopted standards, because that's the determining
17 factor, or oversee the agency who by rule develops the
18 standards.
19 They normally leave the guidelines, which are
20 intended to be more flexible and deal with ranges,
21 options, allowable construction materials -- that's not
22 the thing you typically find in statute law. And it is
23 more a set of like a design spec manual or the like that
24 would be available to architects, to districts in their
25 planning.
64
1 The linkage is that you want to ensure that you
2 don't have a disconnect between your guidelines and your
3 standards. For instance, if your standards call for 100
4 gross square feet per pupil and your guidelines when you
5 add them up come to 200, you have disconnect. And that's
6 one of the good reasons, I think, for charging the
7 responsible agency with making sure that there's congruity
8 between the standards and the guidelines.
9 Now, you may want to -- as we look at this
10 legislation, look to some type of legislative action
11 regarding the standards that come out of that, since, as
12 Mr. Hunkins has pointed out, you have a constitutional
13 obligation to do something, you may not want to delegate
14 that to an agency. I would not suggest, however, that you
15 get into the business of trying to craft guidelines for
16 inclusion in statute.
17 REPRESENTATIVE BAKER: I'm still -- Madam
18 Chair, I'm still stumbling over -- and this is a mental
19 thing for me -- standards and guidelines. And you've made
20 that clearer to me.
21 So to restate, just to make sure I understand,
22 you believe we ought to be intimately involved in
23 developing the standards and have oversight in the
24 development of the guidelines?
25 MR. CURRY: I think that would be an
65
1 appropriate thing to do, yes, Madam Chairman,
2 Representative Baker.
3 COCHAIR SHIVLER: Madam Chair, Denis or
4 Dodds, whoever wants to answer this, I think one of the
5 issues that we're struggling with is our small schools, as
6 you pointed out, and there's no question about it,
7 requires larger square foot per student for a small school
8 than it does for a large one, but we're in a situation
9 where our small schools are not only small but getting
10 smaller.
11 We have a situation that's under construction
12 now, possibly completed, in Upton. When that school was
13 being designed, I think -- this is from memory -- but I
14 think the school had 106 students. I think they designed
15 it for 140 students. By the time it is built it will have
16 90 students and in five years it will have 60 students.
17 So in essence we're building the schools, you
18 know, that have square footage and they're continuing to
19 decline, and at some point I guess the school won't be
20 there. That has happened a couple times in the last few
21 years, Medicine Bow being one and I think there was
22 another.
23 My concern with the model that you've set up
24 with the 200, 300 students is this certainly works out
25 with our basket of goods, but I think we need a lot more
66
1 flexibility in the spaces. If you look at your
2 multipurpose vo-tech, we have 35 square foot a student,
3 that's about a third of what the national average is per
4 student. We have that for vo-tech. In a high school of a
5 hundred students, I suggest probably only 10 or 20 of them
6 will probably take that. Maybe half. I don't know. But
7 in effect we're designing a classroom to handle all of
8 them.
9 I think we're running into the same situation
10 with the band, the media center -- well, the media center
11 is definitely necessary, but I think there has to be some
12 way for us to get flexibility within our spaces so that we
13 can get these down to something we can afford to build
14 because all of a sudden when we do this, this kicks our
15 cost up to anywhere from 40 to 60,000 a student for the
16 cost of the school, whereas the national average -- I've
17 got something I'll hand out here -- is running around
18 18,000.
19 Granted, the small schools sure excuse those
20 figures, but, by the same token, the schools are getting
21 smaller and we can't really afford to build unless we can
22 build with flexible space. So I think it is important we
23 come up with some kind of design concept that allows
24 flexibility within this program.
25 MR. CROMWELL: Madam Chair and
67
1 Representative Shivler, I agree with you 100 percent. And
2 I preface these models by saying that they're examples,
3 and I think they're meant to show designers that here is
4 one way the basket of goods could be delivered. Obviously
5 that needs study and that needs the input of educational
6 planners. There's a lot of issues in here, I think
7 flexibility being one, teaching paradigms being another,
8 how we use space in schools.
9 But I think that we need to put forth an example
10 of how that school for a hundred students can be built
11 given X amount of square feet per student and deliver the
12 basket of goods. I agree with you 100 percent.
13 COCHAIR SHIVLER: I recognize this is
14 idealized and you guys did it very quickly, and we
15 appreciate that. By the same token, I think we need to do
16 some close study and get this down to something as a state
17 we can afford because this is a very expensive item when
18 you start putting 300 -- I can't see it, I don't have my
19 glasses -- 370, 380 square foot per student.
20 COCHAIR DEVIN: Senator Massie.
21 SENATOR MASSIE: As I'm sure some of you
22 will remember and maybe were involved, a member of the
23 first construction committee was Representative Jim
24 Twiford, and he pointed out after we let the original
25 contract to MGT we left out grounds. There was never an
68
1 inventory taken of school grounds around the state.
2 My question is at this point is the maintenance
3 of grounds -- two-part question: Are the maintenance of
4 grounds part of the major maintenance formula we're using
5 now; and second, do we have standards with regard to the
6 maintenance of school grounds?
7 MR. CROMWELL: Madam Chair, Senator
8 Massie, the major maintenance payments were calculated on
9 building size and student enrollment. Site size is not
10 configured into that.
11 And the second question was -- no, we don't have
12 standards for the maintenance of sites that I'm aware of.
13 SENATOR MASSIE: So, Madam Chair, should
14 that be added as perhaps point number 8 that we eventually
15 need to come up with some standards with regards to
16 grounds? Is that an important enough topic for us to
17 devise standards for grounds.
18 MR. CROMWELL: There are standards for the
19 size of sites and for the things that need to go on those
20 sites, amount of parking, playing fields, that kind of
21 thing. But there aren't any -- sites were not taken into
22 consideration when calculating major maintenance.
23 MR. CURRY: Madam Chair, Senator Massie,
24 although it is probably getting ahead of ourselves a bit,
25 the draft that LSO has prepared does address issues
69
1 related to grounds.
2 COCHAIR DEVIN: And I guess I would just
3 like the committee to weigh -- and Representative Baker, I
4 certainly understand your frustration, but I think the
5 committee is going to have to weigh very carefully how far
6 we get into detail with the statute pieces because there's
7 an unbelievable amount of consultation and detail that
8 needs to take place just from hearing the discussion in
9 terms of how do you build for expansion/downsizing, how do
10 you account for flexible stations. To set some of that in
11 statute becomes an argument on the floor that loses the
12 consultation and the expertise that you really need to get
13 a good product.
14 So somewhere in there we have to find a balance
15 how we're going to do that because I think there's an
16 awful lot we need to draw on that simply time or insight
17 has precluded us from drawing on before. But it is
18 becoming evident those are pieces that need to be in here
19 in much greater detail.
20 COCHAIR SHIVLER: Madam Chair, I just had
21 Mary hand out some information I got from the American
22 Schools and Universities, last year's building cost, and
23 it does break it down into region. Mr. Cromwell also --
24 there's another sheet that they did the same thing for us
25 that we asked them to do last time, and they also included
70
1 the national construction project from the School Planning
2 Management. I guess that C H O O L is school.
3 But at any rate, if you look on page 34, that
4 gives your breakdown, I think, of how the dollars are
5 spent for a school. It would certainly be wise for us to
6 look at this. I think in many cases we have land that's
7 free so we don't have the site -- when I say free, it
8 belongs to the foundation and we don't have the site
9 purchase.
10 If you look on page 39, you see that we're in
11 Region 8 and this gives you just a general cost per
12 student per square foot, median number of students. And
13 as you can see, all of these are based on larger numbers
14 of students than we have so our costs are certainly going
15 to be more.
16 What really spurred me into this, I think
17 several others of us, when we just looked at a school that
18 was done up in Powell, you see this figure of 19,000 for a
19 high school, they came in at 90,000, so I think we can
20 look at these figures and say, "Wow, 90,000 must be out of
21 whack." Now, granted, it could be more because our
22 schools are smaller, but I certainly don't think it can be
23 four or five times more.
24 It is an interesting article. If you could read
25 it, give us a little insight into it and recognize what
71
1 Mr. Cromwell just gave us, this information we also need
2 to include in that.
3 But I think we have to have a clear
4 understanding of what we're going to spend on schools and
5 we set -- if we set this committee up and I think that has
6 to be kind of a guideline. When somebody comes in with
7 something that's 70, 80, $90,000 a student, I think at
8 that point we can say, "Whoa, something is out of whack."
9 This is primarily for your information.
10 COCHAIR DEVIN: Did you have any other
11 pieces?
12 MR. CROMWELL: No, that concludes mine.
13 COCHAIR DEVIN: Committee, other
14 questions?
15 I have one brief question. Do you feel like we
16 are on our way in your recommendations? One of the things
17 I think that's been frustrating for districts and
18 certainly frustrating for those of us who have had to deal
19 with the proposed projects is that we're simply not set up
20 to deal well with athletic facilities and what the
21 perception is of what's needed and so forth and what's
22 nice and what's pure luxury. And we're kind of all over.
23 It is a lot easier to do -- I mean, I think although some
24 intentions have been good, some feelings have been hurt in
25 that process.
72
1 Do you think that this would put us on our way
2 to resolving some of those issues?
3 MR. CROMWELL: Madam Chair, I hope so, and
4 the process needs to happen of looking at the educational
5 basket of goods and what is required to deliver that and
6 what is not required but is nice to have. This process
7 will put us down the road a ways toward that.
8 COCHAIR DEVIN: I think that's the bright
9 line we've got to draw, you know, what's required to
10 happen in the educational program and then what might be
11 nice to have other than that. It can often make good
12 sense but it may not be a necessity, too.
13 Okay, thank you.
14 COCHAIR DEVIN: The next piece on our
15 agenda is the school capital construction bills that we
16 have under consideration, and I think in light of the size
17 of our task we'll go ahead and begin this before lunch and
18 what I want to kind of charge the committee with today
19 that we really need from this committee is to go over this
20 piece of legislation. And if you have major -- certainly
21 major changes, major directions that you would wish to
22 alter the way this is going, we need to get those drafting
23 instructions to our staff with today's meeting.
24 If there are minor changes, we certainly can
25 look at those pieces. They're most in need of knowing
73
1 major pieces, but others are certainly there.
2 We're tentatively looking at -- discussed
3 looking at a meeting on the 29th of November to perhaps
4 bring some of this to closure, if we can do that, because
5 I think that December is going to be swamped if we're
6 looking at the calendar in terms of the number of
7 education meetings with MAP and the number of other
8 pieces, and that activity will heighten a lot in terms of
9 our staff and the number of committee meetings you all are
10 going to have, and -- once we cross that early December
11 line and early January line.
12 That's kind of where we're at at this point, so
13 kind of try to keep that in mind as we go through.
14 With that, Mr. Nelson, would you like to start
15 to walk us through this bill?
16 MR. NELSON: I would be happy to, Madam
17 Chair.
18 What Mary handed to you is kind of a one-page
19 summary, major components of the bill that kind of
20 reference the pages in the draft that deal with the
21 specific elements of the structure of the system that's
22 established in the draft bill.
23 I would like to further preface it by saying
24 this draft was put together based on several things. One
25 was based upon your meeting last August, there was a
74
1 desire to incorporate the basic mechanics that the water
2 development process had. This draft attempts to do that.
3 It also attempts to bring together some of the
4 comments that were voiced at this meeting with respect to
5 certain aspects of the capital construction system that
6 provided some problems and some issues to date.
7 We also looked at a little bit of some other
8 state plans. The cochair brought up Arizona. There were
9 a number of other states that we kind of looked at based
10 upon that survey that was distributed to you at the last
11 meeting and we also relied on MGT to provide us with their
12 expert comments on what constitutes various necessary
13 components of a system that they felt would provide us and
14 cover the bases with respect to what needs to be looked at
15 when you put together a systematic system to look at
16 capital construction needs.
17 We did try to base this on as much of the court
18 decision as we could. You will have noticed that there
19 are references in here to local enhancements. This was
20 done before the decision even came out, so some of this is
21 before we -- I tried to take out what I could and leave in
22 what I could.
23 Basically it just provides you with something to
24 start on. And nothing in here is sacred, it is all
25 subject to your choosing as a committee.
75
1 So with that, you may proceed.
2 COCHAIR DEVIN: We certainly appreciate
3 your work. Combined with your other duties, we don't need
4 to ask what you've been doing, but I think you undertook a
5 rather massive effort and, from my review of it, gave us a
6 pretty excellent place to start.
7 MR. NELSON: I guess, starting with the
8 structure, we do create a commission that is augmented by
9 a legislative select oversight committee which is very
10 similar to the water development process.
11 We put together the commission at the very
12 beginning of the bill. It is patterned a little bit after
13 the Water Development Commission. We used the governor to
14 make appointments. We do vary the membership as we have
15 to, but essentially the membership is designed to provide
16 as much input into the process as we could put together
17 that describes what you need to make some statewide
18 decision-making tools.
19 So on page 2 you see that on line 13 there we
20 have the engineering/architectural background, we have the
21 design/building specification expertise, the facilities
22 management expertise in there. We have somebody who is
23 familiar with the educational program as well as public
24 finance. And you will see why that's in there a little
25 bit later.
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1 We augment that with the state superintendent
2 and a member of the state school board. So that would
3 constitute your facilities commission which would be the
4 entity that would do all phases, really, of school capital
5 construction.
6 COCHAIR DEVIN: I might just ask, will MGT
7 be here this afternoon?
8 MR. CURRY: Yes.
9 COCHAIR DEVIN: So we can come back to
10 them with some detailed questions on some of these pieces?
11 MR. NELSON: Sure, or take them as you go,
12 however you want to get through this.
13 COCHAIR DEVIN: Well, I don't want to bog
14 it down any great deal, but I did want to ask on that
15 page, I notice that these are each preceded -- for
16 example, in line 13 it says school building and facility
17 engineering -- these are members of the commission --
18 construction and operations, and then you go on to school
19 design and building specifications.
20 I could see specifically needing school
21 expertise in design and building and in facilities
22 planning and management, but I guess I'm trying to look,
23 would you necessarily need school building and facility
24 engineering and construction versus building facility
25 engineering construction expertise? I mean, could it be
77
1 more general so that we -- and I'm trying to think of our
2 small population and our expertise to draw on.
3 You certainly need the school expertise in there
4 somewhere, but are we -- could you go with something more
5 general rather than requiring that school building and
6 facility specific engineering?
7 MR. CURRY: Certainly on line 13 that
8 isn't that important. It becomes a little bit more
9 important in terms of the other talents that you ought to
10 be looking for.
11 REPRESENTATIVE SIMPSON: Madam Chair.
12 COCHAIR DEVIN: Representative Simpson.
13 REPRESENTATIVE SIMPSON: On lines 9
14 through 11, those remaining five members shall have
15 knowledge or experience in one or more of the following
16 areas: Is it the intent to have someone who has
17 experience in each one of those, and if that's the intent,
18 I think you should reword that a little bit just to state
19 that, that someone will have experience in each one of
20 those subsets, rather than having five people who have
21 experience in public finance.
22 MR. NELSON: That was the intent. We
23 tried to leave it open in case you couldn't get -- but
24 definitely, you know, that was the intent.
25 REPRESENTATIVE SIMPSON: Madam Chair, I
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1 agree with you that you need some flexibility because you
2 may not be able to find someone.
3 MR. NELSON: Exactly.
4 REPRESENTATIVE SIMPSON: But you also
5 don't want five people with the same expertise, obviously.
6 COCHAIR DEVIN: So give that some thought
7 and we'll come back to that as we're actually working on
8 it.
9 MR. NELSON: On page 3 we have some
10 restrictions in subsection (b) at the top of page 3 on
11 conflicts of interest in terms. If we put these together,
12 subsection (c) essentially establishes the length of terms
13 and the party affiliations, the normal provisions with
14 respect to statewide commissions, and subsection (d)
15 provides for a chairman.
16 Under this draft it is similar to the Water
17 Development Commission where the chairman is appointed by
18 the governor as opposed to being elected by the
19 membership, and the meeting and so forth is very similar
20 to the structure that is under the Water Development
21 Commission.
22 Over on page 4, the last provision pertaining to
23 the commission up on top of page 4 is for reimbursement
24 for expenses and the salary. It does give a salary of $50
25 a day.
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1 COCHAIR DEVIN: And the salary figure you
2 got from where?
3 MR. NELSON: Water development.
4 COCHAIR DEVIN: Do we have any idea when
5 that was last updated?
6 MR. NELSON: I don't. We could certainly
7 find out.
8 COCHAIR DEVIN: I'm wondering, when you
9 bring those kinds of professional people from their daily
10 work, how current that is. But okay. If you could find
11 that out for us.
12 MR. NELSON: Continuing with their duties
13 on page 4, first duty is to put together the assessment.
14 It is a vehicle we already have that was started by the
15 state department which assesses the condition and other
16 factors of statewide buildings.
17 The second duty is to -- and this is something
18 new that's incorporated into this bill is what we call
19 school district facility plans. And as we get into this a
20 little bit more this provides some local input into the
21 response to inadequate buildings and their take on how to
22 solve those or remedy those needs. And this will be
23 expanded on a little bit later in the draft.
24 The third duty is the enrollment projection
25 thing. We brought some language in there to deal with
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1 this because we've heard a lot of discussion about it and
2 so we do delegate responsibility to this entity to develop
3 a statewide basis for computing enrollment projections.
4 The same thing on page 5, under paragraph 4,
5 we've heard a lot of discussion on cost per square foot as
6 used in solving adequacy needs. This would mandate that
7 the statewide commission develop guidelines on that so
8 that we have some statewide bar for costs per square foot
9 as used in remediating deficiencies.
10 COCHAIR DEVIN: I guess I would just say
11 that thus far what we have found is that districts have
12 been left to their own resources in developing their
13 building proposals to some extent with trying to develop
14 definitions of these pieces, and they've had their own
15 local expertise and by the time they have developed a
16 method and -- they've got a lot of personal time invested
17 into it and then they feel very obligated to defend it.
18 And they feel that it is probably quite right because you
19 get a lot of investment when you work on something, but
20 there's no consistency, so when we start comparing them to
21 each other it appears as though someone did not have the
22 best of intentions. And I think probably they did, but it
23 creates a lot of misunderstanding.
24 We've certainly seen that come out in the
25 hearings, and it puts legislators in difficult positions,
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1 but it puts the experts who have advised the schools with
2 good intention in a bad position. It puts the schools in
3 the position of trying to defend it, whether it has been
4 great guidance or not been great guidance, so I think it
5 is an area that's caused a lot of misunderstanding. If we
6 could have a consistent, agreed-on system, then everybody
7 is not having to go to the expense of developing their own
8 and they're under the same rules.
9 SENATOR COE: Madam Chair.
10 COCHAIR DEVIN: Yes, Senator Coe.
11 SENATOR COE: Somewhere involved in this
12 process, though, I think we have to figure out a way or --
13 we're walking away from that, as we did in Lander. We
14 walked away from a building that could have been maybe
15 renovated or maybe remediated. I'm concerned about the
16 application for Powell as another example. Walk away from
17 maybe some buildings that could be renovated or
18 remediated, but because the State is paying, they want a
19 brand-new deal.
20 Somehow I think we've got to figure out a way
21 through this commission either to go on site and/or to go
22 and say, "Hey, you haven't looked at saving this building
23 in Lander you could have saved." And this really concerns
24 me, because somehow we've got to have this commission be
25 able to go on site or to do something and say, "Hey, this
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1 doesn't make sense to abandon this building and move this
2 and decide you need a new football stadium in Powell."
3 And I'm not sure how we do this.
4 COCHAIR DEVIN: Watch for that as we go
5 through. I'm thinking that maybe the staff that we have
6 given this -- in other words, the office that staffs this
7 commission, much like the water development office, would
8 have the expertise to do that and could, in fact, take
9 commissioners to that site if they wanted to, but
10 certainly the staff, the engineers, the architects, those
11 people, that should happen maybe more than once in the
12 process before that building piece would ever come to
13 commissioners and certainly before it came to legislators.
14 But watch for that as we go through because I
15 think that is a legitimate concern and I hope we have that
16 piece in here.
17 REPRESENTATIVE BAKER: I would point out,
18 Madam Chair, the Water Development Commission in fact has
19 two tracks. They have money for rehabilitation projects
20 and they have money for new construction projects, and we
21 should develop that kind of a thought process. And the
22 decision in one or the other should be made very early on
23 before we get too far down the process. They have both
24 rehabilitation money and capital construction money.
25 COCHAIR DEVIN: And perhaps by sweeping
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1 the major maintenance monies under the control of this
2 commission for meeting of problems we have done that, but
3 watch to see if you think that piece is achieved.
4 COCHAIR DEVIN: Mr. Cochair and then
5 Senator Cathcart.
6 COCHAIR SHIVLER: Defer.
7 SENATOR CATHCART: Madam Chair, just
8 following up where Senator Coe was and I think where
9 Representative Baker went, someplace in this commission
10 they have to have the authority to determine whether or
11 not -- whether to rehabilitate or build new, and that
12 decision can't be left to the local district, because if
13 it is, every local district wants a new building.
14 And so I can envision this commission going out
15 to investigate needs in a district and saying, "Well, wait
16 a minute. You don't really need a new school. What you
17 need is a new boiler and a new roof." So hopefully we'll
18 work that into this.
19 COCHAIR DEVIN: Senator Massie and Senator
20 Anderson.
21 SENATOR MASSIE: Madam Chair, I just
22 wanted to say it is in the bill and it starts, I think, in
23 subsection (vi) on page 5 and it is spelled out, I think,
24 two or three different times in the bill for this very
25 thing.
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1 COCHAIR DEVIN: Senator Anderson.
2 REPRESENTATIVE ANDERSON: Quickly in the
3 same vein that's been going around the table, as to whose
4 decision to build or whatnot, in the event we go forward
5 and there's an existing building left, I think the state
6 needs to maintain say in the existence of that building,
7 whether we continue to subsidize that through maintenance
8 and heating or whether it is torn down, it is kept for
9 financial gain, who participates in that gain; if in fact
10 there's a nonfunctional, noninstructional building left in
11 place, what role does the state have in that.
12 COCHAIR DEVIN: So we are on line 11, page
13 5, and watch for those things because you've identified
14 the exact problems. I think they're addressed, but if
15 they're addressed to the extent and to your satisfaction,
16 that's what we need to find.
17 MR. NELSON: Madam Chair, yes, as has been
18 pointed out, these are all brought up, all your concerns,
19 so I think we'll get there and we'll point those out as we
20 get through this.
21 The next item, again, we're just kind of
22 summarizing the duties assigned to this commission by
23 statute, and a lot of these are expanded upon in later
24 parts of the bill further down the road.
25 Paragraph 5 on line 11, page 5, requires the
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1 district to -- the commission to establish a statewide
2 database, and this would include a lot of
3 building-specific information, things that I think we have
4 a lot of that in place to do, but anyway, we specifically
5 mandate that they establish a statewide database to work
6 from in their decision-making.
7 Paragraph 6 requires them to establish policies
8 when they come to the decision of the proper course for
9 remediating an inadequate need, to clearly delineate those
10 by rule and regulation, policy, criteria and so on and so
11 forth. These will be spelled out a little bit more
12 specific in parts -- later parts of the bill.
13 Paragraph (vii) at the bottom of page 5 and
14 continuing over on the top of page 6 is a very important
15 paragraph, and this grants them the authority to enter
16 into agreements with local districts in pursuing of
17 remediation strategy or projects.
18 And as you will see later in the bill, when they
19 get to this point, they're given directives to follow
20 through on and identify the inadequacy. When they get to
21 this level and they need to go something beyond, for
22 example, like a major maintenance solution, they then can,
23 as an option in pursuing that, enter into an agreement
24 with the local district to go ahead with the specific
25 remediation project which could be a replacement of the
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1 new building, repair of existing building, some other
2 strategy to go ahead.
3 And they have quite a bit of control under this
4 to sign off on the agreement, to review the process and
5 review every contract that's entered into in that project
6 remedy. And so this is something that you may want to
7 bookmark because it is something you'll probably come back
8 to as we go down the bill. I just wanted to point that
9 out.
10 REPRESENTATIVE BAKER: Madam Chair, could
11 I ask, do you envision this as being entered into -- these
12 project agreements and contracts being entered into after
13 the legislature has taken action on specific programs or
14 before?
15 MR. NELSON: Madam Chair, the way the bill
16 is set up now, it would be after. They're brought to you
17 in a budget package as an agency budget request, and they
18 would bring to you the specific projects and the financing
19 for those projects. You then would review that. Then
20 they would -- and the language in here says upon
21 legislative approval.
22 REPRESENTATIVE BAKER: Thank you.
23 MR. NELSON: Continuing at page 6,
24 paragraph 8, this is the local enhancement piece. We will
25 work that as you envision. But right now it requires not
87
1 only to put together local requirements and procedures for
2 identifying and reviewing local enhancements, but also
3 deciding at what point they may be integrated into a state
4 standard, and that's a decision you all have to make.
5 So this is one of the slots. It is mentioned in
6 here several places, but that again begs your decision on
7 that.
8 The other one is just a general catch-all.
9 Paragraph (b) at the bottom of page 6 provides
10 them the authority to enter into contracts with
11 appropriate expertise and professionals as necessary to
12 administer this act.
13 And (c) ties into that at the top of page 7. It
14 gives them authority to employ a director whose expertise
15 is enumerated there by statute, together with additional
16 staff as they may need to operate the staff to the
17 commission as approved by the legislature.
18 This can be a combination, permanent staff
19 versus contractual expertise; however, that fit best
20 matches the needs of the commission as we go down the
21 road. I think the thinking is to get at least some degree
22 of professional expertise that will be full time and
23 available to the commission.
24 COCHAIR DEVIN: I guess I have one
25 question on (c). Is this realistic to expect that one
88
1 individual we might hire as a director would have
2 demonstrated competency in all of those areas versus
3 needing to be competent to hire good advisors?
4 MR. CURRY: Good point. Madam Chair, you
5 might want to revisit this walking-on-water provision.
6 COCHAIR DEVIN: You know, I could envision
7 certainly hiring somebody who had some background in the
8 area, but maybe that's just well put, that we --
9 MR. NELSON: We set our goals high.
10 COCHAIR DEVIN: I can see that. I'm just
11 truly interested in having a human that could fill the
12 slot.
13 I guess I would be interested in language that
14 would allow that input --
15 MR. NELSON: Certainly.
16 COCHAIR DEVIN: -- but wouldn't require
17 that in one individual.
18 MR. NELSON: I think our thought was to
19 get a high-quality individual, just focused on that, as we
20 oftentimes get.
21 SENATOR MASSIE: In that same paragraph,
22 is it unusual to have a commission head to essentially
23 work for two bosses like we have here? In other words, we
24 give the authority to dismiss this person to both the
25 governor and the commissioners, and it would seem that
89
1 that would be an awkward situation, trying to work for --
2 trying to please two people or two groups of people.
3 MR. NELSON: I think that's a good
4 question. That's for you all to resolve. I put "and the
5 governor" simply because that authority made under that
6 statute extends to him regardless. But that's -- the
7 committee is free to work their will on it.
8 The next section at the bottom of page 5 deals
9 with the statewide standards. Again, you've discussed
10 this already in some detail. The way the bill approaches
11 it is to require the commission to by rule and regulation
12 establish and maintain the standards.
13 And we put down some statutory criteria for
14 establishing those standards. They began on page 8, and
15 some of these are adopted from the existing statutes on
16 statewide adequacy standards. We augmented, modified and
17 added to the existing criteria, but essentially this
18 provides you your input as to what you want the state
19 standards to reflect.
20 And briefly, first one is the safety issue.
21 Second one is the site issue that was just
22 brought up.
23 Third is building performance standards and
24 guidelines.
25 Fourth is something we brought forward from the
90
1 other standards on the special needs, special student
2 needs population.
3 Fifth is for the adequacy and functionality of
4 educational space.
5 Six is the educational criteria which would be
6 aligned to the program and given some considerations in
7 differences in school sizes. This is something we did put
8 in as an augmentation of your existing statewide criteria.
9 Technology criteria is brought forward and the building
10 accessibility is something we added in lieu of what the
11 Court said.
12 So that provides you with an area to address
13 that and to rework as you see necessary to define the
14 statewide adequacy standards, and it would be an important
15 part of the whole thing, important part of the whole
16 system of the future programs.
17 COCHAIR DEVIN: What is meant by building
18 and facility accessibility? How is that different, say,
19 than lines 11 through 13 on page 8?
20 MR. NELSON: I think in my response it
21 would be the ADA sorts of requirements, but technical
22 experts --
23 COCHAIR DEVIN: Would number 4 be the same
24 thing?
25 MR. CROMWELL: Madam Chair, not
91
1 necessarily. Special ed needs sometimes don't deal with
2 accessibility issues as much as they might deal with
3 special classrooms that are equipped to deal with the
4 special needs of those students or curriculum to meet the
5 needs of those students.
6 So sometimes they would overlap and sometimes
7 they wouldn't.
8 COCHAIR DEVIN: But if you didn't have
9 your building ADA accessible, you would be tough to get
10 those kids to that classroom, wouldn't you, or am I just
11 not understanding? Is this just a language of art of the
12 building piece that just seems like common sense would
13 say --
14 MR. CROMWELL: It needs to be accessible.
15 COCHAIR DEVIN: -- it needs to be
16 accessible to the student and the classroom? That's a
17 minor problem.
18 REPRESENTATIVE SIMPSON: Madam Chair, on
19 page 7, line 19, when I read this paragraph it struck me
20 that it might be more appropriate to use the statutory
21 language that we already have about those facilities that
22 are primarily used in connection with or for the purpose
23 of providing educational programs offered.
24 We use the word "necessary." Maybe it is a
25 distinction without a purpose, but we're seeking adequacy
92
1 standards for those buildings that are primarily used in
2 connection with providing educational programs required by
3 law, right?
4 MR. NELSON: Yes.
5 REPRESENTATIVE SIMPSON: So maybe we
6 should stick to that statutory language that we already
7 have rather than using a more ambiguous term of
8 "necessary" or maybe "primarily used" or -- that's just a
9 thought there. Maybe they're speaking to two different
10 things but it seemed to me that they're the same or the
11 statutory language would be appropriate.
12 COCHAIR DEVIN: We could review that for
13 consistency to see if one selection is better than the
14 other.
15 REPRESENTATIVE SIMPSON: Madam Chair, may
16 I go back to page 6 for a moment?
17 COCHAIR DEVIN: Yes.
18 REPRESENTATIVE SIMPSON: At the top of the
19 page, lines 1 through 10, the commission is stepping up
20 here to ensure, in lines 4 and 5, construction or
21 renovation project management. And I'm assuming that
22 that's the commission that would be doing that, either
23 through professionals, but I think there needs to be some
24 additional clarification there as to who will actually be
25 doing the project management.
93
1 Because if it is the commission, there's some
2 definite liability that goes along with that if it is done
3 incorrectly. I think we need to look at that paragraph
4 and --
5 COCHAIR DEVIN: Actually, is that the
6 director? If you go back to page 4, that comes under
7 powers and duties; schools facilities office created;
8 director.
9 MR. NELSON: It is the commission. It is
10 a charge of the commission.
11 COCHAIR DEVIN: Charge of the commission?
12 MR. NELSON: Exactly. And I guess if I'm
13 understanding correctly, what we're requiring is that the
14 commission or its staff sign off on the project and the
15 process that's used to undertake the remedy.
16 And as far as -- yeah, I mean, as far as who
17 would actually -- I guess the question was who actually
18 would be the project manager, for example, who would be
19 responsible for getting this done, that done? I guess I
20 envision that they would hire professionals. I mean, I
21 never envisioned that the State -- I guess, and maybe
22 that's very unclear here. But I'm with you. I hear what
23 you're saying. I think that's what we envisioned.
24 COCHAIR DEVIN: It does say on the bottom
25 of page 5 "...with school districts to select
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1 professionals for a project..."
2 SENATOR CATHCART: Madam Chair, project
3 management is normally determined through the bid process.
4 Now, you may decide in certain cases to hire a project
5 manager, at which time he lets bids out to subcontractors,
6 but you designate the manager of that project. In other
7 cases it goes out for bid in the general contractor's bid
8 and they assume management of the project until
9 completion.
10 So you actually don't manage this. The
11 commission won't actually be on site managing the project,
12 but they will delegate that authority to whomever they
13 hire, whether it is through the bid process or project
14 management, and that's normally taken care of in the
15 contract situation when you build a school.
16 REPRESENTATIVE SIMPSON: Madam Chair, I
17 would agree and that's why I think there needs to be some
18 clarification there who will be doing it. I don't know if
19 the Water Development Commission does any construction or
20 project management. I suspect it is all through contract.
21 And then on page 6, line 1, where we use "review
22 project plans," aren't we approving project plans also?
23 We're reviewing and approving them at least up to the
24 adequacy standard?
25 COCHAIR DEVIN: Which line are you on on
95
1 page 6?
2 REPRESENTATIVE SIMPSON: Line 1 where it
3 says "...review project plans." And maybe we're getting
4 into working the bill, Madam Chair, that you don't want to
5 do at this point.
6 MR. CURRY: Madam Chair, I might comment I
7 think that the insertion on line 1 makes good sense. It
8 makes it consistent. I would like to explain why the
9 language is in there to take all other necessary steps to
10 ensure construction or renovation project management, and
11 that was it was envisioned that there might be a wide
12 range of circumstances, some of which might be fairly
13 minor in nature and not require a professional project
14 manager.
15 If the district is large enough and can
16 demonstrate the capability to manage the contract, fine.
17 Large, complex project at a small district that doesn't
18 have that, probably would be a contract project
19 management.
20 So the language in there is -- is not specific
21 for a reason. It is just that they have a charge to
22 ensure that there be appropriate project management. But
23 that's the reason.
24 REPRESENTATIVE SIMPSON: Madam Chair, and
25 that means to me that they'll guarantee it, that the State
96
1 will guarantee it or the commission. I'm sure we can come
2 up with some language that would clarify that a bit more.
3 COCHAIR DEVIN: Okay. So your first
4 suggestion when we come back for amendment is that after
5 review we also add "and approved?"
6 REPRESENTATIVE SIMPSON: Yes, Madam Chair.
7 COCHAIR DEVIN: When we go to amending,
8 let's remember that. And then you're interested in
9 general language that will make it clear that -- where the
10 responsibilities lie?
11 REPRESENTATIVE SIMPSON: That's right, on
12 lines 4 through 6 to the end of that sentence.
13 And then in that same light, on line 5 we have
14 the word -- at the end the word "review." Also it seems
15 to me the commission is reviewing and recommending for
16 approval the completed project.
17 COCHAIR DEVIN: All right. Those
18 thoughts -- I've made those notes. Try to help us
19 remember this afternoon.
20 SENATOR CATHCART: Madam Chair, just real
21 briefly, we don't want to lock the door where the
22 commission can't manage a project because in some cases
23 the Water Development Commission actually manages a
24 project.
25 COCHAIR DEVIN: And in some -- you know,
97
1 that is one of the problems we have encountered in really
2 small areas sometimes. It is an incredible burden to try
3 to find that expertise or to involve the local school
4 district where that superintendent and principal wears
5 multiple hats and being involved in construction is not
6 another one that there's room for to do an adequate job.
7 And then other districts are large enough they
8 can practically hire someone within the district to do
9 that full time.
10 That puts us at --
11 MR. NELSON: Page 9, subsection (b),
12 beginning on line 6 of page 9, deals with the assessment
13 and this continues forward the current assessment that we
14 maintain of statewide buildings and facilities statewide.
15 It pretty much patterns existing language. We
16 set conditions and we did expand upon the conditions under
17 which the assessment will be designed and maintained on
18 providing statewide data. Those are enumerated on page
19 10, paragraphs 1 through 6.
20 And most of them, as I said, are carryovers. We
21 tweaked the language a little bit, but again, it is -- the
22 basic information was there before, the site requirements
23 are there, and I think we added the last paragraph there,
24 the interior -- the inventory of exterior and interior
25 buildings facilities space because of comments on capacity
98
1 that the State had found to be deficient on currently. So
2 that was the reason for that added line which emphasized
3 that.
4 REPRESENTATIVE BAKER: Madam Chair, if I
5 could ask -- and I don't see this -- is there ability to
6 contract here or -- this shows the commission shall
7 maintain a comprehensive assessment, and I don't see --
8 MR. CURRY: On the bottom of page 9.
9 MR. NELSON: On lines 21 and 22 there on
10 page 9.
11 REPRESENTATIVE BAKER: Okay. So it shall
12 be conducted through qualified contract assistance. So
13 the bill here says that it shall be done by an outside --
14 so it is not the ability of the commission to develop its
15 own assessment? Why are we doing this -- why are we
16 moving the expertise that we're trying to build from the
17 assessment of that building? Should there be --
18 MR. NELSON: You mean incorporate it
19 within the commission? That's fine. We left it the way
20 it was simply because that carries it forward as to what
21 it was. You're free to require that the commission may as
22 necessary augment or may do it itself. You're free to
23 exercise all options.
24 REPRESENTATIVE BAKER: I guess -- and I
25 was going to ask this maybe more from the legal side. It
99
1 appears to me that the Supreme Court has -- well, not
2 appears -- it has blessed the MGT work. I'll use Ray's
3 word, it has blessed MGT's work. Is that the thought
4 process: We've got something in line, on hand, but as we
5 go forward 25 years from now we're not going to be here,
6 we may not be able to trust MGT -- I mean, you know, Dodds
7 and Denis may not be there.
8 And are we -- I want to set up something that we
9 have court okay with but that we get a long-term, adequate
10 assessment of these buildings and that it doesn't lock us
11 into something that may develop poorly in this -- in the
12 long term.
13 25 years, you will be retired? Maybe?
14 COCHAIR DEVIN: I guess that could be as
15 simple as us changing on line 21 the "shall" to a "may."
16 MR. NELSON: Exactly.
17 COCHAIR DEVIN: However, I think in this
18 transition phase we need to be very careful. They're not
19 going to be able to take on that burden very rapidly,
20 trying to formulate everything else. The only door that
21 may open is the fact that in the future I think they're
22 still going to -- that is an expensive process and it is
23 still going to need to be funded, whether they put the
24 expertise on to do it internally or whatever. I mean, it
25 is not like you're going to be able to hand that job to
100
1 someone and say, "We're just going to add it to your
2 duties."
3 REPRESENTATIVE SIMPSON: Madam Chair, page
4 10, line 8, that subsection (iii), student educational and
5 safety requirements, I'm not sure what that means and if
6 it means student educational requirements of the building
7 or the facilities, let's state that. But the way it is
8 stated, it goes way beyond cap con to me.
9 MR. NELSON: I think that's a good point,
10 Madam Chair. I think that is loose language and I would
11 agree.
12 COCHAIR DEVIN: Anything else on page 10?
13 Anything else on page 10? Did you get through to line 17
14 on page 11, or where were you?
15 MR. NELSON: Yes.
16 COCHAIR DEVIN: Let's go to that point and
17 stop.
18 MR. NELSON: One point, the language in
19 subsection C does bring in the relevancy to the current
20 times by requiring continuing reviews and updating of the
21 standards, the statewide adequacy standards and the needs
22 assessment.
23 So that would be a job that this commission
24 would work with the assistance of the Select Committee on
25 making sure that our standards reflect the current
101
1 environment that we're operating in.
2 MR. CURRY: Madam Chair, may I interrupt?
3 On the line 8 change that might be made, I would just
4 mention, keep in mind that the -- one of the criteria set
5 out by the Court is the educational suitability. That's
6 part of the current assessment, and it requires that
7 certain levels of educational suitability be observed.
8 You're probably quite correct, Representative
9 Simpson, in that this doesn't say that as clearly as it
10 ought to, but I think that was the intention of that word.
11 So in your amending of it, keep in mind that that is a
12 criteria that the Court has referenced.
13 COCHAIR DEVIN: And we're at the top of
14 page 11.
15 MR. NELSON: Okay. Continuing with page
16 11, the next section deals with the school district
17 facility plan, ending on line 17.
18 COCHAIR DEVIN: Let's hold that until
19 after lunch. We're right at noon.
20 Mr. Cochair would like to take an hour for lunch
21 because we do still have the rest of this bill and our
22 working of this bill and another bill to get through, in
23 addition to the finance piece and then I guess the cap con
24 system process review also that Mr. Curry has this
25 afternoon.
102
1 So if we can reconvene as close to 1:00 as we
2 possibly can. If at all possible, we need to finish this
3 piece today.
4 (Hearing proceedings recessed
5 11:58 a.m. and reconvened 1:05 p.m.,
6 October 23, 2001.)
7 COCHAIR SHIVLER: The afternoon session
8 will come to order.
9 This is just wonderful, Dave. I hope we can say
10 that when we finish it, but so far it is wonderful.
11 MR. NELSON: You will. You will.
12 COCHAIR SHIVLER: I believe we were on
13 line 17, page 11.
14 MR. NELSON: Mr. Chairman, this part of
15 the bill addresses the local facility plans. This is one
16 important ingredient that the commission will use in
17 addressing remedies for building inadequacies.
18 In this planning process it directs school
19 districts to develop a five-year plan for its buildings
20 and facilities, including how they address inadequacies,
21 any local enhancements they may have to those
22 inadequacies, how they intend to recommend remediating
23 whatever situation it is that needs to be addressed, and
24 so on and so forth.
25 And that language continues through, in essence,
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1 the very top of page 14. Elements of that local plan are
2 more specifically enumerated under 13 -- on page 13.
3 One important element I want to call to your
4 attention, and I think it speaks to some of the
5 frustrations the legislature has had on inadequacy
6 remedies to date, some important language is found on
7 page 12, beginning on line 14.
8 And we say the plans shall include a response to
9 each building and facility inadequacy as defined by the
10 needs assessment on a building-by-building, space-by-space
11 basis. It shall also review and to the extent practicable
12 identify nonconstruction alternatives to building and
13 facility inadequacies.
14 This language is intended to point out that not
15 every solution must be a complete replacement, a building
16 replacement, that there are other alternatives such as
17 closing the building, modifying grade configurations, a
18 host of other alternatives. So it is intended to be very
19 broad and to provide that information to use in coming up
20 with some recommendations.
21 On page 13 are some specifics that the statutes
22 will say to what must be included in the local plans. And
23 the first one is the student -- it speaks toward student
24 enrollment projections, that they must be under
25 commission-approved measures.
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1 REPRESENTATIVE BAKER: Could I ask a
2 question right on that specific point, Mr. Chairman?
3 COCHAIR SHIVLER: Representative Baker.
4 REPRESENTATIVE BAKER: Mr. Chairman, we
5 have a five-year plan here, five-year period of time both
6 on page 12 and on page 13, and yet when we're talking
7 about building, we're talking about ten-year enrollment
8 projections.
9 Why wouldn't these be uniform?
10 MR. NELSON: I think probably that was my
11 oversight in that I was thinking of a five-year plan and
12 enrollment projections to come forward, but certainly
13 that's -- I would think that ten-year or however you
14 wanted to direct that would be appropriate. I think I
15 inserted five just simply to reflect the five-year plan,
16 and that's as far as I went with that.
17 So it is not --
18 REPRESENTATIVE BAKER: I was just
19 wondering what the thought was.
20 MR. NELSON: It is a good point.
21 REPRESENTATIVE BAKER: Thank you,
22 Mr. Chairman.
23 MR. NELSON: Paragraph 2, beginning on
24 line 6 there gets with some more specifics on proposed
25 additions or other remediations or replacements to
105
1 identify the grade levels and the number of pupils that
2 are affected, when you need that building, when you need
3 planning to start, when you need construction to be
4 completed, that sort of thing.
5 (iii), also projections for the new land that's
6 required, top of page 14, appropriate cost estimates, and
7 then (v) is just the -- any other information that the
8 commission may need that they decide on later.
9 Paragraph --
10 REPRESENTATIVE SIMPSON: Madam Chair --
11 Mr. Chairman, Mr. Cochairman.
12 COCHAIR SHIVLER: Representative Simpson.
13 REPRESENTATIVE SIMPSON: May I just ask a
14 question about page 12?
15 This facility planning assistance is not paid
16 for in the first instance by the State? This comes out of
17 the school funds on lines 2 through 5?
18 MR. NELSON: Mr. Chairman, the -- in the
19 back of the bill there's a separate section that we're
20 going to -- if this plan is agreed to, we will have to
21 come forward and it will be incorporated in the bill if
22 this is adopted.
23 Section 5, beginning on page 49, way back in
24 there is a section that will provide state money to be
25 made available to districts that come up with these plans.
106
1 REPRESENTATIVE SIMPSON: What does that
2 mean then on page 5, lines 2 through 12?
3 MR. NELSON: I think what that is intended
4 to say is to prevent a conflict of interest with whatever
5 professional that they may acquire. It was added in there
6 so that that individual or that entity could not then go
7 out and get the project, if he's working on the district
8 planning.
9 REPRESENTATIVE SIMPSON: And then on --
10 Mr. Chairman, page 14, line 1, appropriate cost estimates,
11 what are appropriate cost estimates?
12 MR. NELSON: That was something I fudged
13 in there to give the commission flexibility in saying what
14 they needed with respect to the project. How it is
15 appropriate to their plans I guess is what I was trying to
16 say. Probably is not the -- be better tooled, but that
17 was my thinking, how -- appropriate to the plan that they
18 presented.
19 REPRESENTATIVE SIMPSON: Okay. Thank you.
20 REPRESENTATIVE ANDERSON: Mr. Chairman, if
21 I may, line 19, page 12, you have a section in there on
22 building closure. Am I to assume that that would carry
23 through to the ultimate disposition of that building, the
24 plan would say we're ultimately going to tear this
25 facility down, we're going to try to sell this to the
107
1 public, we're going to try to use it for economic
2 development purposes? Is the State going to stay involved
3 in this process beyond just a decision to say that we'll
4 close it as it is no longer usable for instruction?
5 MR. NELSON: Mr. Chairman, I really didn't
6 elaborate to that extent. My thought was to simply put it
7 there to make it known that we want to look at many
8 alternatives to addressing it. It certainly could. I
9 just didn't elaborate beyond that point.
10 REPRESENTATIVE ANDERSON: I would like to
11 just mark that for later consideration, something to the
12 extent that the State is involved in the final
13 disposition. We have a vested interest in that. I think
14 we need to see it through. Thank you.
15 MR. NELSON: Continuing at page 14,
16 subsection (b), beginning on line 6, this starts the
17 process rolling. It is a bit rigorous. I put in a
18 July 1, 2003 date to get those plans in. That may be a
19 bit ambitious, but that was inserted to try to comply with
20 the Court's timing on getting remedies out there.
21 It also requires districts to annually update
22 these plans and to be -- to provide that the plans be in
23 accordance with the commission procedures. We have plenty
24 of room in here for the commission to establish what form
25 it wants these plans to take and to dictate other areas in
108
1 the planning process.
2 Subsection (c) is also important. This is kind
3 of, again, getting back to make sure that we're operating
4 in the current environment so what we require for the
5 State, we also require for the district. And we require
6 them to completely review and redevelop the plans every
7 five years or in another cycle that the commission deems
8 adequate for that district. But it would be a
9 comprehensive review of that plan every five years, in
10 addition to annual update.
11 COCHAIR DEVIN: Mr. Chairman, I guess I
12 would just point out that, as much as we could, I would
13 like to try to stick with the State because we're not
14 starting totally from scratch. Right now in order to be
15 accredited every building has to have a building committee
16 going and functioning and there's supposed to be a
17 five-year plan out there for major maintenance monies, I
18 believe.
19 So while this is a great deal more specific and
20 involved in the areas we've identified as problems, it is
21 not totally starting from scratch. So there should be at
22 least the beginning roots of this in every -- for every
23 building in every district.
24 MR. NELSON: On page 15, beginning on line
25 5, this requires or spells out the commission review of
109
1 the filed plans that districts provide the commission.
2 And again, these are trying to provide thought points that
3 meet with your past discussions.
4 One is the obvious, it complies with adequacy
5 standards; two, it reduces the inadequacies in a cost-
6 effective and efficient manner; three, brings up
7 nonconstruction alternatives; and four, we relate it back
8 to the statewide educational program, back to the basket,
9 make sure that the facilities are able to provide the
10 basket.
11 So these are just put in there as benchmarks for
12 you to add to, work with, whatever, but that would spell
13 out how the commission would review these plans.
14 Once they're turned in, subsection (e) provides
15 for a process of review by the commission. We require the
16 commission to review them within 60 days. They then take
17 action by either accepting or modifying or rejecting.
18 They then get back to the districts.
19 The districts have an opportunity to resubmit a
20 revised plan and then the commission would take it from
21 there. And this gives the commission the authority to
22 rework the plan as it sees fit and to go forward with that
23 plan, modified as it may see fit, although it would be
24 using the district input, it could change that to make it
25 fit with its schedule or its perceived needs or its take
110
1 on the situation. So that language is in that subsection.
2 COCHAIR SHIVLER: Madam Cochair.
3 COCHAIR DEVIN: Yes, I had a question on
4 that. Page 15, line 20, you have 60 days after receipt of
5 the plan that the commission needs to act, and yet they
6 have quarterly meetings. So have we got --
7 SENATOR CATHCART: At least quarterly.
8 MR. NELSON: At least quarterly.
9 COCHAIR DEVIN: That's right, it was at
10 least quarterly. You would envision staggering these
11 through the year so they didn't deal with all of them at
12 once or are we going to have one day or -- I know those
13 are practical questions, but --
14 MR. NELSON: Good question. They have a
15 lot of work to do. I would see them trying to get -- you
16 know, they have a deadline and I can't comment for them,
17 but you would hope that they would proceed in such a
18 manner that they should have an idea where the real
19 problems are.
20 You know, you could perhaps get through those
21 first and stagger it as you best need to, but still, I
22 think that there are tasks to get this thing started on a
23 statewide basis, so I think that there would still be some
24 pressure to get everybody reviewed the best they could in
25 the least amount of time that they could.
111
1 So I know that the workload will be horrendous
2 at first, but at some point you have to start whacking at
3 it, I guess.
4 COCHAIR DEVIN: And I would envision that
5 even though the commission might have 60 days to respond,
6 nothing keeps the director or this office from
7 communicating back with the district if they spot a
8 problem when the plan comes in.
9 MR. NELSON: Very good point. I would
10 hope that there would be some -- you would assume that
11 there would be some coordination.
12 SENATOR CATHCART: Mr. Chairman.
13 COCHAIR SHIVLER: Senator.
14 SENATOR CATHCART: In the way the Water
15 Development Commission operates, the commission meets
16 regularly, but the employees, Mike Bessom and his staff,
17 are in continual contact with municipalities or entities
18 on water projects. Then when the commission meets, they
19 make their recommendations to the commission, as
20 commission staff they make recommendations and ongoing
21 reports or other communications.
22 COCHAIR SHIVLER: Senator Massie.
23 SENATOR MASSIE: Thank you, Mr. Chairman.
24 I still think that was a good issue that was raised and we
25 might want to take care of that wording to make sure we
112
1 don't get ourselves in a pinch with regard to 60 days or
2 put some wording in there regarding deadline.
3 My question comes at the end of that paragraph,
4 subsection (e) on that over on page 16. Every once in a
5 while we see these provisions put into a bill and it
6 causes a great deal of debate, and I know there's been
7 some discussion whether it is even constitutional to put
8 something like that in there.
9 As a committee we want to perhaps think
10 carefully about that. An entire 52-page bill could focus
11 just on that one sentence and whether or not we would want
12 something like that in there.
13 REPRESENTATIVE BAKER: I'm lost,
14 Mr. Chairman. What is the issue Senator Massie is
15 speaking about, the reflecting commission priorities?
16 SENATOR MASSIE: No, Mr. Chairman, I'm
17 sorry, lines 15 through 17 on page 16. And it says a
18 decision by the commission under this subsection is a
19 final administrative decision not subject to judicial
20 review. I understand what we're getting at with that. It
21 is very controversial.
22 From my understanding of listening to attorneys
23 debate, they're not sure whether this is constitutional
24 for the legislative branch to forestall anybody to appeal
25 to the judicial branch or not.
113
1 COCHAIR SHIVLER: Colin.
2 REPRESENTATIVE SIMPSON: Mr. Chairman,
3 page 15, line 24 -- lines 22 through 24 says the
4 commission shall approve, modify or reject, and then 15,
5 the commission may restructure proposed remedies or
6 projects to best reflect commission priorities; is that
7 within the plan itself, one plan or all plans on setting
8 of priorities?
9 MR. NELSON: My thinking was all plans
10 this district would submit.
11 REPRESENTATIVE SIMPSON: It seems to me
12 then that sentence is a little out of place because then
13 you go on on page 16, line 2 talking about a specific plan
14 or a plan, where the sentence precedes that talks about
15 all plans, it seems to me.
16 And you used the word "restructure," where
17 before you used "modify," and then you used "modify" again
18 on page 16, lines 2. If what you're talking about is that
19 upon its review the commission may modify the proposed
20 remedies or projects, I'm not sure what restructure means
21 there.
22 COCHAIR SHIVLER: Denis.
23 MR. CURRY: Mr. Chairman, Representative
24 Simpson, I might shed some light on this. The intention
25 was to allow them to -- using the term "restructure
114
1 remedies or projects," let's say a proposed remedy is a
2 building addition, they -- this would -- and that's part
3 of the overall plan, the plan should contain responses to
4 all problems.
5 They might wish to say, "Well, instead of having
6 this addition, why not renovate the existing building to
7 accomplish the same end?" and thereby restructure the
8 project. This restructuring has the effect of modifying
9 the plan for that district and that's why the choice of
10 words there. That's -- not to take issue at all, but just
11 to indicate why the wording is as it was, that the
12 restructuring refers to remedies and projects that if they
13 were, then the plan would be modified.
14 REPRESENTATIVE SIMPSON: Mr. Chairman,
15 that makes sense.
16 On line -- page 16, lines 4 and 5, "If a plan is
17 rejected, notice of the plan...," shouldn't that say
18 "notice of the rejection of the plan"?
19 And then beginning at line 9 through that -- I
20 think line 15 it talks about a resubmission of a modified
21 plan, and then I guess the commission has the authority to
22 modify it. Can they reject it also again?
23 MR. NELSON: I think the thinking -- they
24 could reject it, but they would have to carry forward
25 something.
115
1 REPRESENTATIVE SIMPSON: It would have to
2 go through the same process again until you have something
3 that's acceptable to the commission?
4 MR. NELSON: Exactly. Or else they could
5 just proceed with their own plan, was my thinking, after
6 this amount of time. And that's for you all to -- I mean,
7 that's maybe how you want to figure it out. But my
8 thinking was that you get a shot to reconfigure it
9 according to whatever the commission said we have a
10 problem with, if that still didn't work, something needed
11 to go forward. That's all I was thinking. And after 120
12 days we may need to go forward with something.
13 REPRESENTATIVE SIMPSON: Mr. Chairman, we
14 may want to look at that language just to ensure that the
15 commission can reject it as many times as they want as
16 long as it keeps coming back until they get something, if
17 that's the idea.
18 I mean, if it is a final plan that's not
19 acceptable to the commission, all it says here is that the
20 commission can modify it. If the commission wants the
21 authority to reject it, then we need to put it in there,
22 it seems to me.
23 MR. CURRY: Mr. Chairman, again, Dave,
24 with your permission.
25 MR. NELSON: That's fine. That's fine.
116
1 MR. CURRY: At least when I was working
2 with Dave on this, the idea was that nobody could
3 stonewall and thereby force an impasse, so that if after
4 that it still wasn't acceptable, then the commission
5 should modify it because there's an obligation on the part
6 of the State to remedy the most -- the worst problems and
7 meet the Court's -- even if the district says, "No, we're
8 going to hold out until hell freezes over. We want a new
9 building. We're not going to resubmit our plan that way,"
10 something has to break the logjam and get a project before
11 the legislature for consideration. That's the reason for
12 the lack of rejection at that point.
13 REPRESENTATIVE SIMPSON: Mr. Chairman,
14 that makes sense, the language that way.
15 COCHAIR SHIVLER: Dave.
16 MR. NELSON: The next section deals
17 with -- we're starting to get into the prioritization
18 process, so this section deals with the commission using
19 the information that we have directed that they put
20 together. They use this information which consists of
21 needs assessment, the database that they've put together,
22 the local district facility plans, and then they annually
23 evaluate where we are as a state with respect to our
24 buildings and how they measure up to those standards.
25 Based upon that review, then, they then proceed
117
1 with putting together a schedule for remediating building
2 inadequacies.
3 And the paragraphs beginning on page 17 provide
4 some criteria over which they will assemble this
5 prioritization schedule of remediating these needs.
6 And, again, paragraph 1 relates to the basic
7 components that have been with us forever, it seems like,
8 on building capacity, building condition, educational
9 suitability and technology readiness which are currently
10 existing under the needs assessment that we currently have
11 in place for buildings.
12 We also break it down by educational and
13 noneducational building. We then look at the scores for
14 building condition. All of these elements as established
15 by the commission, which with our goal is to bring them up
16 to targeted minimum levels which we call adequacy, so
17 they're trying to be -- we have that statement in there
18 that the point is to bring them up to the adequacy level.
19 Then they analyze student enrollment growth to
20 determine capacity issues and how that impacts statewide
21 capacity issues, so we've brought that in.
22 I've also added some language just to bring out
23 for your thoughts with respect to how long it takes you to
24 comply with the adequacy standards to bring them up to the
25 space requirements, that you look at this prioritization
118
1 for two years for elementary schools and three years for
2 middle and high school students. So that would be figured
3 into the remediation process.
4 COCHAIR SHIVLER: Dave, we're back to
5 adequacy again. Are we using that score of 90? Is that
6 what this is going to be based on, or are we getting away
7 from that?
8 MR. NELSON: I think it is much broader
9 than that. I think we've gotten away from that. By
10 incorporating all the different factors in there that we
11 have in several places, I think that you not only consider
12 building condition, but you consider many other things
13 that we pointed out that would force them to look just
14 beyond the building condition rating.
15 COCHAIR SHIVLER: So that's just one
16 component?
17 MR. NELSON: That's one component of many.
18 COCHAIR SHIVLER: Madam Cochair.
19 COCHAIR DEVIN: Yes, Mr. Cochair.
20 COCHAIR SHIVLER: I guess that was part of
21 my concern I had on page 17 where we say scores for
22 building condition, because my notes indicated that, you
23 know, we needed some criteria that kind of puts a bright
24 line in there at certain points and that score should only
25 be part of that piece, that we don't -- I wondered if our
119
1 consultants feel we have sufficiently dispersed that score
2 issue. I think because a score is easily latched onto and
3 easily understood, it is also easily misunderstood and it
4 is only a piece of what we need to use in the
5 consideration.
6 Where we refer there on line 21, page 17, scores
7 for building condition, et cetera, have we emphasized
8 score too heavily or is it, in fact, mitigated enough in
9 the language, or have you any suggestions or thoughts on
10 that?
11 MR. CURRY: Mr. Chairman, Senator Devin,
12 that was the intention. Whether it has been done
13 sufficiently or not, we share with you the feeling that
14 scores are only one thing and that's why in one there will
15 be -- there's room for the establishment of criteria on
16 these particular aspects established by commission rule
17 and regulation and also the priority to be given to
18 educational buildings and a methodology and process for
19 identifying the most critical building and facility needs.
20 A score of 50 may or may not identify the most
21 critical building needs. The score is certainly one thing
22 they would want to look at, but there may be some other
23 factors and that would be, perhaps, the nature of the
24 major deficiency, crumbling foundation, you know, unsafe
25 ventilation system might take a building that had an
120
1 aggregate score of 70 and make it a more critical number
2 to be addressed.
3 I think that's what's anticipated here. If not,
4 other things could be added.
5 COCHAIR DEVIN: I think taken all
6 together, when you explain those pieces, it is better
7 woven than it was before.
8 COCHAIR SHIVLER: Senator Massie.
9 SENATOR MASSIE: Mr. Chairman, I had the
10 same thought as Senator Devin when I was reading through
11 here, and now that subsection (v) has been explained, I
12 can see how that has been addressed. I missed it the
13 first time through. I think perhaps getting more directly
14 to the point saying priority should be given to
15 educational buildings and to conditions in those building
16 that prevent delivery of the state's educational programs
17 and standards to make it perfectly clear what we're
18 getting at.
19 MR. CURRY: That's good.
20 COCHAIR SHIVLER: We will revisit that
21 later, I assume, when we come back.
22 MR. NELSON: Paragraph (b) requires the
23 commission, once they prioritize in subsection (a), they
24 then for each building facility determine a means to
25 remediate that building to meet the inadequacies.
121
1 Again, we -- an important point of this is
2 language at the top of page 19 on lines 1 through 4 where
3 we require -- in looking at building remediation, the
4 first level the commission would look at is what can be
5 handled through major maintenance payments, so that is
6 kind of tied together. They would review each particular
7 inadequacy and equate it and say, well, this may or may
8 not be able to handle true major maintenance.
9 If it could not be handled through that first
10 level of remedy, then they would move on to kind of a
11 second level which would be a bigger project and would
12 require a little bit more attention.
13 But I think that's an important point that is
14 made in this language, that that would be the first line
15 of defense for looking at inadequate buildings.
16 Once they get beyond that, then, they would look
17 at -- we have two kind of other levels; a minor capital
18 outlay which we've defined as anything under $200,000 over
19 and above major maintenance, and then a major capital
20 outlay which would be above that threshold. And these
21 will make a difference in where they're at and how they
22 proceed, which we will get into later in the next section.
23 But that's an important distinction that this
24 bill brings to you in terms of addressing building
25 inadequacies. So that's an important point right there.
122
1 The next section deals in what they do for these
2 minor outlay projects and the major outlay projects. And
3 again, an important point is this would require
4 legislative oversight. Language on the bottom of page 19,
5 line 24 and the top of page 20 require a legislative
6 review prior to implementing any of these remedies.
7 Paragraph 1 on page 20 says if it is minor, then
8 they initiate the remedy either directly or in cooperation
9 with a district as necessary to take the necessary action
10 to bring that building to the adequacy level.
11 And the second one would be the major project,
12 and this, again, would go back to that language we have
13 where they enter into agreement with the local district to
14 proceed on these projects, but it would require a similar
15 process to what we do now for the pipeline projects, a
16 similar sort of review where we would go out and develop
17 the value engineering, energy assessment, safety and
18 security assessment and so on and so forth.
19 Paragraph (e) at the top of 21 allows you to
20 work with those. If something is not quite necessary, the
21 commission would have authority to work with what they
22 felt would be the best analysis of that need. So that
23 would be the process for major capital outlay as
24 distinguished from a minor sort of remedy.
25 COCHAIR SHIVLER: Senator Massie.
123
1 SENATOR MASSIE: Thank you, Mr. Chairman.
2 With regard to the minor capital outlay of less than
3 $200,000, in the smaller school districts we have in the
4 state, do they have enough money through their major
5 maintenance payments to be able to take care of a minor
6 outlay? Because it doesn't appear that we're going to the
7 legislature for that money, so I suspect the only way they
8 could actually handle it is is through their major
9 maintenance payments.
10 MR. NELSON: That assumes it is something
11 over and above major. The State would go in there and
12 fund what it felt necessary, so that dollar threshold
13 amount is over and above what major maintenance may or may
14 not be able to take care of for that inadequacy.
15 The way the bill is drafted, the thinking was
16 they would still get legislative authority before
17 proceeding on that project before spending any amounts.
18 SENATOR MASSIE: Senator Devin just
19 pointed that out. I missed that.
20 COCHAIR SHIVLER: Dave, a major capital
21 outlay could be extensive remodel or a new building?
22 MR. NELSON: It could be any solution to
23 that problem that would be substantial, that dollar
24 threshold amount. It could be replacement with an entire
25 brand-new building, a repair or addition to that building,
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1 a new wing onto that building or whatever. It would be a
2 major project.
3 COCHAIR SHIVLER: Representative Baker.
4 REPRESENTATIVE BAKER: Mr. Chairman, let's
5 talk about this 20,000. Over and above that you're going
6 to be developing value engineering, schematic designs,
7 energy assessments, safety and security assessments of the
8 project, but there are some -- there are a significant
9 number of buildings even in small districts that just a
10 change in the heating system would be over $200,000. Is
11 that an appropriate amount? Maybe we should discuss that
12 a little bit.
13 MR. NELSON: That's a good question, and I
14 might call upon the technical minds here, the thought
15 being that we needed some line.
16 MR. CROMWELL: Mr. Chairman, we talked
17 about this a lot, and to kind of work with that we added
18 the language that these assessments wouldn't necessarily
19 always be done, these reviews wouldn't be done if they
20 weren't appropriate.
21 So you're quite right, we could just be
22 replacing a boiler for more than $200,000, then obviously
23 the commission would say obviously you don't need to do an
24 energy efficiency review -- or maybe you would, so they
25 would have the option to require or not require these
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1 reviews, depending on the nature of the project.
2 COCHAIR SHIVLER: The commission would
3 have this option?
4 MR. CROMWELL: Yes. Page 21, paragraph
5 (b) -- no.
6 MR. NELSON: (e), lines 1 through 4.
7 REPRESENTATIVE BAKER: And that does say,
8 Mr. Chairman, any, so some could be waived and some could
9 be -- that seems appropriate to me.
10 MR. CURRY: That's the intention.
11 MR. NELSON: Subsection (b) just allows
12 the commission authority to provide temporary space if
13 that's necessary when they're dealing with a building
14 inadequacy.
15 Subsection (c) again relates back to that local
16 agreement concept that we talked about at the beginning of
17 the bill and references that particular language in
18 managing the project and in pursuing any contractual
19 obligations that are necessary.
20 The next section deals with establishing the
21 budget and forwarding these budgets to legislative review.
22 A lot of this language is crafted under existing law that
23 we utilize for the state superintendent in proceeding with
24 her budget recommendations to the legislature.
25 But essentially it requires the commission to
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1 forward in a budget format its recommendations for that
2 particular biennium or perhaps the supplemental budget
3 period in addressing the projects that are in that time
4 frame. And they would provide the projects, together with
5 the necessary expenditures.
6 And then the other part that's important is on
7 page 22, beginning on line 10, there's a financing of that
8 particular remedy, and so that would include their
9 recommendation on how to pay for the needs that they will
10 present you with, how much of it would be directly from
11 the cap con account, how much would be leveraged through
12 bonding or perhaps sought through a lease payment
13 arrangement. They would give you a plan on that package,
14 and then you as a legislature would get that to you in
15 your normal budgeting reporting cycle.
16 COCHAIR SHIVLER: Dave, I'm assuming the
17 revenue bonds would be for enhancements.
18 MR. NELSON: Revenue bonds could be for
19 any part of the financing that they may need at the state
20 level for providing the remedy for that. It would be a
21 state revenue bond.
22 COCHAIR SHIVLER: I'm sorry. I was
23 thinking district.
24 MR. NELSON: Paragraph (iii), page 23,
25 just provides for the supplemental budget session language
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1 that they would come in and they could, as necessary,
2 modify previous budget recommendations that were adopted
3 for that biennium and could revise it accordingly.
4 Subsection (b) provides the authority to enter
5 into lease agreements on behalf of districts if that's the
6 chosen method of financing that particular need, so it
7 gives them some options on how to finance needs. And we
8 will get into that a little bit later.
9 SENATOR COE: Mr. Chairman, have we
10 covered paragraph (c) on capital leasing, or are we
11 skipping over that? Are we talking lease revenue bonds
12 there or --
13 MR. NELSON: That's the capital leasing
14 through a private entity, that option.
15 The next section on page 24 which deals with
16 emergencies -- and this draft handles it much the same way
17 that you set up last session for the state superintendent
18 where we would provide an emergency contingency account.
19 And again we're emphasizing that emergencies are a very
20 temporary measure, that we provide a temporary solution
21 until we can give more thought and take the necessary
22 action to address that particular problem.
23 It is set up much the same as you had set up the
24 current contingency action account for the state
25 superintendent.
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1 And that is pretty much all of page 24.
2 Page 25 provides for some reporting to the
3 Select Committee, and this would kind of give them at the
4 end of each calendar year, December 31, prior to the next
5 budget or legislative session a good review of what was
6 done during the preceding year in terms of addressing
7 building inadequacies, how that's proceeded, how major
8 maintenance has addressed some of those inadequacies, how
9 the solutions the commission's previously put into effect
10 addresses those, the amounts of dollars that we've spent
11 on those solutions, the impact of those expenditures and
12 then the future, a look at the future, what is going to
13 come up, the future-identified inadequacies, and then
14 cross-referencing those, future with past practices.
15 So you would get a good feel for what is going
16 on and was kind of intended to keep that committee up to
17 date on that's been going on in terms of capital
18 construction.
19 Page 27 begins the Select Committee and that
20 provides for its establishment. It is set up identical to
21 the select water committee. The membership is the same
22 sort of framework which is most of page 27.
23 The purposes are something that you may want to
24 establish as a committee, but these are put there to evoke
25 discussion. One of them is just to monitor the process to
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1 see what is going on. Another purpose would be to develop
2 the expertise and knowledge in school capital construction
3 and to review the commission proposals, to work with them
4 inputting and submitting their budget requests and their
5 identified needs and to help them present that to the
6 Joint Appropriations Committee and to the legislature.
7 And then we require the school facilities
8 commission to work with that committee to provide
9 information it may need and/or request. And so that kind
10 of covers the select committee.
11 SENATOR MASSIE: Mr. Chairman.
12 COCHAIR SHIVLER: Senator Massie.
13 SENATOR MASSIE: Thank you, Mr. Chairman.
14 As I read through this bill, there was just one
15 philosophical question that came up to me and it deals
16 with the select committee. And I'm wondering with the
17 responsibilities that we give to them in this first draft
18 of the bill if we really need a select committee.
19 The commission will be going through the regular
20 budget process with the governor and then the
21 appropriations committee and the process of trying to get
22 these projects funded, so that means the appropriations
23 committee will come up to speed quickly, I imagine, as far
24 as being experts on what needs to be done and why these
25 particular projects were chosen.
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1 It is just like we're setting up a process just
2 like any other budget request to come through the normal
3 legislative process to be funded. The select committee
4 seems to be formed almost as a built-in lobbying committee
5 to go also to the appropriations committee to say we have
6 reviewed this also and think this is a good idea.
7 If we were to give them some additional
8 responsibilities such as actually carrying that bill out
9 onto the floor themselves, rather than going through the
10 appropriations committee, since we're dealing with the cap
11 con account rather than the general fund in many or most
12 years, hopefully, that would, I think, be sufficient
13 responsibility to form this committee together for the
14 expense and time of being able to meet.
15 So I just wanted to bring my thoughts to the
16 rest of the committee on that about what role this
17 committee should play and if it is not significant enough,
18 whether or not we really need it in this kind of
19 commission setup.
20 SENATOR CATHCART: As I read how this bill
21 works, there's a lot of interaction between the select
22 water committee and the Water Development Commission.
23 Oftentimes we review projects and there's decisions made
24 by the commission to, let's say, remodel versus build new.
25 And some of those decisions are close calls and the
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1 commission and select water committee don't always agree
2 on those. So there is quite a bit of opportunity for the
3 select water committee to maybe disagree with the
4 commission and recommend a different route.
5 But I don't see that kind of interaction here.
6 This looks more like you might say a rubber stamp
7 committee, or, as Senator Massie said, a lobbying group.
8 I'm not sure there's enough involvement or interaction by
9 the select committee and I'm not advocating whether or not
10 we need a select committee. There could be appropriations
11 committee or education committee, but probably it is a
12 good idea to have a select committee that deals with that,
13 but I'm not sure they shouldn't be more involved in the
14 decision-making along the way along with the commission.
15 SENATOR COE: Mr. Chairman, I might just
16 add that I think probably in the formative stages of what
17 we're doing here, you know, maybe retaining the select
18 committee might be appropriate, but I could see a year or
19 two down the road where the commission could maybe pretty
20 much take over everything because there will be a lot of
21 stuff in-house by then. Maybe we wouldn't need anybody,
22 but in the transitional phase to deal with what we are
23 doing I think it is probably worth keeping.
24 COCHAIR SHIVLER: Any other comments?
25 MR. NELSON: Continuing, Mr. Chairman,
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1 we're getting now into kind of modifying existing statutes
2 to conform to the new commission.
3 The first amendment is on page 30. It deals
4 just simply --
5 COCHAIR SHIVLER: Mr. Nelson, the cochair
6 has a question.
7 COCHAIR DEVIN: Before we leave that
8 section, I'm looking on page 28, line 9 under the duties
9 of the select committee where it says, "Review commission
10 proposals addressing statewide building facilities needs
11 and provide recommendations to the joint appropriations,"
12 does that provide the latitude Senator Cathcart is talking
13 about where the legislative select committee may disagree
14 with the commission?
15 It says review, but does it also provide that
16 latitude -- if they're going to make recommendations, I
17 would assume they would have the latitude to alter the
18 commission if they felt that was appropriate. Is that
19 correct?
20 MR. NELSON: Madam Chair, I think that
21 they certainly could. I think the intent of what I was
22 thinking is that they could work with the committee in
23 taking the solution to the legislature. But certainly I
24 think that they as a committee could have their own
25 thoughts and that would weigh heavily into whatever the
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1 commission may or may not do.
2 So I would envision some input along those
3 lines, especially I would think the commission would want
4 to bounce things off of you. I mean, that would give it
5 an avenue, anyway.
6 SENATOR MASSIE: Mr. Cochair.
7 COCHAIR SHIVLER: Senator.
8 SENATOR MASSIE: Mr. Chairman, along those
9 lines -- and I agree with some modification we could give
10 this committee some authority, and I could see where that
11 would be a fruitful, productive way to go. Then I
12 question why then we would want to come through the
13 governor's office to the appropriations committee with
14 another recommendation.
15 The appropriations committee could be getting
16 conflicting recommendations, one filtered through the
17 committee and the other through the governor. Maybe we
18 just need one of those processes and if we were to set the
19 select committee up as being the one to go to the
20 appropriations committee and say, "We've reviewed this and
21 this is what we think," then I would see a legitimate --
22 not legitimate role, but a productive role for this
23 committee as opposed to going through the governor's
24 office and coming in through the standard budget.
25 SENATOR CATHCART: Mr. Chairman, along
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1 with that, if you look at the water bill, it doesn't go
2 through the governor's budget. It comes in and stands on
3 its own, but it has its own money also, so if we provide a
4 cap con account that's adequate to meet the needs of what
5 the bill is requiring, what Senator Massie recommends is
6 doable.
7 REPRESENTATIVE SIMPSON: Mr. Chairman,
8 what's the philosophical policy here that we're trying to
9 achieve, that the Water Development Commission is outside
10 the governor's budget? Here we're essentially earmarking
11 500 -- well, whatever you believe -- a large amount of
12 money for capital construction. Has the governor
13 requested that this come through his standard budget or --
14 MR. NELSON: Madam Chair, I just put this
15 this way to fodder this kind of conversation.
16 SENATOR CATHCART: I think Dave is
17 correct, if we assume the funding for cap con is not all
18 found in one pot, if that's the case, it certainly would
19 have to be in the governor's budget so he's aware that
20 amount is not available for other things.
21 So that's where there's going to be a lot of
22 difference between how we budget and fund this versus how
23 the Water Development Commission operates.
24 REPRESENTATIVE ANDERSON: Mr. Chairman.
25 COCHAIR SHIVLER: Senator Anderson.
135
1 REPRESENTATIVE ANDERSON: I would like to
2 ask a question of anyone who is capable or willing to
3 answer with regard to the work load of the water
4 commission in comparison to the commission that we're
5 talking about.
6 In my mind, and it may be an improper
7 impression, but in my mind the way I view the water
8 commission is lesser projects with larger values. What
9 I'm understanding here is quite a few building projects,
10 maybe not of the magnitude. Is that incorrect? I would
11 like somebody to compare the workload of two commissions
12 to see if in fact there's a parallel there.
13 COCHAIR SHIVLER: Senator Cathcart.
14 SENATOR CATHCART: Mr. Chairman, many of
15 the water development projects don't even come up to
16 $40,000. Very rarely do you have one that is 11 million.
17 We just had one this past budget cycle, but I would
18 calculate that the school cap con projects are going to be
19 significantly larger than what we normally see on water
20 development projects. The last huge project we funded was
21 Sandstone Dam project, $33 million, but typically if you
22 look at the omnibus water bill, very rarely is there a
23 project on there that is in the millions.
24 COCHAIR SHIVLER: Senator Coe.
25 SENATOR COE: To elaborate, that's why the
136
1 Management Council chose legally to have the school cap
2 con committee establish adequacy standards and whatever
3 else, and that's why the Finance and Investment Committee
4 is looking at how we're going to fund all these big
5 numbers out there. And we're going to see a proposal
6 tomorrow that will talk about bonding that really
7 starts -- over six years starts in the $60 million range
8 and works its way up over $100 million about year four and
9 five out.
10 To talk about the budget and where the money is
11 going to come from, I think they're both probably related
12 and interrelated with the school cap con, come up with the
13 standards and adequacy and whatever else to define
14 criteria, and the second part will be the financing
15 package and how to pay for it. We will consider all
16 options, whether or not that's property tax -- there's
17 going to be a gas tax proposal. All of that is out there
18 to be allocated.
19 COCHAIR DEVIN: Well, Mr. Chairman, I
20 guess something I need to weigh a little bit on this, I
21 think it could work either way. I think it could work
22 without a select committee going through the budget
23 process or it could work with a select committee.
24 I have a real -- I think we need to get this
25 system on good footing and operating before we try to mix
137
1 it with any other capital facilities. But there's been
2 discussion in the legislature for a long time that we need
3 to look at a broader piece of all of the capital needs of
4 the state and how do we bring that in and address it and
5 do we need to have a way to do it.
6 And I'm not sure which direction will best fit
7 with a long-range plan and whether we need to be
8 considering -- we could also do a piece one way and sunset
9 it and so forth, but I think it would work either way.
10 And I think we need to think about long term how we -- if
11 there's a desire to hold it together, how we best as a
12 legislature in the future would be able to get our arms
13 around the whole big picture.
14 COCHAIR SHIVLER: I think Senator
15 Anderson's question, there's no question about it, when
16 this committee starts up it will be a monumental task.
17 Once we get it rolling, the districts get used to getting
18 us the information, at that point it becomes -- but the
19 first four or five years there's going to be a learning
20 curve there that we're all going to have to go through.
21 MR. NELSON: Proceed?
22 COCHAIR SHIVLER: Yes.
23 MR. NELSON: Continuing, Mr. Chairman, the
24 amendment section of the bill, first of all, addresses the
25 state budget. That would need to be patterned on whatever
138
1 direction you do take, but we do require the state
2 budget -- just point this out, that provides kind of a
3 bookmark there at the top of page 30.
4 The next amended section deals with government
5 reorganization, and we establish the commission as a
6 separate operating agency, that's what that refers to,
7 9-2-1704.
8 The next amendment, 21-2-202, deals with the
9 state superintendent's authority and we eliminate the
10 capital construction program from her authority and would
11 place that, then, under the commission.
12 The amendment to the next section on page 31
13 there under Section 21-3-110 deals with the local boards
14 of trustees, and in there we require them to statutorily
15 develop this direct facility planning as will be required
16 by the commission and require them to report it to the
17 commission, as we've already looked over.
18 The amendment to 21-3-111, paragraph 2 doesn't
19 need to be in there. That can be just eliminated. I was
20 going to renumber them. I didn't do that. I forgot to
21 eliminate that particular amendment.
22 But paragraph 22 does, on line 18, and that just
23 allows them authority to enter into those agreements with
24 the commission on building remediation projects, so that
25 tailors their responsibilities to those that we've
139
1 outlined under the commission.
2 Amendments to 21-15-108 beginning at the very
3 bottom of 32 and continuing on through essentially the
4 middle of page 36 deal with the letting of bonds, and
5 again, this is the statewide revenue bonding provisions
6 that we currently authorize the state loans and investment
7 boards to do for school capital construction purposes.
8 This bill would give that authority to the
9 commission and remove it from the SLIB as under current
10 law. So this board would have that authority -- or this
11 commission would have that authority to enter into revenue
12 bonds and to execute those on behalf of the State if
13 that's authorized by the legislature to do so.
14 The Select Investments and Finance Committee
15 that will meet tomorrow will be looking at dealing with
16 the maximum amount. We have currently $100 million
17 authorized by statute, and I think they will be increasing
18 this quite a bit to -- it is one of their main plans to
19 provide financing for future capital construction needs.
20 So that amount will be dealt with by that
21 committee and State Treasurer Lummis will speak to you on
22 that a little later today. Just to caution you on that.
23 But essentially what amendments do is
24 essentially give that authority to the commission.
25 The next section that's amended is a little more
140
1 important, is major maintenance, beginning on the middle
2 of page 36. And essentially that transfers that from the
3 State department to the commission, that program. There's
4 one important amendment at the bottom of page 37, and
5 this, again, was discussed a little bit this morning with
6 Ray with respect to local enhancements. And that would be
7 the point that would bring up what part of square footage
8 the State would be responsible for on providing major
9 maintenance payments.
10 And under this section it would prohibit those
11 being provided through local enhancements, that square
12 footage to be included within the square footage that the
13 state payments would be based upon. So that's an
14 important component of that amendment to that section.
15 SENATOR MASSIE: Mr. Chairman, I was also
16 going to ask if we need to -- given the wording in the
17 spirit of this insertion, do we also need to put one
18 elsewhere in the statutes where we talk about routine
19 maintenance to ensure that funds that we distribute
20 through the educational services, you know, ADM grant,
21 that those routine maintenance monies also are not used to
22 keep -- to upkeep local enhancements?
23 MR. NELSON: Mr. Chairman, certainly.
24 Hopefully you will have that bill to amend that on under
25 the current MAP reconfiguration effort. It doesn't have a
141
1 separate square footage component, but if that becomes
2 necessary, there will be parts to work that and we will
3 have to coordinate that, but that's a good point.
4 COCHAIR SHIVLER: Mr. Simpson.
5 REPRESENTATIVE SIMPSON: Mr. Chairman, you
6 might want to build a little flexibility in here. Line
7 19, instead of the "gross square footage" put "no gross
8 square footage," and then line 22, under the next section,
9 "unless all or a portion of the enhancement is determined
10 to be included," because there may be an element of an
11 enhancement that might be included and under here it is
12 all or nothing.
13 MR. NELSON: I agree.
14 Another important amendment to the major
15 maintenance statutes appears on pages 41 and 42, and it
16 deals with the reporting currently that you all enacted
17 last session, five-year plan as Cochair Devin pointed out,
18 for major maintenance that's already in place and it ties
19 that down to the facility plan; it must be part of that
20 and must also be subject to state commission oversight.
21 And that part, that reporting requirement is tied down in
22 that subsection.
23 21-15-111 is current law that provides the
24 Definitions section. We've included definitions beginning
25 on page 43, defined the commission, defined local
142
1 enhancements, and over on page 44 we've defined a remedy
2 as to what that means.
3 And we've also eliminated the School Building
4 District Advisory Committee which is something we required
5 under the old law. It doesn't mean we want to eliminate
6 that point, but we no longer reference it in our planning.
7 That's why that's eliminated.
8 The definition of the act at the top of page 45,
9 we've got to add 21-15-108 which is the bonding. I
10 neglected to incorporate that on the second round of
11 revising the draft when we changed our mind as to where we
12 were going to go with this. That would basically appear
13 on line 5, page 45, be 21-15-108 in addition to 21-15-111
14 through 121. 21-15-112 is modified to include the
15 commission in the current scheme.
16 And then the repealed sections are essentially
17 stricken sections -- excuse me.
18 SENATOR MASSIE: Mr. Chairman, a question,
19 and I thought this might be an appropriate place to throw
20 it in under leasing.
21 Given this system, if we were to adopt it, who
22 owns these buildings?
23 MR. NELSON: Under the leasing concept --
24 SENATOR MASSIE: I think, Mr. Chairman,
25 just in general, if the State is going to pay 100 percent
143
1 for the buildings, the school buildings in the districts,
2 who holds the title? Who owns the buildings?
3 MR. NELSON: Provision under the draft was
4 that the districts would continue to. Whether or not that
5 meets with your desire, I mean --
6 SENATOR MASSIE: Then, Mr. Chairman, if
7 the districts continue to own the building, can the state
8 require them in changing on line 13 from may to shall --
9 require them to lease buildings that are purchased through
10 capital assets? I guess I am wondering if we -- first of
11 all, I mean, that is a question, who should own the
12 buildings in the state if the State is purchasing all of
13 the buildings.
14 But the other question is if the districts
15 continue to own them, I remember when we worked this
16 provision initially, we put the word "may" in there
17 because we were wondering if the State had the authority
18 to require -- I'm on the wrong section -- to require the
19 districts to actually lease land, building, equipment or
20 other noncapital assets from nonprofit corporations. Can
21 we require them to lease it or can we give them discretion
22 to do it?
23 MR. NELSON: Mr. Chairman, my thinking was
24 if that's your remedy and that's the way you're going to
25 finance it, you know, if the commission would enter into
144
1 that agreement and we would make the lease payments on
2 behalf of that, that's why that language was inserted that
3 way. But as to ownership, that's the committee's
4 decision.
5 SENATOR COE: Mr. Chairman, if you're
6 going to remedy the situation, if the State is going to
7 remedy it that way, you can't have the option out there
8 and that's where "shall" comes from, I think. Am I right?
9 MR. NELSON: Yes.
10 SENATOR COE: I'm not sure it really
11 addresses ownership, per se.
12 COCHAIR DEVIN: Mr. Chairman, I think
13 somewhere along the way if on the MAP side of our
14 calculations we're looking at things like insurance on
15 buildings and those kinds of pieces that the district
16 carries, then with my limited understanding of that legal
17 piece, they would probably need the ownership.
18 But I guess that's something that needs to be
19 maybe defined. If they're getting the money under the MAP
20 piece to take care of those things as a cost, then we
21 don't want to duplicate it by the State owning it and
22 needing to take care of it, too.
23 So I guess it could be done either way, but we
24 probably have some pieces there going out in the MAP
25 payment that are as though the districts owned the
145
1 buildings because that's the way it is being computed and
2 reflected in the costs.
3 REPRESENTATIVE ANDERSON: Not to harp, but
4 this takes me back to a point that I repeatedly am
5 intrigued with, and given that we may have a relatively
6 new building, three or four years old, you get a
7 precipitous drop in enrollment, the building is no longer
8 occupied, who does it belong to?
9 REPRESENTATIVE SIMPSON: Mr. Chairman, the
10 flipside of that is that you have a local enhancement and
11 it is all local money, it certainly wouldn't belong to the
12 state. But to answer Senator Anderson's question, I would
13 think you would have to -- it is an asset that is included
14 in this capital facility of schools in Wyoming, regardless
15 of who it might be owned by.
16 If that district wants a new school and they
17 have one that is unusable but might have salvage value,
18 shouldn't they have to achieve any value out of it they
19 can and apply that to a new building just like you would
20 with any asset?
21 COCHAIR SHIVLER: Senator Coe.
22 SENATOR COE: Mr. Chairman, my
23 understanding of Campbell I was that -- and we're still
24 paying for schools up in Cody even though everything has
25 happened, we still have our bond issue ongoing, as do a
146
1 lot of other districts. I thought the threshold time
2 frame was July 1st, 1997.
3 REPRESENTATIVE SIMPSON: Mr. Chairman, for
4 what?
5 SENATOR COE: On capital facilities, that
6 anything that happened after that could be considered the
7 responsibility of the State and possibly ownership of the
8 State. Everything prior to that would be ownership at the
9 local level. I could be wrong.
10 Dave, you know the date I'm talking about?
11 MR. NELSON: Right, and my understanding
12 of that date was at that point in time the State then was
13 responsible for ensuring that school facilities were
14 adequate or sufficient to provide for the basket. And it
15 was no longer an excuse that the district could not float
16 a bond issue to make sure that the buildings were
17 adequate. It was now the State's responsibility to ensure
18 that facilities are adequate.
19 And I guess I don't see that changing all that
20 much other than the State now is only required to do as it
21 determines what is adequate and they set the bar. And so
22 I guess my feeling would be that that has not changed all
23 that much since the original Campbell decision. Nor does
24 it require ownership. It just requires that the State
25 guarantee that the buildings are adequate for the basket.
147
1 But it doesn't prohibit ownership.
2 SENATOR COE: The follow-up, Mr. Chairman,
3 back in the original school cap con deal, we required
4 bonding and supplements, and, of course, in Campbell III
5 they aren't required to pass bonds, so I would interpret
6 Campbell III as saying basically that the ownership of
7 these buildings belongs to the State from now forward.
8 So I think it has changed. I could be off base.
9 I might be confused.
10 REPRESENTATIVE SIMPSON: Well,
11 Mr. Chairman, with any special districts -- I mean, if you
12 look at water development, some of those are special
13 districts that they helped fund and those are
14 quasi-governmental entities or agencies of the State and
15 essentially owned by the State. I don't know that anyone
16 else could claim ownership of it other than a school
17 district which is an entity of the State.
18 So de facto the State does own it, but I don't
19 know how land is titled that a school district owns.
20 Probably just School District VI, you know, by their board
21 of trustees. I don't know.
22 COCHAIR SHIVLER: That brings up an
23 interesting question Representative Simpson brought up,
24 what do you do with an enhancement, say a swimming pool,
25 that the city built for the school's use on school
148
1 property? What happens in that instance? I guess these
2 issues -- that there will have to be some sort of caveat
3 in there to cover that.
4 REPRESENTATIVE SIMPSON: Mr. Chairman, I
5 would suggest maybe the Attorney General could answer that
6 question through an opinion of ownership.
7 COCHAIR SHIVLER: Senator Cathcart.
8 SENATOR CATHCART: Mr. Chairman, I think
9 this is a pretty interesting discussion. Now, on
10 ownership when, as Representative Simpson said or Senator
11 Anderson, you have maybe in a specific school district a
12 building that's unoccupied for some reason, maybe it
13 doesn't meet the standard, but it may be a very good
14 building for some other -- an office building or
15 something, and that's an asset that maybe should apply to
16 the cost of a new building.
17 Is there any way that we do those things now?
18 SENATOR COE: Well, Mr. Chairman, I will
19 ask that -- the state treasurer just came in. Let's find
20 out if she thinks she owns something.
21 Cynthia, we're talking about who owns school
22 buildings that the state builds, the district or the
23 State.
24 MS. LUMMIS: You're asking me?
25 COCHAIR DEVIN: I guess that does raise
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1 the issue, Mr. Cochair. I'm not sure if we need to go
2 with an AG's opinion or not, at least request that.
3 But Senator Anderson raises the question: We
4 had a school many years ago that has probably pretty good
5 value sold. Unfortunately it is one of the few that we
6 actually sold and closed, and we sold it for far too small
7 an amount of money. But, you know, they literally can
8 almost -- those that need to close are almost in
9 commercial property areas sometimes because there's no
10 longer residential around to support them.
11 And I'm just not sure how that needs to fold
12 into the whole picture, but that can be a substantial
13 amount depending where it is or the lease of it.
14 If the district is requesting school facilities
15 and capital lease seems to be the way to go, I'm not
16 having yet quite as much heartburn about saying, "Well,
17 here is your new facility. It is adequate and this is the
18 best arrangement and it will go this way," but there are
19 some issues of ownership here I have no idea how to handle
20 or the sale of those assets at some point in time and
21 where that may go.
22 COCHAIR SHIVLER: Representative Baker.
23 REPRESENTATIVE BAKER: Mr. Chairman, this
24 subject came up before the appropriations committee and I
25 don't know if the members remember that -- and it is
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1 specific with the Natrona County School District Number
2 One there where they had multiple elementary schools they
3 want replaced and it is definitely their opinion that
4 those are their schools sitting on their land and they
5 will sell or do whatever they want with those schools and
6 they will dispose of the money how they want; that is
7 their money and it was pretty clear, at least from their
8 point of view, that that was something that was locally
9 paid for and generally was theirs.
10 Now, that is an opinion, but I would say that
11 that is probably consistent across the school districts of
12 the state, that those assets are their assets.
13 I think Representative Simpson has a good point
14 that the capturing of those assets probably needs to be
15 done. And I think we also should recognize human nature
16 in the fact that if there's no incentive to capitalize on
17 that asset, that very little will be done to make sure
18 that capitalization is maximized.
19 REPRESENTATIVE SIMPSON: Mr. Chairman,
20 isn't there a section in this bill that talks about
21 trustees' authority to buy, sell, lease, own?
22 MR. NELSON: Yes.
23 REPRESENTATIVE SIMPSON: Page 32, "The
24 board of trustees in each school district within the state
25 may: Acquire, hold, convey, lease, rent, manage property,
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1 real and personal, for the benefit of the school district
2 in the name by which the school district is designated,
3 either alone or jointly with another public or private
4 agency, institution, person or corporation. This includes
5 capital leasing..."
6 COCHAIR SHIVLER: That's one you suggested
7 we omit, wasn't it, Dave?
8 MR. NELSON: For the reason of my
9 amendment, which was just changing the statute and I had
10 not renumbered the bill at that point.
11 REPRESENTATIVE SIMPSON: So it looks like
12 the district owns it, but it is a state entity.
13 MR. NELSON: They do currently.
14 REPRESENTATIVE BAKER: However,
15 Mr. Chairman, the State would step in with bonding and
16 bond for the building of a building on somebody else's
17 land, that's where we have to identify who owns and who is
18 responsible for insurance, all kinds of things. That's
19 where we would have to identify it, who owns what and who
20 is responsible for that.
21 COCHAIR DEVIN: Mr. Chairman, I would just
22 ask of staff, Dave, is that something that you could
23 research for us? Is that more a decision that this
24 committee needs to make? How do you see --
25 MR. NELSON: We could certainly inquire of
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1 the Attorney General or independently seek if the decision
2 requires the State to own the buildings. That's what I
3 hear you all bringing forward, does the Supreme Court
4 require the State own the buildings, and we could
5 certainly get that back to you.
6 SENATOR MASSIE: Mr. Chairman, I think
7 that there's another question and that is if the local
8 districts can own a building through their local board of
9 trustees, can the State require that board of trustees to
10 enter into contracts and leases with a nonprofit
11 corporation.
12 MR. NELSON: I could certainly get back to
13 you on those questions.
14 REPRESENTATIVE ANDERSON: Mr. Chairman,
15 one quick, final piece to that: It is incorrect to assume
16 that these buildings would be nonserviceable. These could
17 be very serviceable, very usable buildings. And so that
18 leaves, then, the questions of maintenance, mothball, who
19 does that and where do those resources come from in the
20 event of continued mothballing that maintenance.
21 COCHAIR SHIVLER: Mr. Nelson.
22 MR. NELSON: Where were we?
23 COCHAIR DEVIN: Page 45.
24 MR. NELSON: Page 45, next phase of the
25 bill essentially goes with the transition to the new
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1 system. This is something the committee will probably
2 want to give some thought to. What the bill does is
3 provide a framework to get from one place to another.
4 What it does is number 1, page 46, beginning on
5 line 8, it provides for any adequacies that come to the
6 attention of the legislature under the current system and
7 how that is dealt with, so that would be any project that
8 comes through the state superintendent's budget this
9 session and how that is to proceed to be developed from
10 that point on.
11 The position of the bill is that would kind of
12 follow the existing process we've set for the pipeline
13 projects in that the need would be voiced to the
14 legislature through the budget of the state
15 superintendent.
16 The Joint Appropriations Committee then would
17 develop that recommendation to the extent it felt worthy
18 and to come back to you with a recommendation next general
19 session based upon a series of project reviews, value
20 engineering, that whole setup of professional review that
21 we did for the pipeline projects. That would be that kind
22 of project and need.
23 Subsection (c) beginning on page 47 deals with
24 the needs identified by the state superintendent under her
25 statutory duties for the next set of projects, would be
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1 what we call the immediate needs list, which would put
2 forward to you some projects that score below a certain
3 point rating and that would come to you in this fashion.
4 How the bill deals with those projects is to
5 require the commission that's established by this bill to
6 proceed in conjunction with the state superintendent and
7 try to develop some recommendations based upon some
8 extensive analysis. And it would go beyond the sort of
9 review that the Joint Appropriations Commission conducts
10 in that it not only would go to project value review sort
11 of thing, but would go one step beyond that in that it
12 would try to craft some kind of remedy based upon the
13 perceived need and where you need to get to a condition of
14 adequacy. It would not be based upon district
15 application.
16 So that would be kind of another set of projects
17 that would come to you in the 2003 general session. And
18 again, that would be based upon the cooperative effort of
19 the state superintendent and the commission and school
20 districts working together, coming forward to the Joint
21 Appropriations Committee and the governor in the budget
22 and then coming to you during the general session 2003
23 legislature.
24 So that's another set of projects, okay. So
25 there are two kind of levels there until the commission is
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1 to a level that it is fully activated and ready to go with
2 local planning and all the information it needs to go
3 forward. So that is the vision that's provided under
4 subsection (c) on page 47.
5 COCHAIR SHIVLER: Let me clarify
6 something. The immediate needs, would work for the
7 commission --
8 MR. NELSON: The commission --
9 COCHAIR SHIVLER: The pipeline projects
10 would continue as they're going now; is that correct?
11 MR. NELSON: Existing ones.
12 COCHAIR SHIVLER: Would the commission be
13 involved in those?
14 MR. NELSON: No, they wouldn't, because
15 you would have to deal with them in the budget session if
16 things go according to plan. Hopefully that remedy would
17 be finalized this session and those would be off the
18 table.
19 The ones that would not be would be -- for
20 example, Powell was brought to you this session -- this
21 summer in the form of that application and no action was
22 taken on that. That, then, would have to be looked at
23 next summer.
24 COCHAIR SHIVLER: That would go into the
25 immediate needs project? That's not a pipeline project,
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1 is it?
2 MR. NELSON: It would be kind of like a
3 pipeline 3 -- it depends on what the state superintendent
4 brings forward to you in her budget. And my understanding
5 is this session she will bring you that project, not in
6 terms of funding the overall project but in terms of
7 providing them with planning monies that they can go out
8 and provide sufficient information from which -- that the
9 Joint Appropriations Committee could conduct the level of
10 reviews that it did for the existing pipeline projects,
11 but would be involved to the extent it could the
12 commission.
13 So the commission would be -- would be -- it
14 would be a little bit different than the immediate needs
15 list so there is that distinction between (b) and (c).
16 COCHAIR SHIVLER: You're holding this up
17 and Mary Kay is holding this up.
18 MR. NELSON: It does get confusing.
19 COCHAIR SHIVLER: It does.
20 MR. NELSON: It does, but it is taken in
21 the spirit that we keep this going and keep on the
22 schedule the Court has put forward so we don't get behind.
23 Subsection (d) at the bottom of page 47 and the
24 top of page 48 requires the state superintendent and the
25 department to cooperate with the commission in executing
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1 what is necessary and it also requires the state
2 superintendent to ensure that the affected school
3 districts comply with the required informational requests.
4 So that is an important point that we just went through,
5 and it is crucial to the transition process.
6 Subsection (e) merely transfers the assessment
7 to the commission.
8 Subsection (f) transfers the major maintenance
9 program to the commission.
10 And subsection (g) transfers all rules and
11 regulations that relate to the needs assessment, the major
12 maintenance program, the standards, any other cap con
13 program to the commission such that what is in effect
14 remains in effect until such time as the commission amends
15 or rescinds or somehow modifies those rules.
16 And subsection (h), page 49, transfers
17 unencumbered amounts within the emergency contingency
18 account back into the cap con program.
19 Section (v) will provide, when we get the
20 numbers put together, appropriations, number one -- under
21 paragraph (i) on page 49 to, number one, first of all, to
22 take care of any professional review that's necessary to
23 get those projects that are in the state superintendent's
24 budget to provide you with the professional review that's
25 necessary to get that information to the Joint
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1 Appropriations Committee so it can come forward to a
2 recommendation to the 2003 session.
3 Paragraph (ii), page 50, provides dollars to the
4 governor as necessary until the commission gets activated,
5 to do the required review and analysis of those projects
6 resulting from the immediate needs list.
7 Subsection (b), page 50, line 18, is a benchmark
8 for an appropriation to fund the initial operations of the
9 commission until a formal budget comes forward, including
10 consulting expertise and staff expenses that may be
11 incurred prior to June 30, 2003, together with the local
12 planning money that would be necessary for districts to
13 commence work on their local facility plans.
14 Subsection (c), page 51 merely earmarks monies
15 within the cap con account for the emergency contingency
16 reserve fund for emergencies.
17 Subsection (d) provides money for the select
18 committee and then that is pretty much the initial
19 appropriations, and we can come back and fill in the
20 blanks if this is in fact how the committee wants to go so
21 you have some idea of the magnitude of the amounts we're
22 talking about here.
23 Section (vi) deals with the initial
24 appointments, and for the commission there is an error.
25 We do have July 1 as the date on the bottom of page 51,
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1 line 24, and the top of page 52, line 1. That probably
2 should be based upon appointment because I took care of
3 that in the effective date clause that intended to get the
4 appointment up and running as soon as the bill was signed
5 into law, so I could make that conforming amendment.
6 The select committee, I think July 1, 2002 is
7 sufficient to get that thing on board as speaking on its
8 initial points and then the effective date which would get
9 the commission rolling.
10 Very briefly, that --
11 COCHAIR SHIVLER: Very briefly --
12 monumental effort, Dave.
13 SENATOR CATHCART: Outstanding.
14 SENATOR COE: That's outstanding Dave,
15 Mary.
16 COCHAIR SHIVLER: Behind every great man
17 is a woman who did the work.
18 SENATOR CATHCART: Dave says don't praise
19 me, raise me.
20 MR. NELSON: There you go, speaking my
21 language.
22 COCHAIR SHIVLER: All right. Now, that
23 was -- we're not going to work this, are we?
24 COCHAIR DEVIN: I think those amendments
25 that -- I think, Mr. Cochair, what our staff is
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1 particularly asking for is there any major direction you
2 want changed in here, and then timewise I guess we need to
3 weigh, if we know there are certain amendment changes Dave
4 would make and we could go through those rather briefly,
5 we would convey that.
6 But you need major changes, mainly?
7 MR. NELSON: Exactly.
8 COCHAIR DEVIN: The smaller ones we've
9 identified, would you like us to quickly identify those?
10 MR. NELSON: It is up to your call,
11 whatever you wish, but certainly any major change in the
12 direction of it.
13 COCHAIR DEVIN: Because we will have the
14 29th to look at this, and we may or may not be able to
15 finish our piece at that point, but it becomes a lot more
16 difficult after the 29th for this committee.
17 SENATOR CATHCART: Mr. Chairman.
18 COCHAIR SHIVLER: Senator Cathcart.
19 SENATOR CATHCART: Will we go back over
20 the bill on the 29th and have opportunity to offer
21 amendments then?
22 COCHAIR DEVIN: Except then we won't have
23 it in the form of final approval. What we do today we'll
24 get a more final draft to look at.
25 MR. NELSON: I could provide you with
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1 another draft, but as Cochair Devin pointed out, it would
2 take another finalization meeting, probably in January or
3 something, to come back and finalize it.
4 SENATOR COE: Mr. Chairman, I think we
5 should talk about if there's any major, major stuff we
6 want to change in there. I think as far as small, little
7 amendments and stuff out there, we can do that on the
8 29th. It is just my suggestion we talk about if in fact
9 there are any major changes we want to talk about.
10 COCHAIR SHIVLER: Representative Baker.
11 REPRESENTATIVE BAKER: Thank you,
12 Mr. Chairman. I want to turn to page 18 and I want to
13 talk a little bit about this romanette (iii) from line 4
14 on page 18, that entire paragraph.
15 And I don't know, Mr. Chairman, if this is
16 significant, but I think we do need to start talking about
17 analysis of student enrollment changes rather than growth.
18 My assumption has always been growth, and things that need
19 to be done to address growth, but I think in this
20 paragraph -- and I have some wording and I think we ought
21 to change the word "growth" to "changes" so it would read
22 "analysis of student enrollment changes as based upon
23 commission-approved enrollment projection methodology to
24 determine a need for changes in needs for additional" --
25 and strike the word "additional" -- "for building capacity
162
1 over time."
2 So that sentence would read "analysis of student
3 enrollment changes based on commission-approved enrollment
4 methodology to determine the need for changes in building
5 capacities over time for compliance with statewide
6 adequacy standards."
7 I think we need to address both sides of this
8 question in this paragraph and any others that I've looked
9 at in the student enrollment are presuming growth. But I
10 think as Senator Anderson and I have been kind of pushing
11 here, and particularly Senator Anderson, we need to
12 address changes, significant drops, and that commission
13 ought to be looking at both, and the ability, maybe, for
14 making a decision to close X, Y elementary school and
15 those students be distributed to Z, W and A, B and, you
16 know, those kinds of changes that could help -- that a
17 local school board sometimes doesn't want to make, but
18 with the commission's help can make.
19 And so I think we need to not change the
20 direction but some of the focus of this particular
21 paragraph.
22 COCHAIR SHIVLER: Anyone else have a
23 comment on it?
24 I certainly agree with you, Representative
25 Baker. Out of 48 districts, 43 are losing students.
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1 I think we need to look more at changes than growth.
2 If there's no objection to that...
3 COCHAIR DEVIN: Mr. Cochair, I guess on
4 page 2 we had a little discussion about maybe we could
5 make some of those job descriptions in the director and
6 the commission members -- while they may need some
7 expertise in building and facility engineering, it may not
8 have to be specific to schools but try to be selective
9 that they're only specific to schools where they need to
10 be.
11 And then I think on page 7 where we talk about
12 the director, we don't want to have to walk on water to
13 get the job done, but try to get the description so we get
14 the expertise but not unrealistic in that we would be
15 unable to hire someone for that position.
16 And I guess also, Mr. Cochair, I would like to
17 suggest that we consider a different amount on page 4 for
18 that. I got a note that $50 a day came from the water
19 commissioners and that is what they're paid. It was
20 originally enacted in 1979 and it has never been changed.
21 There has been the suggestion that we make it $125, the
22 same as legislative pay.
23 You are asking professionals -- if you're
24 looking at the description, we're asking professional
25 people to leave a day of work, most of whom are in private
164
1 employment, probably, and won't have that paid in another
2 way, in another manner, and I think a larger sum is
3 probably appropriate to ask the citizens to give that kind
4 of time.
5 SENATOR CATHCART: Probably see a like
6 amendment on the water commission also.
7 REPRESENTATIVE ANDERSON: Mr. Chairman, if
8 I may, page 12, line 19, we briefly touched on that and
9 had a lot of conversation with regard to ownership. I
10 would like to see some sort of direction to the commission
11 in regard to what they can do after closure of a building
12 where they might be involved with demolition or might be
13 involved with sale or mothballing, whatever, to keep the
14 commission involved after the closure of the building,
15 some sort of statement.
16 SENATOR COE: Mr. Chairman, are you taking
17 amendments right now?
18 COCHAIR SHIVLER: I think Mr. Nelson is
19 writing down our list and is going to include that in the
20 29th.
21 SENATOR COE: Mr. Chairman, I have one
22 thing I would like to bring you. Go to page 17, it talks
23 about the schedule identifying, and going to facilities
24 remedies, line 10, based on the following, and then
25 there's (ii). On (ii) I would like to see us consider
165
1 taking the words "score, score" out of there and having
2 that say "building condition, educational suitability and
3 technology readiness" and the balance of that paragraph.
4 COCHAIR SHIVLER: Representative Baker.
5 Since 90 has been such a big issue, I agree.
6 SENATOR COE: I think it has something to
7 do with the Supreme Court, I believe, said that the
8 standards that we established, and they brought that back
9 into Campbell III here, we can establish the standards, so
10 whatever standards we come up with, common sense, they use
11 that in there, things like that, I just hate to see us tie
12 that to scores specifically.
13 No offense with your scores out there, but it
14 makes sense to me maybe not to have that right there
15 mandated out -- or dictated is better word.
16 MR. CURRY: So to follow your intent but
17 to kind of close the sentence, you might wish after
18 "capacity" on line 23 to put "measures," so it would read
19 "building condition, educational suitability and
20 technology readiness measures." I had it in the wrong
21 place, after "readiness," that gets away from the word
22 "score," but it -- I think it makes the sentence read more
23 completely.
24 REPRESENTATIVE SIMPSON: Mr. Chairman, how
25 about "measures of building condition, educational
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1 suitability and technology readiness"?
2 SENATOR COE: Anyplace in there,
3 Mr. Chairman. I just don't like "scores" anyplace in
4 there.
5 REPRESENTATIVE BAKER: Mr. Chairman.
6 COCHAIR SHIVLER: Representative Baker.
7 REPRESENTATIVE BAKER: If we include that,
8 I would like to talk about the word "qualified contract
9 assistance" at the bottom line of that on page 17. That
10 says that we can't develop it inside, we have to contract
11 it outside. Right now I would say we would want to
12 contract, but in three years are we going to have to come
13 back and change the law so if we decide we want to develop
14 it inside? If we struck the word "contract," it would be
15 open. The commission could use qualified assistance.
16 COCHAIR SHIVLER: Okay, Dave.
17 MR. NELSON: I think you could even
18 eliminate the whole phrase as to use of qualified contract
19 assistance.
20 SENATOR CATHCART: Just delete that.
21 MR. NELSON: I think it is superfluous, so
22 just delete the whole clause there.
23 COCHAIR SHIVLER: Senator Massie.
24 SENATOR MASSIE: Mr. Chairman, a couple
25 points. I think that qualified contract assistance is
167
1 elsewhere. I can't find it right away. I think it is
2 elsewhere in the bill, so it is more than one place where
3 we cited that where we would need to delete it.
4 The other point I was going to make here is
5 before I had mentioned some language on page 18 after --
6 line 15, after "buildings" to say, "Priority shall also be
7 given to conditions in education buildings that prevent
8 the delivery of the state's educational programs and
9 standards."
10 If folks are comfortable with that, I can
11 provide the language to Mr. Nelson on that, but what I was
12 getting at there is to make sure it is a priority, is
13 focused on those provisions that prevent the delivery of
14 the basket.
15 COCHAIR SHIVLER: That's in 14?
16 SENATOR CATHCART: Line 14.
17 SENATOR MASSIE: Essentially it would say
18 in line 14, "Priority shall be given to educational
19 buildings and to conditions in those buildings that
20 prevent delivery of the state's educational programs and
21 standards."
22 MR. CURRY: That's a good thought.
23 Friendly suggestion on that, Senator Massie, instead of
24 prevent, what about impede?
25 SENATOR MASSIE: That's fine.
168
1 MR. CURRY: They may be able to do some of
2 it.
3 SENATOR MASSIE: And then finally,
4 Mr. Chairman, I've got a big philosophical one. Assuming
5 that our counterpart committee will provide a way to
6 sufficiently fund the capital construction account so that
7 we can cover the costs that are incurred here, I throw out
8 for the suggestion or consideration of the committee that
9 the recommendations of the commission with regard to major
10 maintenance and capital construction projects not go
11 through the normal budget procedures, but instead the
12 select committee is empowered to develop those
13 recommendations and take them to the appropriations
14 committee and the appropriations committee would develop
15 it into a bill to bring out to the floors just like select
16 water does through the ag committee.
17 COCHAIR SHIVLER: Maybe that was too
18 philosophical for us.
19 SENATOR MASSIE: If we do want to make
20 those changes, Mr. Chairman, we should do it now so the
21 staff has a chance to do it. If we don't, that's fine. I
22 don't think that we can make those changes on the 29th
23 that readily. That's why I throw it out now.
24 COCHAIR SHIVLER: Dave, what are your
25 feelings on that?
169
1 MR. NELSON: It is your decision. As to
2 whether or not you should or as to the mechanics of
3 doing --
4 COCHAIR SHIVLER: The mechanics of doing
5 it. I'm sorry.
6 MR. NELSON: It is kind of a major shift,
7 but I could probably -- I mean, you know, I'll do what --
8 I will try to do what you want, best I can. So it is kind
9 of your call.
10 SENATOR COE: So Senator Massie --
11 Mr. Chairman, I would like to ask Senator Massie, so when
12 the water commission takes their omnibus bill straight to
13 the ag committee, the ag committee then sponsors it on the
14 floor. That of course has a dedicated revenue stream into
15 it.
16 In this particular case the Finance and
17 Investment Committee would come up with the
18 recommendations on how to finance what we're trying to
19 implement here and do, and we would bypass the majority of
20 the budget process and go straight to the appropriations
21 committee for sponsorship; is that correct?
22 SENATOR MASSIE: Mr. Chairman, correct.
23 It would be the select committee on school facilities that
24 would, working with the commission throughout the year,
25 much like the water commission does, take those
170
1 recommendations to a standing committee.
2 It could be the education committee, it could be
3 appropriations -- I'm just suggesting appropriations at
4 this time -- and then that committee would then sponsor a
5 bill out to the legislature.
6 The premise is built upon that we would have a
7 self-sufficient fund in capital construction much like
8 water has in the water account.
9 COCHAIR SHIVLER: Senator Cathcart.
10 SENATOR CATHCART: Mr. Chairman, I think
11 that's a really great idea, but we're making an awful big
12 premise there because what I predict in the first year or
13 two of this operation of this work we're going to be
14 taking money from the budget reserve account and from all
15 kinds of sources to meet the needs, the cap con needs.
16 I'm hoping that -- I'm with you, I'm hoping the
17 capital finance committee is able to create an earmarked
18 account like we have with the water accounts that we can
19 operate from.
20 But what if we make a major change like that in
21 this bill and then we end up having to go through budget
22 reserve accounts and all of those sorts of things this
23 first year or two? In that case this budget needs to be
24 included with the governor's budget so he knows or can
25 anticipate how much money is needed.
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1 That's the only part I think of the premise,
2 that we're going to have an earmarked account that is
3 going to meet all the needs in the first year, a little
4 questionable.
5 COCHAIR SHIVLER: Dave.
6 MR. NELSON: Mr. Chairman, I think Senator
7 Cathcart voiced my concerns. I think that's the
8 disadvantage of doing it separately is you remove the
9 ability to include it in the entire legislative package
10 for that particular point in time. Not saying you
11 couldn't, it would make it a little bit more difficult
12 because this would be in a separate piece that you would
13 have to make sure -- I mean, the legislature still would
14 have the ability to make sure or you would hope would have
15 the ability during that same session to ensure that
16 whatever plan is in place, that sufficient monies would be
17 in the cap con account because whatever recommendations I
18 think that would be forwarded by a separate budget would
19 be from the cap con account, and you would still maybe
20 have that -- it depends how it was fashioned, but I think
21 you could probably do it either way, but it would be more
22 difficult as you remove it from the entire budget process
23 from putting your whole legislative plan together.
24 COCHAIR SHIVLER: Senator Massie.
25 SENATOR MASSIE: Mr. Chairman, I see the
172
1 point there and I guess it is our call with regard to what
2 the other committee is going to do. I don't know how far
3 our system is going to get, as good a one as this
4 committee may set up, if we don't have this thing funded
5 from other sources this is going to break down anyway.
6 But that's the reason, Mr. Chairman, is I'm
7 aware -- I don't want this to be separate from the
8 budgeting process. That's why I'm suggesting this
9 committee take it to the appropriations committee which is
10 also hearing the governor's budget and can put something
11 together that's going to make sense. That's why I
12 recommended -- otherwise I'm wondering -- if we don't do
13 this, I'm wondering does this committee have enough to do
14 to justify the expense and time for folks to come down
15 here.
16 Perhaps in the first couple years we should
17 charge reporting to the education committee, that this
18 commission come to the education committee and explain
19 what they're coming up with and use the education
20 committee as the sounding board to proceed rather than
21 forming a select committee.
22 COCHAIR SHIVLER: Representative Baker.
23 REPRESENTATIVE BAKER: For your
24 discussion, and I'm looking at page 21, commission budget
25 and funding recommendations, and that's where Senator
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1 Massie is going to, the governor has to -- this is more
2 for information putting things together, if you will, as
3 I'm thinking about this, I can see advantages to both
4 sides. We do not know what the governor's budget
5 recommendation is and I'm sure that's not finalized, but
6 by law it is to be finalized by the 1st of December. The
7 base budget, standard budget and all of the agency
8 requests have been in to the governor for months and we
9 have a November 1st top end of some 70 million, 80
10 million, $100 million is possible.
11 Now, I'm sure that everybody has been aware of
12 this because it is on the front page. Everybody has been
13 aware of school capital construction, that the needs are
14 going to be there, but it is kind of late in the process
15 to be poking in, literally, what could be 10 percent of
16 the general fund in some years. That's a little bit of a
17 concern as I looked at that November 1st.
18 However, we've got to have some time for some
19 people to work, too, and so I'm not sure that -- it does
20 kind of put the executive in a little bit of a box here to
21 have a significant number that's unknown until fairly
22 close to the end of putting a very large budget together.
23 If you're talking about $100 million in general
24 funding in one year and the biennium general fund budget
25 is 1.3 or 1.4 million, which actually for this biennium is
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1 only 1.2, next biennium projected it will be some 1.3,
2 okay, annualize some of that to potentially be 160, 180
3 million in the biennium.
4 I would say that the governor has to have some
5 of this in mind, executive branch has to have some of this
6 in mind as they develop their budget and this is -- the
7 Supreme Court says you must.
8 COCHAIR SHIVLER: Senator Coe.
9 SENATOR COE: Mr. Chairman, I'm not trying
10 to change the agenda, per se, but all of this discussion
11 we're having is very, very relevant to what we're going to
12 consider tomorrow in finance and investment.
13 I see Madam Treasurer out there. It might be
14 appropriate at this time with the discussion we're having
15 to show everybody on this committee what we're going to
16 consider tomorrow at our meeting a little bit. I think
17 she's on the agenda right after one of the line items
18 here. I don't know if you want to consider her now for
19 the benefit of what we're talking about.
20 COCHAIR SHIVLER: We're running into a
21 physical constraint. I see our stenographer about to fall
22 out of her chair.
23 SENATOR COE: I was going to suggest,
24 Mr. Chairman, you take a break.
25 COCHAIR SHIVLER: We'll take a 15-minute
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1 break and be back at quarter after 3:00.
2 MR. CURRY: We have to leave.
3 COCHAIR SHIVLER: You will miss the best
4 part.
5 MR. CURRY: With your permission.
6 (Recess taken 2:55 p.m. until 3:15 p.m.)
7 COCHAIR SHIVLER: Representative Simpson.
8 REPRESENTATIVE SIMPSON: Mr. Chairman,
9 just one point I wanted to address before we went on, and
10 that was page 6, paragraph 8 talks about local enhancement
11 and -- I lost my place -- page 6, and then there's another
12 portion.
13 Dave, where else does that -- page 11.
14 MR. NELSON: It appears several places.
15 REPRESENTATIVE SIMPSON: Page 6 and page
16 11, page 11 says that the commission shall review and
17 evaluate the -- "Review and evaluation of the standard
18 shall include a review of local enhancements to buildings
19 and facilities during this review and evaluation period
20 and based upon criteria established by the commission a
21 determination as to if any local enhancements are to be
22 incorporated."
23 If then if you compare that with the language on
24 page 6, in that subparagraph (viii), I'm a little
25 confused. You are wanting the commission to establish
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1 criteria and procedures for the identification and review
2 of local enhancements themselves that exceed state
3 adequacy standards, and then develop a process to
4 determine if incorporation is appropriate, which is the
5 same thing it says on page 11. You're really wanting on
6 page 6, line 15, I think, to develop criteria and
7 procedures to determine any incorporation of that, aren't
8 you?
9 I guess all I'm saying is those are inconsistent
10 with me and a little confusing and they could probably
11 read much the same way on page 6, paragraph (viii) and
12 page 11, at the very top of page 11, because you're
13 establishing criteria and procedures to identify and
14 review local enhancements, and then I think you're also
15 suggesting that you need a criteria and procedure to
16 determine whether those local enhancements that you've
17 identified then become part of the statewide adequacy
18 standard and not just the process. You need the criteria
19 too. And that criteria is identified on page 11.
20 MR. NELSON: Okay. I think you're right.
21 I don't mean for this to be confusing. I think when it is
22 mentioned on page 6, yes, the commission is to establish
23 criteria and the procedures which would do that, just as
24 you say, for the identification, when that bar, the state
25 bar changes, that we must include those local
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1 enhancements.
2 Page 11 is to mean much the same thing. It is
3 mentioned in light of the periodic review of the needs
4 assessment and the state standards every four years, and
5 my intent was to include anything that was identified at
6 page 6 and established in that process where we say,
7 "Okay, state standards are updated. State assessment is
8 updated."
9 So yeah, I agree.
10 REPRESENTATIVE SIMPSON: Dave, I'm almost
11 suggesting that there are two criteria. The first
12 criteria is whether it is a local enhancement. The second
13 criteria is then whether that local enhancement should
14 become a statewide adequacy standard.
15 MR. NELSON: Sure.
16 REPRESENTATIVE SIMPSON: And I like how
17 you stated that on page 11 at line 5, "determination as to
18 if any local enhancements are to be incorporated." It is
19 totally discretionary, as long as you've got a criteria
20 and a procedure.
21 Thanks, Mr. Chairman.
22 COCHAIR SHIVLER: Okay. I think when we
23 adjourned we were looking forward to the treasurer's
24 presentation to us.
25 Would you like to go ahead and go through this
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1 before Cynthia talks to us?
2 MR. NELSON: Mr. Chairman, sure. LSO 207
3 is a separate piece of legislation which is dealing with
4 some local bonding issues, and what this brings to you is
5 several programs that are in place that are in place to
6 augment and to provide state assistance for local bonding
7 efforts as is required under the old system.
8 One of them is the mill levy supplement program,
9 another is the bond guarantee program, and based upon the
10 Supreme Court decision in that the ability for local
11 bonding is to continue, I think the legislature and the
12 committee need to make a decision if they want the mill
13 levy supplement assistance to continue to apply to any
14 bonding that may be undertaken by local districts which
15 would go above the state adequacy levels in the future and
16 what impacts that may have for the bond guarantee program
17 which, as you recall, is a state program which the State
18 will guarantee a local bond issue through state resources
19 so that it can get a more favorable rate than the
20 marketplace.
21 The position that the draft takes and kind of
22 cohorts with Mr. Keith Curry as our state investment
23 expertise available to the state treasurer and to the
24 governor and to the Select Capital Investments Committee
25 was that we should not apply them to future bond issues in
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1 the future, so that is the intent of this legislation.
2 And that's what we do, for example, on page 2,
3 line 7. This is with respect to the bond guarantee
4 program. We apply that to bonds issued before a date
5 certain. There is some issue as to whether or not this
6 date certain is the correct date, and there is some issues
7 with respect to bond refunding that have been undertaken
8 under previous attorneys general rulings that this was
9 based upon existing law.
10 So this will be considered tomorrow before the
11 capital investments committee. They also have legislation
12 which considers these same issues in their draft
13 legislation, but I felt that this committee needed to know
14 also what -- and to partake in that decision process, and
15 so that's the reason I bring them to you.
16 We also bring forward the mill levy supplement
17 program. We restrict it similar to the way we did the
18 bond guarantee program at page 24, line 4.
19 And then with respect to local bond issues, on
20 page 24, lines 1 through 19, this is just brought forward
21 to you for your thoughts.
22 For one thing, we restrict the local bond issue
23 to those measures that would be beyond statewide adequacy
24 for future bond issues, and then we also require a public
25 hearing as to any bond issue that would be undertaken in
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1 the future as to why that district felt it was necessary
2 to go beyond state adequacy levels. And that's just
3 something for the committee to debate or whether or not it
4 even wants to forward this on.
5 But essentially, one way or the other, I think
6 that the legislature must speak on the mill levy
7 supplement program and on the bond guarantee program. And
8 I wanted this committee to be part of that loop with the
9 understanding that the capital leasing committee will
10 review this also tomorrow and it might be something you
11 may want to forward or may want to let your thoughts be
12 known to that group.
13 COCHAIR SHIVLER: They're going to look at
14 this bill tomorrow?
15 MR. NELSON: They will not look at this
16 particular bill, but they will look at these provisions in
17 their bills that establish bonding at bigger levels and
18 under -- at a level sufficient to take care of future
19 state needs. But it will be presented to them also in
20 that format. They will not be presented with local
21 bonding, the amendments to 21-13-701.
22 COCHAIR SHIVLER: What's the committee's
23 pleasure on this?
24 SENATOR COE: Mr. Chairman, I think that
25 where the districts are going to go out there and maybe
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1 bond for enhancements over and above the standards that
2 were established -- and this is just an idea -- I would
3 like to see them hold at least two public hearings, a
4 minimum of at least two public hearings.
5 It says one in there and that's just my thought.
6 I think that makes sense. Going out there like they are
7 for what they're going out there, that they make an effort
8 to communicate a little bit better, and I would like to
9 see at least two public hearings.
10 COCHAIR SHIVLER: So on page 3, line 6,
11 would you like to change that to --
12 SENATOR COE: No, page 4, line 14.
13 COCHAIR SHIVLER: Okay.
14 Senator Massie.
15 SENATOR MASSIE: Thank you, Mr. Chairman.
16 There's a couple other issues that are tied to this that
17 probably are outside the purview of this committee, but
18 since we're talking about both committees' work, maybe it
19 is worth bringing up.
20 One is what are we going to do with existing
21 bonded indebtedness. This is an old issue that goes back
22 to the original committee of this nature and also the
23 legislature debated this as well.
24 That's tied to financing more than anything
25 else, I think, particularly the type of financing that we
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1 would propose if we're looking at some type of statewide
2 property tax or sales tax, electric generation tax. Then
3 those folks who live in districts that have existing
4 bonded indebtedness will not only be paying off their own
5 bonds, but they will also be paying the statewide levy
6 that everybody else in the state will be paying for the
7 new capital construction. So there's a double burden
8 there that needs to be examined.
9 Then the other issue, and right now it only
10 includes, I think, the Lander school district, are those
11 districts that have passed bonds after the Supreme Court
12 decision of February 23rd. I think Lander -- I know that
13 Lander passed a bond issue. Someone was telling me that
14 Buffalo is coming up here fairly soon.
15 And any school building work that's done as a
16 result of those bonds that pertain to the standards,
17 there's a question of who really should be paying for
18 that. Does the State need to step in and take over those
19 bonds for those districts who have passed those levies
20 after February 23rd? What are enhancements in those bond
21 issues? What are standards?
22 There's lots of questions, I think, attached to
23 it, but we're going to have to deal with it, because those
24 districts, at least Lander right now and Buffalo depending
25 on how they vote are sort of in legal limbo as a result of
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1 the Supreme Court decision.
2 COCHAIR SHIVLER: Dave.
3 MR. NELSON: One addition to what Senator
4 Massie said, and he's right, I think the State does need
5 clarification on that, the State department has requested
6 clarification from the Attorney General's Office on those
7 pipeline projects and how that October 2nd affects how we
8 proceed on those.
9 So I think we will as time goes on get some
10 clarification on whether or not bonding is required and
11 what the State's responsibility is and that sort of thing.
12 So that may help you down the road also.
13 COCHAIR SHIVLER: Didn't Mr. Hunkins say
14 that anything before the 2nd -- anything after the 2nd
15 would be -- wasn't that his opinion this morning, as I
16 recall?
17 MR. NELSON: Exactly. I think what
18 Mr. Hunkins presented to you was that a project that was
19 approved by the legislature before the October rehearing
20 decision would go under as envisioned, and that would
21 include the bonding requirement and those sorts of things.
22 And I think what he was saying, without -- with
23 the caveat that he wanted time to look at this more in
24 depth, but I think what he was saying was if -- that
25 approval would be something that didn't require additional
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1 revisiting and study as was required for some of the
2 pipeline projects.
3 So I think for some that means, you know -- for
4 some of those projects that means that they would be
5 subject to the old system and for some of those it would
6 not. But I think he did say that he wanted to take some
7 time and go into that in depth before he would say
8 anything certain. And the State department certainly has
9 requested that.
10 COCHAIR SHIVLER: Madam Cochair.
11 COCHAIR DEVIN: Mr. Cochair, I understand
12 I think what I'm hearing is this committee could, if there
13 was a consensus, make the changes President Coe suggested
14 on two hearings, but we could then just keep this bill on
15 the table without prejudice pending more information and
16 action of other committees if we are in belief these
17 issues need to be addressed, and then as information comes
18 in from our counsel and from the department's request from
19 the AG and so forth, we will be a little clearer if pieces
20 need to be added to this?
21 MR. NELSON: Madam Chairman, I think that
22 that's a strategy. Also, you can see what the other
23 committee does. They're certainly undertaking some of
24 these issues, too, so I think through coordination we will
25 get there.
185
1 COCHAIR DEVIN: Mr. Cochair, I guess I
2 would ask that we have a consensus on whether we will make
3 that change to two public hearings, and then following
4 that resolution, I would move that we just keep it on the
5 table without prejudice to get further information from
6 our future meeting.
7 COCHAIR SHIVLER: Is there any discussion
8 on changing it from one day to two days -- meetings? I'm
9 sorry.
10 REPRESENTATIVE BAKER: I would second
11 Senator Coe's amendment.
12 SENATOR CATHCART: Mr. Chairman, just a
13 question.
14 COCHAIR SHIVLER: Senator Cathcart.
15 SENATOR CATHCART: Question on the
16 amendment, there's also a public hearing on page 3. I
17 don't know if that's the same, page 3, line 6.
18 MR. NELSON: I agree. I think that would
19 need to be changed.
20 SENATOR CATHCART: That would need to be
21 changed to two also.
22 SENATOR COE: Mr. Chairman, on line 3 you
23 would have to insert at least two public hearings, page 3,
24 line 6.
25 COCHAIR SHIVLER: So we will just leave
186
1 this on the table.
2 Is there any more discussion on this bill?
3 At this point we will go ahead with the
4 treasurer's long awaited dissertation.
5 MS. LUMMIS: Mr. Chairman, I promise I
6 won't make it a dissertation. Am I the last thing on the
7 agenda?
8 I'm sure you're all tired, so I've tried to
9 consolidate what we're going to recommend to the Select
10 Capital Financing and Investments Committee tomorrow to a
11 one-pager. And what you risk when you do it as a
12 one-pager is that you miss a lot of things, so I will be
13 filling in a lot of blanks with my explanation.
14 First a little background, Mr. Chairman, and
15 Madam Chairman.
16 When the February 23rd school capital
17 construction decision came down, the State Loan and
18 Investment Board was aware it might be time for the State
19 to engage the services of a financial advisor, an
20 independent financial advisor to review some of the
21 funding options that might help solve the school capital
22 construction problem.
23 In addition, we asked the person that we hired,
24 who is Keith Curry with Public Financial Management -- we
25 asked him to look at an array of other capital financing
187
1 needs, not just schools, but the state, the university.
2 We asked him to meet with the Game & Fish about their
3 Wildlife Legacy Fund, the counties, the cities, and so he
4 saw a wide array of the state's wants and needs presented
5 to him when he was here in July.
6 As a result of those discussions, he put
7 together a fairly comprehensive package of ways to solve
8 capital financing issues, the most important of which, of
9 course, is schools. So let me tell you the objectives he
10 laid out as a result of the discussions that were had with
11 him in July.
12 The objectives were to reform school finance to
13 respond to the Court's mandate; to provide a funding
14 strategy to address Court-mandated school capital needs;
15 provide the state an adequate financing vehicle for state
16 capital needs; permit the State to initiate a major state
17 highway widening program; and create a vehicle for
18 aeronautical expansion.
19 And what he came up with was a plan that was
20 centered around school capital construction but had the
21 flexibility to work for other state capital construction
22 needs. The way that he envisions it, the State would need
23 to raise the fuel tax in order to take a commensurate
24 amount of federal mineral royalties to be used as a source
25 of capital construction, pay-as-you-go dollars and bonding
188
1 dollars.
2 The reason that you can't use tax dollars to
3 bond against is -- I think it is the Witzenberger
4 decision that was in about 1978 that prevents the State
5 from bonding against tax revenues without a vote of the
6 people.
7 So one method of doing it is not use taxes as
8 your source of potentially pledgeable revenues. That's
9 why he has raise -- recommended raising a tax, giving it
10 to DOT and then taking away federal mineral royalties
11 because federal mineral royalties are not a tax.
12 And the legislature would create the School
13 Financing Commission which you've been working on all day
14 that is roughly modelled after the Water Development
15 Commission and they would recommend school building
16 projects to the legislature, and they would recommend
17 whether to pay for them out of major maintenance or
18 whether new construction was needed.
19 And in that case, they would also recommend
20 whether the new construction should be funded out of
21 pay-as-you-go dollars or out of bonding. Then the
22 legislature has the final say. The legislature would
23 decide what to approve for major maintenance, what to
24 approve for capital construction, and the legislature
25 would decide whether to do it with pay-as-you-go dollars
189
1 or with bond proceeds.
2 Then under the bill as is going to be presented
3 to the committee tomorrow, the legislature would direct
4 the capital financing authority to issue the bonds for the
5 schools or to give certain of the coal bonus money that
6 they've been given for the schools, so all of the money is
7 always totally in the control of the legislature. The
8 legislature decides when to bond and when to pay as you go
9 or whether not to bond, whether to pay for it all as you
10 go.
11 The next step is the creation of the capital
12 financing authority which has pay-as-you-go dollars in the
13 form of the coal lease bonus payments and the federal
14 mineral royalties. So it is the 32 million in federal
15 mineral royalties that came over from DOT plus the coal
16 lease bonus payments that are currently going to your
17 school capital construction account.
18 The other thing they would have is revenue
19 bonding authority which is secured by state and federal
20 mineral royalties, so here I'm trying to point out the
21 federal mineral royalties could be used either for
22 pay-as-you-go dollars or to bond against, to pledge to pay
23 back the bonds.
24 Again, this would be totally spent pursuant to
25 legislative direction. And the advantage of having this
190
1 capital finance authority, I think, is severalfold. One
2 is you can bond or do pay as you go for school capital
3 construction, for other state capital construction and
4 even for University of Wyoming capital construction out of
5 the same pot of money.
6 The other point in there is that had the
7 governor wanted the DOT to be net money ahead in this
8 plan, not just even, so the -- under this proposal the
9 money -- the 32 million that would be taken from DOT and
10 given to this capital finance authority would be taken
11 over a four-year period, 25 percent at a time.
12 So at the end of the four years the Department
13 of Transportation is net $48 million under this scenario,
14 and in addition to that, they would receive authority to
15 issue GARVEE bonds, which are federal highway bonds, and
16 they could also bond for aeronautical projects if they
17 wanted to use the remaining 28 million in federal mineral
18 royalties that they would have.
19 That is an option, and the DOT would never have
20 to exercise it if they didn't want to. If they decided
21 they didn't like the concept of bonding, they could always
22 use those dollars as pay as you go. If they chose to
23 issue bonds against the federal gas taxes that come in,
24 they're normally payable back over a 7 to 15-year period.
25 If you're ready to build a highway, all the planning is
191
1 done and you're ready to go out, you don't have the money,
2 you can almost build it as cheaply by building it now,
3 avoid the inflation costs associated with waiting, if the
4 bonds, say, are payable back at like 4.25 percent, right
5 now bonds are at about 3.9, so it would be a really good
6 deal now as compared to inflation. But that can change
7 over time, so that's something the transportation
8 commission could assess at the time that their highways
9 are planned and they're ready to go.
10 As I said, we would increase the gas and diesel
11 fuel by 5 cents. This is with exemptions on so it raises
12 about 32 million, goes to transportation. We redirect
13 over a four-year period 32 million of DOT's 60 million in
14 federal mineral royalties, and that is used as the pot
15 that you can either bond or pay as you go for schools or
16 other state capital construction, including the
17 university.
18 One of the things that I learned at the -- for
19 the first time I went to the National Association of State
20 Treasurers annual meeting. It was on September 11th in
21 Santa Fe. And one of the things that state treasurers
22 were discussing in this big roundtable was that there are
23 many, many bond issuing entities within their states and
24 they can't keep track of who has pledged what revenues for
25 what bonds. And all of them said, "If you get a chance to
192
1 get control over bonding in your state under one entity,
2 do it," which is why the proposal for the capital
3 financing authority to be the bond issuer.
4 It is efficient because they would be issuing
5 bonds for schools, for the university, for other state
6 construction needs all at the direction of the
7 legislature. So there's tremendous flexibility associated
8 with this.
9 It would -- if you decided to authorize bonding
10 by that authority up to $708 million, you could -- it
11 would be responsive to the Supreme Court's decision.
12 Obviously that is the worst-case scenario. You're not
13 going to have to bond to the tune of $708 million. The
14 Court has said you'll get credit for payments already made
15 under that immediate needs category, and Mary has done the
16 research to determine about what that number is within a
17 range. So you're going to get credit for that.
18 And over time the legislature needs the
19 flexibility to be able to direct the funds either to major
20 maintenance or capital construction and to direct it
21 either to pay-as-you-go dollars or bonding.
22 But by having the total amount available to bond
23 against I think it is unassailable by the Supreme Court
24 unless you get down the road and the legislature gets off
25 track somehow and you get sued later. It keeps you in
193
1 control of what the legislature -- rather, the Supreme
2 Court has directed you to do.
3 That's the in-a-nutshell version of what the
4 committee is going to hear tomorrow. Thank you.
5 COCHAIR SHIVLER: Committee?
6 SENATOR COE: Everybody understands?
7 COCHAIR SHIVLER: Is it that clear?
8 SENATOR COE: Mr. Chairman, I might just
9 add that obviously when you start talking about bonding,
10 right now it is absolutely an incredible time to be doing
11 that because the rates are extremely low and you have that
12 ability to protect yourself in the future a little bit at
13 the rates you can place now. DOT gets to leverage against
14 that.
15 COCHAIR SHIVLER: So we would create a
16 School Financing Commission which would be in addition to
17 the commission to -- Capital Construction Commission, so
18 we would have two additional commissions now dealing with
19 school construction and school financing.
20 Would the setup be similar to -- I'm assuming it
21 would be a similar structure that we would have with the
22 Capital Construction Committee.
23 MS. LUMMIS: Mr. Chairman, this authority
24 would, as designed in the bill -- and of course the
25 committee can change it however -- it would abolish the
194
1 State Building Commission and it would take over their
2 functions, and it would take away the bonding authority of
3 the State Loan and Investment Board.
4 So essentially you're taking authority away from
5 the five elected officials and giving it to a commission
6 that is under the legislature's total direction, but they
7 would need some staff people to evaluate -- to help
8 evaluate when to bond and when to pay as you go. Or that
9 authority could be with another entity. The cost of
10 issuance of the bonds would just come out of the bond
11 proceeds.
12 COCHAIR SHIVLER: And there will be a
13 draft of that at tomorrow's meeting?
14 MS. LUMMIS: Yes, Mr. Chairman.
15 COCHAIR SHIVLER: So we will see that
16 outline tomorrow?
17 SENATOR CATHCART: Mr. Chairman.
18 COCHAIR SHIVLER: Senator Cathcart.
19 SENATOR CATHCART: I'm not quite clear on
20 why we would, let's say, use 5 cents fuel tax on gasoline.
21 You said that comes up to, let's say, 32 million, I think
22 you said. On the other hand, four mills statewide is 32
23 million. Why do we designate one specific tax to talk
24 about?
25 MS. LUMMIS: Mr. Chairman, you could go
195
1 with sales tax or property tax or whatever you choose, but
2 you can't bond against it. You would have to find some
3 replacement revenue. You would have to do the kind of
4 swap that we designed with the sales -- with the gas tax.
5 We chose gas.
6 Tax because we could take federal mineral
7 royalties which is a source of revenue against which you
8 can bond. You can't go directly with mill levies and bond
9 against them. But you could go with four mills, put it in
10 the general fund and then take a commensurate amount of
11 investment income that the state treasurer produces and
12 puts in the general fund -- you could take that and give
13 it to this financing entity.
14 SENATOR CATHCART: Thank you.
15 MS. LUMMIS: You've got all kinds of
16 options. This is just kind of a structure around which to
17 build whatever options you like best.
18 COCHAIR SHIVLER: Madam Cochair.
19 COCHAIR DEVIN: Just a couple clarifying
20 points. Senator Massie and I were just discussing where
21 you have the legislature creates the School Financing
22 Commission, basically that's the commission we were
23 talking about today, school capital construction
24 commission?
25 MS. LUMMIS: Yes.
196
1 COCHAIR DEVIN: So we probably want to
2 take financing out of it. We're calling it school capital
3 construction commission.
4 MR. NELSON: School facilities.
5 COCHAIR DEVIN: See, I don't have it right
6 either. School Facilities Commission. Start using the
7 right term so we don't confuse everybody.
8 Then 5 cents gas tax annually produces what
9 amount of money?
10 MS. LUMMIS: $32 million.
11 COCHAIR DEVIN: Annually. So I didn't
12 understand the quarterly taking it out over four years and
13 still ending up with just 32 million. I haven't run the
14 math on that, but in the end we take it out quarterly or
15 we take 32 million a year out?
16 MS. LUMMIS: You take 32 million a year
17 out, but over the first four years you would only take a
18 fourth of it, and then the next year you take a half of
19 it, and then the next year three-quarters, and then the
20 next year you take the full 32 million.
21 Not until the fourth year -- if you want to give
22 DOT some additional revenue out of this plan, you're
23 leaving some of the federal mineral royalties there over
24 the first four years, gradually decreasing the amount you
25 take -- gradually increasing the amount you take until in
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1 the fourth year you're taking the full 32 million.
2 REPRESENTATIVE BAKER: Mr. Chairman.
3 COCHAIR SHIVLER: Representative Baker.
4 REPRESENTATIVE BAKER: Mr. Chairman, I see
5 you're also designating -- pulling out the coal lease
6 bonus payments. Why? That's the major source of school
7 capital construction money today. Why would we take it
8 away from the place that we've now been court ordered to
9 spend?
10 MS. LUMMIS: Mr. Chairman, you would just
11 be taking it from this School Facilities Commission and
12 putting it in the capital financing entity, and you would
13 still direct how it is spent.
14 So if you direct that all of the coal bonus
15 payment money be spent for school capital construction, it
16 will be. But if you got in a year where there was some
17 extra money that could be used for -- extra coal bonus
18 money that could be used for College of Health Sciences at
19 the University of Wyoming or some state capital
20 construction project, you would have the discretion to do
21 that. But only you would have the discretion to do that.
22 No one other than the legislature can direct how that
23 money is spent.
24 COCHAIR SHIVLER: Senator Cathcart.
25 SENATOR CATHCART: Well, Mr. Chairman,
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1 just earlier we were talking about developing an earmarked
2 account that school capital construction could draw from
3 that would be a reliable account. So in this scenario it
4 wouldn't be a specifically earmarked account for school
5 cap con, and school cap con would be, let's say, competing
6 with highways and other interests for those dollars, would
7 that be correct?
8 MS. LUMMIS: Mr. Chairman, they could be
9 competing within the legislative system with the
10 university and the State, but there's no mandate from the
11 Supreme Court that you fund state or university capital
12 construction, so presumably school capital construction
13 would be the highest priority.
14 COCHAIR SHIVLER: Madam Cochair.
15 COCHAIR DEVIN: But, Mr. Cochair, to
16 follow up on that, Senator Cathcart said they would be
17 competing with highways and I think from what you're
18 describing, highways would be separate. They would be
19 separated out. Is that --
20 MS. LUMMIS: Yes, Madam Chair.
21 COCHAIR DEVIN: And they would have their
22 own separate GARVEE piece and so forth.
23 MS. LUMMIS: Correct, Madam Chairman. I
24 forgot to mention, the federal gas tax money never comes
25 through my office. We're not a pass-through agency that
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1 gets it to DOT. DOT gets it directly, and so in that
2 instance it would seem that the transportation commission
3 should decide whether or when to bond for highways because
4 their money is totally separate from all other money.
5 The other thing is it really should say up to 5
6 cents instead of 5 cents because just as of yesterday or
7 Friday, Mary, through an unbelievable amount of work, was
8 able to give you a range of how much of the immediate
9 needs have been spent.
10 Since we didn't have that information until just
11 recently, we're still using that 5 cent number because
12 that would fund the entire February 23rd decision of the
13 Supreme Court. But with these new numbers, now we can go
14 back and chart how much less gas tax it would take to fund
15 the new numbers or whatever other tax, if you wanted to go
16 with mills or whatever you choose.
17 SENATOR COE: Mr. Chairman.
18 COCHAIR SHIVLER: Senator Coe.
19 SENATOR COE: From the conference call the
20 other day, our needs for school cap con start low and then
21 accelerates as the debt requires. We go -- the debt
22 service as we project the bond issue out there accelerates
23 from like, what is it, 60 million the first year to 114
24 million or something for school cap con. I don't know if
25 you remember those numbers exactly.
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1 MS. LUMMIS: The debt service accelerates
2 from 12 million to 43 million, if you bonded for every
3 single penny of the school capital construction, and that
4 amounts to, I think, 98 million the first biennium, 144
5 million the second biennium and 111 million the third and
6 there out. That's if you bonded for every penny and if
7 you were paying for the entire February 23rd decision as
8 is.
9 MS. BYRNE: Mr. Chairman, did you need any
10 explanation on this chart I just handed out?
11 COCHAIR SHIVLER: Yes.
12 MS. BYRNE: The premise that Treasurer
13 Lummis and Keith Curry, the advisor, has been using is
14 that in the court decision what they said to spend was 563
15 million over six years. I believe it is as if we have not
16 spent any efforts towards capital construction for schools
17 since 1998 or 1997.
18 This review is preliminary, but I think it gets
19 kind of close to maybe more of a realistic picture. What
20 I went through is I sorted out the buildings according to
21 score, includes both education buildings, all other
22 buildings and puts them on this timeline as the Court
23 directed. That would be column A.
24 Column B shows those dollars brought up to 2001
25 dollars as the Court made an effort that we should look
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1 at.
2 From there, column C applies -- actually, what
3 it does is removing the need found in the MGT report, now
4 based on the 2001 dollars that we've remedied either
5 through capital construction grants -- but it is not a
6 dollar for dollar. Example, Lander High School, might
7 have been a $5 million repair in their report. Obviously
8 it didn't have the structural damage as they have found
9 since. We put $20 million towards that. I removed $5
10 million from this report figure. You can't add up to get
11 exactly what we spent, as the State spent on capital
12 construction for schools. That's column C.
13 Many of these buildings maybe also were disposed
14 of by the district. They're not used for schools or even
15 for district purposes. Those have been removed. A good
16 example also would be Afton, I believe. Over in Afton,
17 the Cokeville schools, there was a replacement building
18 that hadn't been opened yet. MGT reviewed the old
19 building. Maybe a few months later the new building was
20 being used. So that has been remedied.
21 It also will respond to the capacity issues.
22 Riverton is building a new middle school and the Lincoln
23 School District schools -- Cokeville, Star Valley,
24 Afton -- that he had original figures in the MGT report,
25 those have been removed because of the new buildings put
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1 in place.
2 If you go to column D, this assumes any
3 remaining need found in the MGT report has been perhaps
4 whittled away with major maintenance dollars. It makes
5 the assumption that major maintenance dollars apply to the
6 lowest scoring building.
7 That may not be the case in reality. We don't
8 have the data currently that would tell us what has been
9 removed from that first inventory that MGT provided. It
10 is also a snapshot, as you know, of 1997 findings. It
11 doesn't have anything to do with what we're looking at
12 right now on building conditions. But these other
13 options, columns C and D, may be another scenario that
14 Mr. Curry, Keith Curry, would be presenting. Get our
15 Currys straight.
16 So if you have any questions on this chart --
17 again, it is preliminary, but I think it gets you a little
18 bit closer to reality that you know you've put monies --
19 the State has put monies into school capital construction,
20 as has locals put money -- we had something happen in
21 Teton County in the high school, also in Campbell County
22 there's been efforts made up there on their own and the
23 State would not have seen that.
24 COCHAIR SHIVLER: Senator Massie.
25 SENATOR MASSIE: Thank you, Mr. Chairman.
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1 Mary, with regard to the major maintenance that
2 you applied in column D there, that was the major
3 maintenance that the State has paid between '97 and now?
4 MS. BYRNE: Mr. Chairman, Senator Massie,
5 there's a footnote down here. I think it says these are
6 expenditures through FY '02, so it even includes what we
7 have right now out there. It hasn't probably been spent,
8 per se, but it has been put out there. It also includes
9 pipeline 1, all the issues you're looking at for JC still.
10 SENATOR MASSIE: With that figure of 459
11 there in column D, over the next six years if we were to
12 pay the major maintenance using the formula of 2 percent
13 for the next six years, that 459, roughly 160 to 170
14 million would be major maintenance payments and the rest
15 of it would be capital construction payments.
16 MS. BYRNE: Mr. Chairman, Senator Massie,
17 I'm sorry, you mentioned if major maintenance factor was
18 at 2 percent?
19 SENATOR MASSIE: Which I think is what we
20 have in statute, we did 2 percent -- or is it 2 and a half
21 percent?
22 MR. NELSON: 2 and a half.
23 MS. BYRNE: 2 and a half for FY '02 and
24 then it goes to 3 percent the next year.
25 SENATOR MASSIE: So, in other words, the
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1 point I was getting at, that 459 million, quite a bit of
2 that are major maintenance payments which we've
3 essentially already committed to in statute and the
4 remaining balance is what we need to come up with with
5 regard to actual capital construction money as opposed to
6 major maintenance.
7 MS. BYRNE: I don't know. I'm not sure I
8 can answer that given the process you were looking at in
9 this current bill that you reviewed today. And the
10 bonding also may cover major maintenance is my
11 understanding.
12 MS. LUMMIS: That's correct.
13 MS. BYRNE: Is gathering monies from major
14 maintenance as well as other cap con assistance. So I'm
15 not certain how I could speculate.
16 REPRESENTATIVE BAKER: Mr. Chairman.
17 COCHAIR SHIVLER: Representative Baker.
18 REPRESENTATIVE BAKER: Mr. Chairman, Mary
19 as well, I presume that we would have to credit future
20 payments from major maintenance and then we would also
21 have to have additions for inflation as we go into the
22 future. Let's say if we wanted to come with some idea of
23 what we would need, and let's presume we would go with 2
24 and a half, sticking some 50, 60 million --
25 MS. BYRNE: 2 and a half percent derives
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1 about 38 million. That's what is supplied this year.
2 REPRESENTATIVE BAKER: So the law is 3 --
3 MS. BYRNE: Next year will be 3. That
4 brings you to over 40.
5 REPRESENTATIVE BAKER: That's about 40
6 million. So let's say you could deduct two years at 40,
7 would be around 380, but then you've got to inflate this
8 into the future and then, if you will, divide that out by
9 six years, the presumption that we would at least have to
10 allocate over six years the money to take this down, we're
11 looking at somewhere near $400 million after it is
12 inflated, divided by six is some $70 million a year.
13 MS. BYRNE: In some sort of major --
14 REPRESENTATIVE BAKER: In some sort of
15 major action, is that --
16 MS. BYRNE: I think you could rough that
17 out to cover six years.
18 REPRESENTATIVE BAKER: I would like to
19 have it rough. Is that reasonable?
20 MS. BYRNE: That would address just the
21 court amount they set out, no new problems.
22 REPRESENTATIVE BAKER: That's kind of what
23 Steve has been telling me as well, we have to figure about
24 70 million a year. That's a guess. That was just his
25 guess.
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1 COCHAIR SHIVLER: Any more questions of
2 the treasurer?
3 Thank you so much.
4 MS. LUMMIS: Thank you, Mr. Chairman.
5 COCHAIR SHIVLER: Appreciate your time.
6 We have to --
7 MR. NELSON: Mary is just distributing
8 some additional information.
9 MS. BYRNE: These are the profiles for
10 capital construction '01, '02, the biennium. It should
11 jibe with your CREG report.
12 MR. NELSON: And the last sheet is the
13 immediate needs list, the one I was referencing, and the
14 transition process that we will be looking at.
15 COCHAIR SHIVLER: Dave, I would like to
16 bring something up to the committee before we get into
17 this. We have run into a situation in Teton County, as
18 they did in Park County and as they will with Cody. About
19 a fifth of the state has some rather severe earthquake
20 problems, and we don't seem to have addressed these.
21 The reason I say we haven't addressed this -- I
22 wish I would have caught this before Dodds left. When MGT
23 did the assessment, I know they were asked to look at the
24 schools as far as how they come up to earthquake
25 standards, and they said that wasn't one of the criteria.
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1 So, as I say, about a fifth of the state, which
2 includes from Powell down through Cody, Teton County,
3 Sublette, Lincoln County, some of Fremont County, we have
4 what they consider 4, 5 and 6 which are the most severe
5 earthquake problems that can come up when you design your
6 schools or any other buildings. Since that isn't taken
7 into account, at some point we need to take this into
8 account.
9 We have some schools that are structurally
10 dangerous at this point. At this point MGT has said,
11 "This is not one of the criteria we're looking at," and as
12 a result they haven't looked at it.
13 I don't know at what point we bring this into
14 the mix, but I think as under capital construction I think
15 we certainly need to have that as one of the issues. As I
16 say, I wish I would have caught them before they left
17 because I would like them to address that at the next
18 meeting. Can you get in touch with them and have them do
19 that, please?
20 MR. NELSON: Sure, be happy to.
21 (Discussion held.)
22 COCHAIR SHIVLER: Is Bruce going to
23 present this?
24 MR. NELSON: Mr. Chairman, that is the new
25 immediate needs list that came out of the state
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1 department. It will be on notice and will -- it is that
2 part of the transition cycle that could be the third round
3 that would involve the commission and the state
4 superintendent working jointly with the districts trying
5 to provide some recommendations for remediation at the '03
6 general session.
7 COCHAIR SHIVLER: So this would be the
8 first set of projection, the commission's?
9 MR. NELSON: Yes. I mean it could be, you
10 know. But it is putting those buildings on notice, so to
11 speak. And that's in conformity with existing law. The
12 state superintendent is required to provide you that
13 information.
14 COCHAIR SHIVLER: And this is the new CREG
15 assessment, and I notice it was done after the price of
16 gas got down amazingly low so assuming this is reflecting
17 what is currently the gas --
18 REPRESENTATIVE BAKER: Put together less
19 than a week ago.
20 MS. BYRNE: Just a week ago.
21 COCHAIR SHIVLER: Well, do we need to
22 comment on this? Would anyone like to comment on this? I
23 think we just need to look through this.
24 I think most of us have been invited to the
25 meeting, I assume? Has everyone on this committee been
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1 invited?
2 MR. NELSON: It is an open meeting.
3 SENATOR COE: The meeting tomorrow is
4 Select Committee on Finance and Investments. Obviously
5 everyone is welcome to come to that, but the big meeting
6 is Thursday.
7 COCHAIR SHIVLER: I think most of us are
8 going to come to that, correct?
9 If there's no other business -- I think we need
10 to discuss our next meeting.
11 I think at this point, Dave, you set it up for
12 November 29th.
13 MR. NELSON: Very tentatively we put out a
14 target date and that's just to start from.
15 COCHAIR SHIVLER: I will be out of state.
16 That's the Thursday after Thanksgiving.
17 MR. NELSON: That won't work if you are
18 not going to be here.
19 COCHAIR SHIVLER: I think Irene will be
20 here. If I'm the only one -- I'm returning to the state
21 the 4th.
22 MR. NELSON: How about the first week in
23 December, how crowded is that for you?
24 COCHAIR DEVIN: That's NCSL.
25 SENATOR COE: And Energy Council in
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1 Santa Fe.
2 (Discussion held.)
3 COCHAIR SHIVLER: Does the 29th work for
4 everyone except me?
5 MR. NELSON: We could always schedule that
6 later. We could check on other stuff if you don't want
7 to.
8 COCHAIR DEVIN: Which dates are we -- in
9 December we have education meetings?
10 MR. NELSON: The 10th and the 11th.
11 COCHAIR DEVIN: 10th and 11th.
12 MR. NELSON: And Joint Appropriations will
13 have pipeline projects also that week, two days that week,
14 so that week is consumed.
15 COCHAIR SHIVLER: Let's tentatively do it
16 on the 29th. Irene will bring me up to snuff on it.
17 And you will send us a letter to that effect?
18 MR. NELSON: Yes.
19 COCHAIR SHIVLER: This was an excellent
20 meeting. Dave, again, we want to thank you for your
21 efforts on the bill you put together, and I certainly
22 think it is a good springboard, something we can start
23 from. It doesn't look like a lot of changes to it.
24 And we look forward to the meeting tomorrow or
25 certainly on Thursday. I'm going to stay around for the
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1 one tomorrow also.
2 I would like to thank our stenographer.
3 Thank Cynthia for being here, and thank all of
4 you folks for being here.
5 We're adjourned.
6 (Hearing proceedings concluded
7 4:10 p.m., October 23, 2001.)
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1 C E R T I F I C A T E
2
3 I, JANET DEW-HARRIS, a Registered Professional
4 Reporter, and Federal Certified Realtime Reporter, do
5 hereby certify that I reported by machine shorthand the
6 meeting proceedings contained herein, and that the
7 foregoing 211 pages constitute a full, true and correct
8 transcript.
9 Dated this 30th day of October, 2001.
10
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12 JANET DEW-HARRIS
Registered Professional Reporter
13 Federal Certified Realtime Reporter
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