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5 BEFORE THE WYOMING STATE LEGISLATURE
6 SELECT SUBCOMMITTE ON CAPITAL CONSTRUCTION AND FINANCE
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9 MANAGEMENT COUNCIL PROCEEDINGS
November 29, 2001
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1 P R O C E E D I N G S
2 (Hearing proceedings commenced
3 8:40 a.m., November 29, 2001.)
4 COCHAIR DEVIN: Thank you for being here
5 on this warming up morning, hopefully. And I'll call this
6 to order and my cochair will be doing the afternoon.
7 And we're going to start this morning with the
8 minutes of our October 23rd meeting, and those should have
9 been mailed to you.
10 Were there any corrections or additions that you
11 had to those October minutes?
12 Could I have a motion for their approval.
13 SENATOR MASSIE: So moved.
14 COCHAIR DEVIN: Second.
15 REPRESENTATIVE BAKER: Second.
16 COCHAIR DEVIN: Those in favor of
17 approving the minutes of October 23rd, aye.
18 That will get us warmed up.
19 Then we had an issue out there on -- that was
20 brought to us and has been of concern on the seismic
21 ratings, and we had changes in the -- by the USGS -- is
22 that correct -- in the national seismic mapping of the
23 United States which affected Wyoming, and brings some of
24 our schools, perhaps more than we had thought, under some
25 seismic issue questions.
3
1 And we are seeking a look at the research as to
2 how do we incorporate that issue in the consideration of
3 our school buildings.
4 So Dodds, are you going to do that report, then?
5 MR. CROMWELL: My understanding was that
6 we were concerned about the seismic ratings of our
7 buildings and how we could assess the level of concern
8 that we should have. And so we did some research, and
9 what we've come up with and would like to bring before
10 this committee for their consideration is a FEMA -- the
11 Federal Emergency Management Agency has established a
12 seismic screening methodology and procedure for buildings,
13 and it is a very established procedure, and I think it
14 would be a procedure that could be applied to school
15 buildings wherever there was a concern and answer
16 questions about the level of concern we should have.
17 I'll just basically give you an overview of the
18 methodology. It is called the rapid visual screening of
19 buildings for potential seismic hazards. And basically
20 they call it a sidewalk screening process. In other
21 words, it is a visual screening of buildings based on a
22 very structured format.
23 A building is first looked at for its structural
24 system type, whether it be a wood frame building or a
25 steel frame building. And they have about 10 or 12
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1 different types.
2 And then that type is then put into an
3 appropriate seismic zone, and that gives that building a
4 basic structural hazards score. So based on the
5 structural frame and the seismic zone that that building
6 is in, you get a score for that building, a structural
7 score for the building.
8 Then you modify that score based on some
9 observable things that one can see: Whether or not the
10 building is a high-rise, whether it is in poor condition,
11 whether or not it has what they call a soft story. In
12 other words, maybe you've seen commercial buildings where
13 it will be mostly solid all the way up but the bottom
14 floor will be mostly glass. They would call that a soft
15 story.
16 And then they also have what kind of soil the
17 building is built on.
18 So you modify that basic structural score by
19 what they call the performance modification factors, and
20 then you get a structural score for that building.
21 The scores usually range from 0 to 6, and they
22 recommend that any building scoring 2 or less is a
23 candidate for in-depth investigation to look at that
24 building, have a thorough investigation of that building
25 to see what remedies, if any, need to be addressed for
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1 that building.
2 Again, I would stress this is a very structured
3 process. It is something that probably could be done by a
4 professional architect or someone familiar with
5 construction. I would recommend that it be done by a
6 structural engineer. I think the outcomes would be more
7 consistent that way.
8 It is something you would do once for a
9 building. You would assess its hazards. You would
10 determine whether you need to investigate them further.
11 If you do, investigate them further, determine the remedy
12 and apply the remedy.
13 Typical building would take probably about four
14 hours to do. That would include some reserve work before
15 so -- there are things you can't see on the site, for
16 instance, soil types, age of the building, those kinds of
17 things. And then that would get you a write-up of the
18 report as well.
19 This is a process that could be done independent
20 of your condition assessments that are being done now or
21 it could be done in conjunction with them as far as timing
22 and sequencing.
23 You would probably focus on buildings that were
24 in a high-risk area, more likely on the western side of
25 the state. You could do some prescreening. In other
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1 words, buildings built after a certain date when you know
2 local codes were enforced that required seismic safeguards
3 were in place, probably wouldn't be necessary to screen
4 those buildings.
5 I think that, you know, in the tradition of not
6 trying to reinvent the wheel, this is an established
7 process that could serve the State very well and I think
8 could alleviate any concerns about unsafe buildings in
9 regard to seismic hazards.
10 Madam Chair.
11 COCHAIR DEVIN: When you talk about an
12 in-depth look for scores 2 or under, what does that
13 entail, then?
14 MR. CROMWELL: Typically that would
15 entail, Madam Chair, having a structural engineer visit
16 the building, do an analysis of exactly what are the
17 shortcomings from a seismic standpoint and recommending
18 remedies for those shortcomings.
19 So, you know, a lot of buildings, they just have
20 a poor -- poor connections between some of the vertical
21 and horizontal members and you might have to just add some
22 kind of strapping for the connection.
23 Other buildings, you might get in and find that
24 the building, all the load-bearing walls were cracking and
25 bowing out and you might say, gee, this building is
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1 totally unsafe and we need to demolish it. It could be a
2 range of remedies and that would be for that structural
3 engineer to come up with the recommendations that would be
4 appropriate for that particular building.
5 And then I guess the goal here is to get our
6 buildings to a point where in a significant seismic event
7 they would allow people to get out of the building without
8 being endangered. That's always, you know, the goal. The
9 building itself might end up being damaged, but at least
10 people can evacuate so we don't have any danger that's
11 life threatening.
12 COCHAIR DEVIN: Yes, Senator Cathcart.
13 SENATOR CATHCART: Madam Chair, when you
14 talk about in depth, now you're talking about structural
15 connections, I'm assuming you're talking column to beam
16 and bearing, all of that.
17 Do they do that like off of as-built plans or do
18 they literally tear into the connection and have an actual
19 look at the connections?
20 MR. CROMWELL: Madam Chair and Senator
21 Cathcart, they would do both. They would go in and look
22 at the drawings, if they existed. Depending on the age of
23 the building, you know, drawings can be somewhat
24 inaccurate. But then you can actually go in and
25 investigate the actual conditions of the building. So you
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1 would -- I would assume in some cases that would entail
2 some exploratory investigation where you might have to
3 pull away ceiling tiles or wall tiles or whatever.
4 COCHAIR DEVIN: Yes.
5 COCHAIR SHIVLER: Madam Chair, Dodds, I
6 think the major concern and one of the reasons we asked --
7 or I asked for this study is that when we did the
8 assessment of the schools it wasn't considered in some
9 areas. And I think the Uniform Building Code and also
10 some of the seismic groups have put together a map of the
11 United States that break this into different risk zones.
12 And some areas in the state of Wyoming are at
13 what they call a Level 3 risk, which is the second
14 highest, I guess. A portion of California is Level 3 and
15 Level 4 is as high as they go based on their figures.
16 The western part of Wyoming from about Afton
17 north all the way over to Cody and up into Powell is in
18 this 3 category. And our concern was that they did a
19 structural analysis -- not a structural analysis but a
20 structural look at these buildings, was that taken into
21 consideration? And at that point we were told, I think,
22 that that wasn't something we were looking at.
23 I think my concern and the folks that live in
24 these areas, their concern is that when we look at these
25 buildings and they're in this number 3 zone that that
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1 should be a consideration, because we've had some groups
2 come in now in our county, group of geologists, and they
3 said, you know, these buildings are going to fall down
4 tomorrow if there's an earthquake.
5 And as a result, everybody has panicked. They
6 panicked so much they tore down a perfectly good
7 18-year-old building. We certainly would like to get some
8 kind of information so that this doesn't happen and also
9 to have some kind of background or at least some kind of
10 appraisal of what are the concerns in this building.
11 As you say, you can do a basic four-hour
12 overview: We have a cracked wall here, this is a
13 prestress building, ties aren't sufficient or whatever,
14 and if in fact that needs to be done, and then come in
15 with a group and say, "This is what needs to be done. How
16 much does it cost?"
17 I'm very disappointed with this building now and
18 the whole town is disappointed, basically. It was a good
19 building.
20 At any rate, my concern when we asked this
21 question is when we did the study initially these weren't
22 taken into consideration, how do we get that done? I
23 mean, if it is a danger and it is a danger to the
24 children -- if it is in a seismic zone 3, I suspect it is
25 a danger, how do we get this appraisal done on the schools
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1 in this number 3 zone? How do we get this done? Do we
2 have to do it ourselves or --
3 MR. CROMWELL: Madam Chair, Representative
4 Shivler, I think you have several options of ways to get
5 it done. I mean, you could make it part of your condition
6 assessment that's going on now. You're correct that the
7 existing condition assessments do not do this in-depth
8 seismic evaluation.
9 Or you could have it done independently on a
10 schedule that you thought appropriate. Obviously it would
11 take some time to do, depending on the amount of -- the
12 number of people in a team that you sent out to do it.
13 I'm not sure --
14 COCHAIR DEVIN: I guess --
15 MR. CROMWELL: Maybe I'm missing the
16 point.
17 COCHAIR SHIVLER: I didn't ask the
18 question very clearly. I guess the way I should phrase
19 this, we don't want folks in the state going around and
20 tearing down schools because look, we didn't do a seismic
21 appraisal and we are in zone 3. My thought is a lot of
22 this could be done for a great deal less money; in other
23 words, we could retrofit them a lot cheaper than we could
24 build a new building, obviously.
25 So how do we get this into the mix? In other
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1 words, should we go back and reappraise those schools,
2 rather than having the districts come in and say, "This
3 school doesn't meet earthquake requirements. We need to
4 tear it down and build a new one," which is where we are
5 right now in Teton County and we don't need to be there in
6 Teton County, these schools can be retrofitted.
7 MR. CROMWELL: Madam Chair,
8 Representative, I certainly don't think that going in and
9 tearing down buildings because they don't meet current
10 seismic code is feasible.
11 COCHAIR SHIVLER: Nobody else in the
12 county did either, but the school board did. Our concern
13 is right now we're looking at the school, if you look at
14 photographs of the column connection, there's serious
15 problems. The concrete didn't cover the steel and that
16 type of thing. I think it could be fixed. But I think
17 some folks are using this as an excuse to tear the
18 building down and build a new one.
19 We need some type of process where we can say we
20 did look at this, we did do this four-hour appraisal and
21 we don't think the building is going to fall down tomorrow
22 if there's a 5.4 earthquake. And if you would like to go
23 a little further, I suppose the school board could hire
24 someone to do that. The next question is how is that
25 funded because this is where we are right now. Do you --
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1 do we fund that? I know that's not your problem, that's
2 ours.
3 COCHAIR DEVIN: We always get the easy
4 ones, don't we? Before you answer that, let me pose a
5 combination question to you and Mary Kay with the
6 department. I know we would have travel costs with this
7 piece and moving the professionals around, but what are we
8 looking at for the four hours to do the initial appraisal
9 on buildings which would be -- and I know that would be
10 ballparked estimate for you, but that would be one
11 question.
12 Second question, I guess, is to maybe in
13 conjunction then, Mary Kay, I would want to know is that
14 money in the department at this point in time or would you
15 need to have a sum added to do that? And does anyone have
16 an estimation if we -- what length of time it would take
17 and do we need to do -- certainly I guess my priority
18 would be to see classroom buildings first, but do you need
19 the same standard for classroom buildings that you do for
20 bus barns and storage buildings and et cetera?
21 So that's kind of -- I think that information,
22 if the two of you would have anything on that, would help
23 this committee with where we need to go.
24 MR. CROMWELL: Madam Chair, my consulting
25 engineering firm that helped me do this research -- did
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1 the research, they projected a four-hour per facility
2 study would cost about $650, so that's an hourly -- I
3 mean, you can figure out what the hourly rate is there.
4 COCHAIR SHIVLER: That would be plus
5 travel and lodging, obviously?
6 MR. CROMWELL: Yes, then you would have
7 expenses on top of that. My suggestion would be to -- in
8 order to get an order of magnitude, we could take a look
9 at the database, facilities database; identify educational
10 facilities that are in seismic zones that we were
11 concerned about and identify buildings that were built
12 before local codes were enforcing seismic design.
13 We could come up, then, with an estimate of the
14 number of buildings, where they were in some kind of
15 scheduling and some kind of expenses costing, and we could
16 come up with an order of magnitude or a budget for you to
17 get that accomplished.
18 I think we have in the facilities database the
19 data there to identify the buildings, I think, that would
20 be of concern. And I guess I would recommend that we
21 first target the buildings with high occupancies, so first
22 priority would be obviously schools and then we work
23 through maybe administration buildings and then work down
24 to the bus barns, if the statement shows a concern that
25 far.
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1 MS. HILL: Madam Chair, we do have a
2 process where we're evaluating a percentage. We go back
3 and reevaluate a percentage of the buildings in the state
4 each year, so it is worth knowing that the northern tier
5 has just been re-evaluated. So a visit has been made to
6 every one of the school buildings in the northern school
7 district.
8 So in order to cover, for example, all of the
9 school buildings in Powell, that would be an additional
10 visit that hadn't -- that wouldn't ordinarily occur for
11 another four years. So that would be an additional
12 expense. Other than that, this is something that could be
13 added to the ongoing regular re-evaluation of the building
14 each time it occurs.
15 We do have -- the department does have some
16 funds available through the emergency contingency fund
17 which are in the account now, $500,000 that has not been
18 expended yet this fiscal year. So if this committee were
19 to establish that as a priority, and perhaps go on the
20 record to ask that the department go back to those -- that
21 zone 3 area and working with MGT to establish which
22 buildings could be evaluated, I think that the
23 superintendent could get that done for you provided the
24 manpower is there. But I do think the resources would be
25 there. We would use them probably out of that emergency
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1 fund.
2 COCHAIR DEVIN: And then I guess I had one
3 follow-up question that occurs to me as the two of you
4 talk.
5 Would it be to the benefit of our total analysis
6 to have a cadre of one or two or three people doing this
7 analysis so that we got some expertise developed and some
8 consistency developed versus having a local piece here and
9 there or that type of approach? Do you have thoughts on
10 that?
11 MR. CROMWELL: Madam Chair, either
12 approach would take some training of the people who were
13 going to do the evaluations. We may be able to use local
14 engineers who are trained and versed in the process and so
15 the training would be minimal. If we use, say, a
16 structural -- one engineering firm as a contractor to the
17 State to field that, they can be trained and go out and do
18 that.
19 Or if you preferred, we could use local
20 structural engineers from the region and train them and
21 send them out. Logistically there's several ways to do
22 that.
23 COCHAIR SHIVLER: Madam Chair -- Madam
24 Cochair, Dodds, just looking at this, in looking at
25 section 3, there's not a lot in there. A good portion is
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1 Yellowstone Park, we have Teton County, Afton area goes
2 over to Powell, Cody, and possibly Thermopolis and
3 Worland. I mean, that's -- you can draw that line on a
4 small map you can't tell exactly where it goes. I think
5 we're looking at not a large number of schools.
6 I think the other issue, aren't there companies
7 in California that do this on a regular basis? That's
8 their job, isn't it? And I'm assuming that's the 650 you
9 gave us. I mean, that would be the hourly fee.
10 MR. CROMWELL: Madam Chair, I think we
11 could find a structural engineering firm that is ready to
12 go.
13 COCHAIR SHIVLER: If we could get the six
14 or eight schools done at one time and get it done,
15 anything after the fact should meet the code. And so
16 probably in the areas there's newer schools as you have
17 already said that have been built under the code that
18 wouldn't need to be appraised anyway.
19 I think that's something that could be done
20 fairly quickly, wouldn't cost that much money and would
21 alleviate a lot of fears of parents in that area. And it
22 is also -- I don't want to say excuse, but it is what some
23 of the districts are using as a reason to build a new
24 school. Maybe they do need a new one. The question right
25 now is do you or don't you, and we don't really have a
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1 firm answer on that.
2 COCHAIR DEVIN: Senator Anderson and then
3 Representative Baker.
4 SENATOR ANDERSON: Yes, having been in a
5 district outside the high-risk zone that experienced, I
6 think it was, 4.7 at that time, it might be wise if we set
7 up a mechanism where if you had that experience in your
8 school that you had access by local request, if somebody
9 could come in the next day to assess any post event.
10 As I recall, we had, you know, some cracks in
11 the veneer, books fell off the shelf, broken glass, but it
12 was business as usual the next day. That's been about ten
13 years ago. That building that we were in was a 1966
14 construction and I think stood pretty well.
15 But I think it would be valuable as we talk
16 about this to have perhaps and to request a local district
17 state expertise to come in shortly after the event and do
18 an assessment to see what has happened. Given the geology
19 of Wyoming, we certainly have the high-risk zone. This
20 was in central Wyoming, it was a powerful 4.7, and it was
21 pretty scary to me.
22 COCHAIR DEVIN: Mary Kay, would the issues
23 Senator Anderson brings up be an appropriate thing for the
24 emergency contingency fund to be used for?
25 MS. HILL: Madam Chair, that's precisely
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1 one of the purposes of that emergency fund, would be for
2 that analysis. It is triggered by the district requesting
3 that kind of assistance, but yes, ma'am.
4 COCHAIR DEVIN: And that was one of my
5 other questions to you. If this committee voiced that
6 they felt this was a significant issue to move on, then
7 could we trigger appropriately -- and this would be to
8 staff also -- can we appropriately legitimately within
9 current law trigger this to happen by those districts
10 being requested to make a request that they get this
11 evaluation and then that emergency contingency fund could
12 be used?
13 Representative Baker.
14 REPRESENTATIVE BAKER: Thank you,
15 Madam Chair. I have a question about -- I've been looking
16 through the districts that I presume are in the zone 3 and
17 I see, I think, 11 buildings in Teton 1. There's 12 here
18 in Sublette 1. There's -- you go to Park and you've got
19 probably -- there's three districts up there that each
20 would have anywhere from -- I would presume the Cody
21 school district would have 20 buildings, Powell would
22 probably be 15, something like that.
23 Are we talking about evaluating each of the
24 buildings and every building in this, or are we -- would
25 it be your recommendation to just take it down to
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1 classroom-type buildings or -- I mean, we've got bus barns
2 and garages and concession stands -- I mean, all kinds of
3 things like that. 650 apiece, you know, I see the score
4 going way up.
5 MR. CROMWELL: Madam Chair, certainly I
6 wouldn't recommend, you know, doing crow's nests and
7 concession stands. I would focus first on your
8 high-occupancy buildings, your school buildings, and then
9 take a look at where you are and then also maybe do a
10 preliminary scanning on support buildings to see if
11 there's some concern there, if you think you ought to go
12 further.
13 It is really a matter of a sense of urgency and
14 concern within the community and within the state as to
15 what level you want to go to. I mean, the manual -- the
16 manual indicates that the cutoff score that they talk
17 about where you trigger a more in-depth investigation is
18 something that should be established by community. And
19 you can -- they recommend the cutoff score of 2, but you
20 could set it at 3 and then you have a higher level of
21 safety but more cost associated with it.
22 So, you know, it is that same kind of discretion
23 that you want to use, I guess.
24 REPRESENTATIVE BAKER: Madam Chair, if I
25 may follow up, would the expectation be that these
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1 structural engineers would then propose remedies, or would
2 they just identify problems?
3 MR. CROMWELL: Madam Chair, it is a
4 two-part process. First you do the screening and say,
5 "This building and this building need further
6 investigation. They look suspect." And then you do the
7 in-depth analysis where you say, "Here's exactly what is
8 lacking. Here is exactly what needs to be done. Here's a
9 cost estimate." It depends how far you want to take that
10 but you could even have bid documents and have the work
11 contracted out.
12 COCHAIR DEVIN: Yes, Representative
13 Simpson.
14 REPRESENTATIVE SIMPSON: Madam Chair, on
15 the condition assessment, we were given a copy of that
16 scoring sheet that looked like this, I think. And I don't
17 know how you can do a condition assessment of a building
18 without analyzing the structural ability of the building
19 to withhold -- withstand an earthquake when we live within
20 a hundred miles of Yellowstone Park. If that's not built
21 into the assessment scoring right now, it should have been
22 and it should be immediately. And if it is not in this
23 software program, then the software needs to be amended so
24 it is, because it is ridiculous that it isn't, in my
25 opinion. I mean, in Cody we have built our schools to
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1 withstand earthquakes because we live within 50 miles of
2 the park.
3 So I'm uncertain whether it is being assessed
4 currently. I think I understand that it is not. And how
5 do we assess -- if it isn't, how do we assess those that
6 Representative Shivler is talking about? I don't know how
7 it was done in Cody or what structural company they used,
8 but certainly there's some expertise that's worked in
9 Wyoming in these areas and I'm sure in Jackson, too, where
10 we could have some quick analysis done. I know the high
11 school, the new middle school, the elementary school in
12 Cody are probably all built to an earthquake standard.
13 So we may not need assessment of those or it may
14 be very cursory. But certainly it doesn't seem to be too
15 burdensome an idea to at least look at classrooms.
16 I would like to see something specific about how
17 the assessment would be changed or enhanced to address the
18 seismic possibilities.
19 COCHAIR DEVIN: Do you wish to comment how
20 the assessment would be changed, because it is not a part
21 of what we required now of the people doing this
22 assessment, as I understand it originally. So would it
23 simply be changed to look at different forces on those
24 same structures?
25 MR. CROMWELL: Madam Chair, off the top of
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1 my head, if the legislature wanted a seismic analysis done
2 in the condition assessment process, I would propose
3 probably something of a targeted analysis that we --
4 seismic analysis of buildings that were in high-risk areas
5 and buildings probably that were not built within the last
6 X amount of years that we know have been built according
7 to codes that have seismic regulations in them. And that
8 could be built into the condition assessment.
9 It -- the exact logistics of whether or not it
10 would be built into the software, whether it would be kind
11 of an additional assessment that was done on particular
12 buildings, I would have to think through that. We could
13 certainly work that out to the satisfaction of the
14 committee.
15 COCHAIR DEVIN: Well, then, now I guess,
16 Dave, this would be a question to you: As I see this
17 committee's options at this point in time are our first
18 option would be to come to an agreement of whether we feel
19 this is significant enough that we ask the department to
20 go ahead and contact those schools in zone 3 area and
21 indicate that they may request seismic evaluation under
22 the emergency contingency fund procedure.
23 That's option 1 that we have at this point to
24 immediately address it since there is money in there; is
25 that correct?
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1 MR. NELSON: That's correct.
2 COCHAIR DEVIN: And then do we need to
3 somewhere in this bill -- would we need to actually
4 provide authorization that the department and direction
5 that the department develop the appropriate rules and
6 regulations and procedures to do seismic evaluation in
7 that zone in those areas that are relevant on buildings in
8 their future ongoing assessment piece, if that becomes a
9 part of our database in those areas? Do we need to do
10 that direction or is that already an authorized piece?
11 MR. NELSON: I would suggest, Madam Chair,
12 that you do put some language in there because we do kind
13 of put the parameters on what the assessment is to
14 constitute. And as we found out, past assessments didn't
15 include that in there, so it wouldn't hurt to specifically
16 include that. And you can be as specific as you wanted,
17 you know.
18 COCHAIR DEVIN: That should go in our big
19 bill.
20 MR. NELSON: In the big bill where we talk
21 about the assessment and the immediate could be handled
22 through the emergency contingency account.
23 COCHAIR DEVIN: Well, then, committee, I
24 guess our first decision is to -- and it would just
25 primarily be a consensus or lack of consensus, as we wish,
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1 that the department proceed to get us the data on
2 particularly the high-occupancy school buildings.
3 And I guess I would see priorities as
4 high-occupancy classroom-type school buildings and those
5 built not solely limited to but those built after --
6 particularly focus most immediate on those built prior to
7 the building codes being in place to address this.
8 Is there discussion on that?
9 Cochair Shivler.
10 COCHAIR SHIVLER: Colin brought out a good
11 point, in Teton County as an example, we basically have
12 five high-occupancy buildings -- our three grammar schools
13 and our high school and our middle school -- and three of
14 these are new so that's not an issue.
15 We've recently moved the kindergarten into
16 temporary facilities, you know, the mobile units out of
17 one of the facilities, so basically what we're looking at
18 now is two grammar schools of which I think one has been
19 established to be sound.
20 So basically what you're looking at is one
21 building, and that's in this district and I think you're
22 going to find that in almost every district. You're not
23 going to be looking at every building in the district.
24 You will probably be looking at two or three that could be
25 considered to be a serious problem.
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1 And as I brought out earlier, we certainly don't
2 want to be doing bus barns and concession stands. The
3 concern of the community is they don't want the building
4 falling on our children. And maybe we should include the
5 administration in that.
6 So, at any rate, I think that those are
7 important areas and I think we can certainly structure
8 something to identify that in the bill.
9 COCHAIR DEVIN: Senator Massie.
10 SENATOR MASSIE: Perhaps we should include
11 in that survey really any building that normally has
12 humans or people working. In the bill it could even be a
13 construction or workshop that normally has somebody
14 working in there. I would hate to bypass a building in
15 which an earthquake occurred, we could have prevented
16 someone from being killed or injured as part of their
17 normally working for the school district.
18 And also, do we have statewide codes with regard
19 to buildings to where we could say, you know, after a
20 certain date these buildings we can be pretty safely
21 assured are -- were built to withstand earthquakes or is
22 this more of a local decision in which even something
23 that's been built recently may not have taken that into
24 account?
25 COCHAIR DEVIN: Can you give us any
26
1 assistance on those code issues? I know there's been a
2 lot of work on this uniform building codes and different
3 communities have paid serious attention to it in terms of
4 if they are in an earthquake zone, but if you could give
5 us any assistance on that.
6 MR. CROMWELL: Madam Chair, I can't give
7 you an authoritative answer, but I believe the state as a
8 whole is under the Uniform Building Code. I don't know
9 when that happened and local jurisdictions do have the
10 ability to adopt codes in part or modify them, but we can
11 do some research and find out. We can certainly pinpoint
12 a date, especially in the areas we're concerned about.
13 COCHAIR DEVIN: So the more immediate
14 problem that we have, which would be kind of our
15 priorities of classrooms, high occupancy and then human --
16 where people are usually working, between your ability to
17 get the consult of your expertise and your department, to
18 get those pieces underway in the area that has already
19 been assessed as being in this high-risk zone, could you
20 with this committee's request proceed on that prior to
21 this bill actually having to have passed with the
22 emergency funds?
23 MS. HILL: Madam Chair, I think we could,
24 provided my understanding is this is the committee's
25 priority in terms of the use of those emergency funds.
27
1 When the department is questioned on the use of funds, it
2 generally comes from the legislature. So given that
3 cover, I believe we could move forward fairly quickly to
4 get that done as soon as possible.
5 MR. NELSON: I could draft a letter under
6 your signature, the cochair's signature, requesting that.
7 COCHAIR DEVIN: And so coming back, I
8 guess I would like a little firmer feeling from the
9 committee on what your sentiments are, whether we proceed
10 on the schools in this area with that emergency money, or,
11 you know, I would see we have that option, and also doing
12 the amendment so it is part of future assessment in those
13 as schools go forward, but we would have our high-risk
14 area covered.
15 Or the second option -- and there may be many
16 more out there. A second option would be that we simply
17 put that in the bill piece and do not act on it prior to
18 this becoming effective.
19 So I would like a little thought from the
20 committee.
21 Go ahead, and then Representative Baker.
22 COCHAIR SHIVLER: Is this bill where we
23 address what's -- the appraisals? That's a separate bill,
24 isn't it? That's a different bill.
25 COCHAIR DEVIN: Actually, there's a
28
1 short-term solution and a long-term solution if you wish
2 to consider it. Short-term would be to use the emergency
3 money and get moving on it without a bill. Long term
4 would be that we get it in the statutes with the proper
5 authorization and direction to the department to get it
6 into the assessment piece.
7 COCHAIR SHIVLER: My suggestion is that we
8 do both. I mean, we obviously need to get it in the
9 statute, and there's some concern now in some areas that
10 they say they have immediate problem and would like to get
11 it taken care of.
12 But my answer -- my question originally was
13 rather than put it in this new bill, how have we
14 established what or when the assessments are done? That's
15 not in this bill.
16 MR. NELSON: Madam Chair.
17 COCHAIR DEVIN: Yes, Dave.
18 MR. NELSON: What we've done is carried
19 forward the current needs assessment in this bill that's
20 being done by the state department.
21 COCHAIR SHIVLER: So it would be in this
22 bill?
23 MR. NELSON: It is in this bill and the
24 commission takes it up and continues it.
25 COCHAIR DEVIN: Representative Baker.
29
1 REPRESENTATIVE BAKER: I guess I need to
2 back up a little bit further and talk about these seismic
3 zones.
4 How closely defined are they? Are they as
5 generic as a map that I'm glancing through that
6 Mr. Cochair has over here, or are they as specific as to,
7 if you will, a section and a quarter corner? In other
8 words, do we know which buildings are on which side of
9 which district or is it kind of a proximity to a risk
10 area?
11 COCHAIR DEVIN: Mr. Cromwell.
12 MR. CROMWELL: Madam Chair, there is a
13 specific line drawn. What you will find, though, is
14 structural engineers will often err on the side of safety.
15 So if they're right on the edge of a zone 2 with a zone 3,
16 they will design for zone 3.
17 And that's exactly what is done in Lander.
18 Lander, the new school there, they were designing for zone
19 3 although they weren't in it because they were awfully
20 close.
21 So, I mean, one of the maps in this manual
22 follows county lines so, you know -- and, you know,
23 naturally occurring things like this don't follow
24 political boundaries. So there is some discretion to be
25 used there and engineers typically err -- always err on
30
1 the side of safety.
2 COCHAIR DEVIN: God didn't consult us, did
3 he?
4 REPRESENTATIVE BAKER: That brings up the
5 question, how soft is this line? You know, okay, 50 miles
6 from Yellowstone Park is okay, but 80 -- you know, how far
7 can we keep pushing this across -- as people err on the
8 side of safety, how far do you go before you've lost your
9 perspective, if you will?
10 MR. CROMWELL: Madam Chair, I would rely
11 on professional expertise to make those judgments and
12 to -- short of doing the whole state, allow the
13 professional structural engineers to identify the areas
14 that should be of concern and that would -- there
15 obviously would be some deviation from that line.
16 COCHAIR DEVIN: Senator Anderson.
17 SENATOR ANDERSON: Thank you, Madam Chair.
18 I think the point has already been made, but I think what
19 I see is within this area 3, that that's a zone that
20 indicates not only high intensity but high incidence. But
21 I think we need to maintain a certain amount of awareness
22 that outside of that zone in the other part of the state
23 awareness that we may not have the number of incidents,
24 but we still have the potential for the intensity. And
25 one incident is all it takes.
31
1 I think that was the point of the experience I
2 had. We didn't have regular earthquakes in all of the 30
3 years I taught, one earthquake, but that was a 5 and it
4 was outside the zone. We need to at least be aware that
5 that zone is moving.
6 COCHAIR DEVIN: Yes.
7 COCHAIR SHIVLER: Madam Chair, Mike, to
8 answer your question, there's a group called Seismic
9 Design of Building Structures that's put together -- it is
10 a California group, obviously, because they have the
11 biggest problem in the United States, but incidentally,
12 the two largest earthquakes in our history, one has been
13 in Missouri and the other is Charleston, South Carolina.
14 They don't have a very high incidence.
15 They have put together specific maps of
16 California and the West, and this is what the UBC bases
17 their map on. Those are defined. They'll give you a
18 larger map, fault lines, soil types. There's all kinds of
19 criteria for it. But we could determine which one we
20 wanted to use, I suspect, probably the one the UBC uses --
21 what's the new building code -- International Building
22 Code, whatever it will use and require that when buildings
23 are built in the state -- Senator Anderson was saying -- I
24 think yours would be a seismic 2. That still requires
25 some pretty stiff structural requirements. They don't
32
1 just forget about it at that point.
2 So every building built in the state would meet
3 the criteria, whether it be a 3, 2 or 1. We could adopt
4 their maps and their criteria, which we will anyway. I'm
5 sure this committee is going to do that.
6 COCHAIR DEVIN: Yes, Senator Massie.
7 SENATOR MASSIE: Madam Chair, I'm
8 comfortable with the plan you outlined. I think for the
9 emergency purposes if we were to stick with the zone 2 for
10 right now but then what we put into the bill permanently
11 would defer to the professionals to determine when to
12 apply the seismic study throughout the state of Wyoming.
13 COCHAIR DEVIN: Further discussion on the
14 committee about this committee giving a letter of
15 direction to the department to proceed in that zone 3 on
16 the high-occupancy buildings that -- to get us the seismic
17 evaluation on them and that they consider using at the
18 request of the district some of the emergency money to
19 proceed on that? Is there --
20 REPRESENTATIVE SIMPSON: So moved.
21 REPRESENTATIVE BAKER: Second.
22 COCHAIR DEVIN: There's a move and second.
23 Any further discussion?
24 All of those in favor, aye.
25 Opposed.
33
1 Okay, thank you. Then that -- we'll draft the
2 letter, then, if we can, to kind of outline the discussion
3 here on how to proceed with some of that.
4 Any further questions or discussion on that
5 seismic issue prior to our getting -- we will look at it
6 in the bill on the needs assessment piece, but before we
7 move to that bill is there any further discussion?
8 Okay. Then let's start on this bill. It is our
9 third draft of 159, and our staff was good enough to place
10 in bold the changes that we asked to have made. I thought
11 in reading it I saw that -- I won't remember where all of
12 these suggestions came from, but I thought there was some
13 good pieces that were coming together.
14 We also have some -- we've continually tried to
15 identify have we got gaps, have we got problems that are
16 coming to us, and we've got some amendments that -- some
17 that were requests and some that we've identified as some
18 gaps in there that we need to be clearer on.
19 And in addition, I think we've got the piece
20 that we probably don't have anything drafted on in terms
21 of getting the seismic issues into this needs assessment.
22 So I think with that, if you're comfortable, we
23 will proceed. We got pretty familiar with this bill last
24 time, but we made some changes, and those are in bold.
25 Dave, would you like to go through the changes
34
1 that you put in here and is it -- I wonder if that would
2 be most appropriate and then we go back and consider
3 amendments after that. So we won't say, you know, one
4 time through the bill and that's a wash. We will come
5 back and see where amendments fit, then, that we have not
6 put in.
7 Let's take a look at the changes we did last
8 time.
9 MR. NELSON: Madam Chair, beginning on
10 page 2, we did some clarification, rewriting on lines 14
11 through 16. I think the intent was just to make it clear
12 that the proposed commission, appointments would be based
13 upon one representative from each of the indicated areas
14 of expertise, and that was my attempt to kind of clarify
15 that language.
16 The second change to the board composition were
17 on paragraphs 1 and 2 where we took out a particular
18 school building sort of expertise and broadened it to just
19 building expertise. We felt that that may narrow the
20 scope too much, so that's pretty much the changes on page
21 2.
22 The next set of changes, go to page 4,
23 subsection E, lines 7 through 13, we simply raised the
24 level of compensation. $50 was the current amounts that
25 were prescribed for the Water Development Commission.
35
1 That was increased to $125.
2 The next change, if you go to page 6, paragraph
3 7, this is language that is intending to clarify -- this
4 is a very important provision here. This is speaking
5 about the agreements between the state through the
6 commission and the local districts when they undertake a
7 specific project. I think the intent was to clarify a
8 little bit on line 10, just clarifying language, as well
9 as line 15.
10 The language on line 16 through line 19 was to
11 kind of limit the State's liability in a respect and -- as
12 worded there, that the State would not be liable for
13 meeting time schedules and that sort of thing in the
14 construction contract.
15 The next change is over on paragraph 8, and
16 again, this is clarifying language. And what this is
17 talking about is the review of local enhancements and how
18 that impacts state criteria. And again, the best way to
19 describe that is clarifying language. I think the intent
20 remains the same, it is just trying to clarify that and be
21 more specific.
22 The next change on lines 10 through 16 is an
23 important one, and this was a very good point that was
24 brought out by the committee last time, to make specific
25 provision for disposal and demolition of buildings as they
36
1 relate to us proceeding with the school capital
2 construction process.
3 And the approach I did was to require the
4 commission to develop a process that would, first of all,
5 determine surplus buildings, at what point a building
6 would be considered surplus and kind of on that list, and
7 then next of all to determine how to and at what time to
8 demolish that building or otherwise dispose of that
9 building and to also prescribe a process to treat the
10 costs of disposition and demolition as well as any
11 revenues that may come in.
12 For example, if a piece of land is to be sold on
13 which a demolished building sits, how do we treat that
14 revenue? And that would be something that they could work
15 out on a case-by-case basis.
16 And there's a corresponding amendment that deals
17 with this same issue back under the local district
18 planning process, and that goes to page -- let me look at
19 it real quickly here -- it is under that -- it is on page
20 14, lines 5 through 9, which requires the local planning
21 process, when they're assembling their five-year facility
22 plans, they also consider the demolition and disposition
23 of buildings and recommend a process for that.
24 So this would be kind of hitting it twice in
25 there, both on the local district level and on the
37
1 commission level.
2 COCHAIR DEVIN: So when the local district
3 comes with a plan, they address that issue and then
4 there's an ability to work it out with this language on a
5 case-by-case basis with the commission.
6 MR. NELSON: At the state level.
7 COCHAIR DEVIN: But the cost of that is
8 considered when you come forward with that plan and in an
9 action that would occur.
10 MR. NELSON: Exactly. We have specific
11 language that says that that shall be considered a part of
12 a construction or renovation project, part of that cost
13 when they assemble their package.
14 SENATOR ANDERSON: Thank you, Madam Chair.
15 This was a concern of mine. Like I say, I think staff has
16 done very well with that.
17 COCHAIR DEVIN: Yes, Representative
18 Simpson.
19 REPRESENTATIVE SIMPSON: Madam Chair, can
20 we address potential amendments to that now, or do you
21 want to come back to that?
22 COCHAIR DEVIN: Well, as we have -- I
23 guess as we address these changes let's discuss if the
24 committee has changes to these. As far as additional
25 amendments, let's take them at the end.
38
1 REPRESENTATIVE SIMPSON: Madam Chair, my
2 comment is -- I can't remember where I read this but it
3 was just recently about a school district that had a
4 couple surplus schools, one they sold -- they were both
5 mothballed. One was sold. And it had to do with
6 fluctuating student enrollments. And I think they may
7 have disposed of both of them and had to then build a new
8 school.
9 This language is a little limiting to
10 disposition and demolition, while we ought to include
11 rental. The district may want to rent it to a private
12 entity, public entity, some other use or nonuse rather
13 than just a disposition of it, which I take to mean a sale
14 or transfer or demolition. I think there are other uses
15 that ought to be included in there or just the flexibility
16 given to the district.
17 COCHAIR DEVIN: Have we got that
18 flexibility? We were trying to seek a case by case
19 because there certainly -- thinking about certain larger
20 towns or cities, sometimes that property actually has
21 commercial value and a sale makes sense. In other places
22 it sits at the end of a road and there's probably not high
23 use for it.
24 So it is tough to address that on anything but a
25 case-by-case basis. When we use the term "disposition,"
39
1 what latitude does that give us?
2 MR. NELSON: I don't think clarifying the
3 term "disposition" does any harm to the amendment. I
4 think that was kind of the thinking, dispose of it one
5 method or the other, and I don't believe -- even if they
6 do lease it or rent it, you know, certainly that would
7 cover the costs of maintaining that building. I would
8 think -- it fed into my thinking of disposition. There's
9 an expert here. Does he have any comments on that? To me
10 it just clarifies the language.
11 COCHAIR DEVIN: So if we added other uses,
12 it would indicate other uses could be agreed upon, and I
13 think that is important, that it be agreed upon that it
14 fits the overall plan.
15 MR. NELSON: The commission would have to
16 approve that. They would be your ultimate decision maker.
17 COCHAIR DEVIN: Representative Baker.
18 REPRESENTATIVE BAKER: I see
19 Representative Simpson's concern here. I was just
20 wondering if the wording on line 11, at the end of that
21 line, "disposition and/or demolition" instead of just
22 "disposition and demolition," "and/or," or maybe just the
23 word "or."
24 COCHAIR DEVIN: Representative Simpson.
25 REPRESENTATIVE SIMPSON: Madam Chair, I
40
1 would suggest on line 11, before the word "disposition,"
2 simply adding the words "use, lease" and then it would
3 read "disposition" and strike "and" and replace it with
4 "or." I don't know how you dispose -- I guess you can
5 dispose and demolish. And/or, but I don't think we like
6 to use and/or in statutory language.
7 REPRESENTATIVE BAKER: That's true.
8 REPRESENTATIVE SIMPSON: So disposition
9 and demolition. I guess the amendment I would propose
10 would be on line 11, of surplus buildings and facilities
11 and the use, lease, disposition, so just use, lease.
12 COCHAIR DEVIN: And then or instead of
13 "and" --
14 REPRESENTATIVE SIMPSON: No, I think leave
15 it as "and."
16 COCHAIR DEVIN: Is there a second to that?
17 SENATOR MASSIE: Second.
18 REPRESENTATIVE BAKER: Second.
19 COCHAIR DEVIN: Okay. There's a motion
20 and a second.
21 Is there any further discussion?
22 MR. NELSON: Could I have that repeated,
23 Madam Chair? I missed that.
24 COCHAIR DEVIN: Representative Simpson.
25 REPRESENTATIVE SIMPSON: Madam Chair,
41
1 before the word "disposition" on line 11 add "use, lease."
2 And, Madam Chair, that same concern would also apply to
3 lines 14 through 16. I think on line 14 before the word
4 "demolition," and I would offer this as an amendment to
5 the amendment, but add in "use, lease, disposition and..."
6 COCHAIR SHIVLER: Madam Chair, I'm not --
7 Colin, I'm not sure that, you know, if we're in the
8 position of building a new building or whatever, that
9 could be construed to say, yeah, you have to fix it up so
10 you can lease it. That would be part of the construction
11 costs.
12 REPRESENTATIVE SIMPSON: Madam Chair, I'll
13 just withdraw that amendment and maybe we can just vote on
14 the first portion of that.
15 COCHAIR DEVIN: Let's do that.
16 MR. NELSON: Can I repeat it? I thought
17 that we struck "and" and put "or." We didn't do that?
18 REPRESENTATIVE SIMPSON: No.
19 MR. NELSON: Leave "and" there. I got it
20 now. Sorry.
21 COCHAIR DEVIN: And, staff, I understood
22 you to say that you believe that that would add some
23 clarity and does no harm to the intent of what we're
24 trying to do.
25 MR. NELSON: Right.
42
1 COCHAIR DEVIN: With that explanation, all
2 of those in favor, aye.
3 Opposed?
4 That amendment carries.
5 REPRESENTATIVE SIMPSON: Madam Chair, to
6 address Representative Shivler's concern there, the way I
7 read the language in 14 through 16 is that I believe it is
8 the cost of the demolition has to be considered a portion
9 of any construction or renovation project or maybe the
10 effect of the demolition of a building or facility.
11 If you're wanting to replace a building, a
12 surplus building with another one, and you're leasing a
13 surplus building, I don't know why you wouldn't consider
14 the lease or use of that building or facility in
15 consideration of a construction or renovation project. I
16 think that all of those factors ought to be considered.
17 I'm not sure I understand the language as written right
18 now.
19 MR. NELSON: Madam Chair, maybe to add a
20 little light on this discussion, generally now and when a
21 district submits a proposed project, that cost of
22 demolition generally is built in there, and it is a cost,
23 whereas it may cost you 300,000 to go out and demolish the
24 old building and you are replacing it with the new
25 building.
43
1 I'm not quite sure that if you're going to
2 mothball it and use it and all of that is part of the
3 actual cap con project -- that was the thinking of this
4 last sentence, was to make sure that we included any
5 proposed remedy that would involve a demolition as that
6 cost of that project.
7 COCHAIR DEVIN: And so now --
8 MR. NELSON: I'm not sure you can say the
9 same thing for mothballing it and leasing it. I mean, you
10 certainly have maintenance costs and they will get major
11 maintenance payments, and you're going to have to work
12 that sort of thing out. But again, that's going to have
13 to be probably on a situation-by-situation basis.
14 But if you want to -- I guess what I'm hearing
15 is that you want this to be considered in any remedy.
16 Maybe we would add another sentence and not make it part
17 of the project costs but say when you're reviewing the
18 remedies, please consider this, this, this and this or
19 something. I think we're kind of mixing two things there.
20 COCHAIR DEVIN: So now when a district
21 does a building project, under the old system if you're
22 going to demolish that building, they had to consider the
23 demolition costs, and this provides a way that the
24 demolition costs can be -- in the new system can be
25 considered, is that what I hear you saying?
44
1 MR. NELSON: Right, Madam Chair. For
2 example, if district X is coming to the State for
3 replacement of a high school building, they would give you
4 the construction costs of that project, so on and so
5 forth, and a part of the costs of that project would be to
6 rip down the old building, if that was the solution. And
7 that's what this is trying to say.
8 COCHAIR DEVIN: So if demolition is the
9 solution, we're saying put it as a part of the cost of the
10 process.
11 MR. NELSON: Yes.
12 COCHAIR DEVIN: Representative Baker.
13 REPRESENTATIVE BAKER: This discussion
14 leads me at least to what I consider one of the thorny
15 problems that goes with the Supreme Court decision, and
16 that is that the State has a responsibility to construct,
17 but under the current system, the school districts own
18 after we construct and basically there is no incentive
19 under that kind of a system to maximize the benefit of
20 that building.
21 I just this morning was watching an early
22 morning program and -- Ag Day, and it was talking about a
23 building, a school building, in North Dakota that was no
24 longer in use in the community and it had been purchased
25 by an individual that went to school there. And he
45
1 renovated it and made a supper club out of it, the nicest
2 supper club in the area. People were coming from all
3 over. Absolutely exemplary.
4 How do we get those kinds of processes? Is
5 that -- and maybe I think the staff might be right, Dave
6 might be right, we might need a separate issue here about
7 the disposition of now as we look into the future we will
8 have State-built buildings, State land purchased for those
9 buildings in some situations, and we turn the keys over
10 and ownership to a local school district and have we lost
11 control completely of that building? Do we have -- we've
12 lost control, but we still have the responsibility. This
13 is a subject that under school capital construction we may
14 need to look at in the long term, is long-term ownership,
15 disposition. We have a problem.
16 COCHAIR DEVIN: And I think it integrates
17 here several ways, but it is a problem. And we've had a
18 lot of conversations about, you know, how do we proceed.
19 Well, there's been a lot of advice against dual ownership.
20 That has its own set of problems. And, in fact, what you
21 outlined does to some extent exist. This is the first
22 attempt that we have made to say that this process, there
23 has to be some agreement, in other words, between, the
24 commission and the district and we're trying to get it
25 through the long-term plan so that it is locally
46
1 initiated, you know, what do you plan to do with this
2 building.
3 And there would be some incentives at the local
4 level to do some maximization if they have the ownership,
5 but on the other hand, it needs to be a reasonable
6 solution. And then there's the issues to be negotiated of
7 major maintenance and routine maintenance and that kind of
8 thing if the building isn't demolished because that
9 becomes another problem in that we can just keep expanding
10 into additional space.
11 We can all do that: You can fill the next room,
12 additional closet, next building. You've built one, you
13 fill it. It needs to be a thoughtful process and this is
14 the first attempt to force it into a thoughtful process
15 between the district and the State. And I guess that's --
16 I know how I see that we've never been there before and
17 this is the first attempt to say it has to be a
18 thoughtful, conscious decision.
19 Senator Cathcart.
20 SENATOR CATHCART: Madam Chair, this is
21 exactly an area that is just frustrating. When we build a
22 district a new school, we assume that it is to take the
23 place of an existing inadequate facility. It is going to
24 be very rare that we tear down the school building and
25 then rebuild a new one on that same location because then
47
1 you have the problem of what you do with those students in
2 the interim.
3 Typically what happens, there's a new site
4 picked, the students stay in the old building until the
5 new building is ready. Then we have a surplus building,
6 inadequate for education but it may be totally usable or
7 acceptable for another purpose.
8 And you look at the scenario, we are replacing
9 that building. Now you have property and an asset there
10 that has maybe substantial value or maybe substantial
11 liability. It could be demolished and the lot cleaned.
12 But look at it like when we provide automobiles
13 to our employees. We give you a new automobile. We don't
14 let you keep the old one and just sell it. We take the
15 old one and it is sort of a trade-in. It seems to me when
16 we -- when the State takes over the construction project
17 and the costs and all of that, we're going to give you
18 this new building and then the State should take ownership
19 of the one it is replacing. If it has value or liability,
20 the State assumes that.
21 But it looks to me like we end up adding a lot
22 of assets to a district if they're allowed to keep the old
23 property and the old buildings and then go into a lease
24 situation or sale or whatever. And that's something we
25 probably need to talk about a little more and address.
48
1 COCHAIR DEVIN: Well, and that is the
2 concern, where we want to come down here, because
3 before -- I mean, this is the first step in saying you
4 have to come to agreement with the State on what happens
5 with this. And you get the first opportunity to come
6 forward and say what you think the wise use of it is.
7 Maybe you can demonstrate storage use, but maybe
8 you can't. You know, you can't just let it sit there and
9 expand into it without a conscious agreement with the
10 State.
11 Senator Massie.
12 SENATOR MASSIE: Thank you, Madam Chair.
13 Perhaps the staff or other folks could help me out. With
14 regard to an incentive, I think that the formula for major
15 maintenance and routine maintenance has a diminishing
16 amount of money that the State provides to that school
17 district for maintaining the building, so there's an
18 incentive in both of those formulas for the school
19 district to eventually do something to that building
20 because they're going to be incurring those costs to
21 maintain it, but the State is going to provide less and
22 less of that money to do so.
23 Am I remembering that correctly?
24 MR. NELSON: Madam Chair, that's correct.
25 The square footage would go beyond state standards.
49
1 COCHAIR SHIVLER: I need a clarification
2 on that, Dave. My understanding is if we replace the
3 school, we don't pay major maintenance on the one we
4 replace. Do we? It is only when a school is diminishing
5 in size, in other words, they built a large school and
6 they're only using a third, we pay for that. But do we
7 also pay for a school that we replace that's not being
8 used anymore?
9 MR. NELSON: We do have a provision, Madam
10 Chair, in the major maintenance statutes that allows for
11 unused buildings. And they're subject to -- they're time
12 limited, to keep on the square footage for up to three
13 years, then you have another limiting fact for what the
14 excess is over and above the state standards. We have a
15 200 percent sort of range there.
16 So conceivably they could. I think one thing
17 that might help is that we say here, prescribe a process
18 for surplus, so we would have to arrive at and declare
19 that property surplus somehow. We would look at their
20 remedy and their situation, so that -- as Madam Cochair
21 pointed out, we do have a process now where we would
22 review that with each district. So based on that, I think
23 that would force some kind of action.
24 COCHAIR SHIVLER: That would be handled in
25 our five-year plan?
50
1 MR. NELSON: Yes, exactly. The districts
2 would say how they plan to manage facilities and how they
3 plan to treat that surplus, any declared surplus.
4 SENATOR ANDERSON: Thank you, Madam Chair.
5 I think the essence of the issue here is that what we're
6 talking about is that's the value of the commission
7 forming to go into the discussion. Because I can give you
8 another example of another functional building only
9 operated three years, what do you do with it? It is not
10 something that needs to be torn down. So you can go into
11 that.
12 But I think the idea here is we have a
13 commission that can get a plan with the idea that before
14 you rebuild or before you close you know what you're going
15 to do with it in advance and everybody agrees: If there's
16 liabilities involved, who is going to meet that liability?
17 If there's assets involved, who shares in that assets?
18 That's the essence of the bill. We just need a process
19 and I think that's exactly where we're at.
20 COCHAIR DEVIN: Representative Simpson.
21 REPRESENTATIVE SIMPSON: Madam Chair, in
22 subparagraph romanette (viii) above the one we're looking
23 at, we struck the words on line 4 "a process" and inserted
24 "criteria and procedures." And that same language is in
25 line 10 of prescribing a process.
51
1 I would offer an amendment on line 10 to strike
2 "prescribe a process" and insert "develop criteria and
3 procedures to determine" because, Madam Chair -- I guess I
4 need a second on that to discuss it or I can --
5 COCHAIR SHIVLER: I'll second it.
6 REPRESENTATIVE SIMPSON: We can identify a
7 process, and maybe it is implicit in the word "process"
8 that you have some criteria in there, but it isn't to me.
9 I think a process is just the way to achieve something and
10 not what factors you may determine or look at to determine
11 whether you want to take action. So I think it is
12 necessary to have criteria and procedure.
13 On the sentence that we've been talking about in
14 lines 14 through 16, I think that could be dealt with by
15 just striking that sentence and replacing it with
16 something like such costs and revenues, and those would be
17 the costs and revenues that it is talking about right
18 there in line 13, of "use, lease, demolition or
19 disposition, such costs and revenues shall be accounted
20 for in any construction or renovation project within each
21 district."
22 So however you use your surplus building,
23 whether you sell it, lease it, demolish it, the cost or
24 the revenue has to be considered in any construction or
25 renovation project within your district.
52
1 COCHAIR DEVIN: I think we're mixing two
2 concepts here, so let's discuss each. But let's stay with
3 the first one, if we could.
4 Where we come up to prescribe a process, if we
5 go back to the language that's on -- that's on line 10 we
6 say prescribe a process. If we go back to the language on
7 the top of that page where it said "develop criteria and
8 procedures to determine surplus buildings and facilities,"
9 we're trying to -- because we have such variation and have
10 not worked in this area, we're trying to leave latitude.
11 If we get into developing criteria and
12 procedures, are we still going to be able to address this
13 on a case-by-case basis or are we going to be constricted
14 by our criteria? And I think we're a little bit on new
15 turf here, but what's your sentiments? If we actually
16 develop criteria and procedures, have we limited our
17 ability of these groups to work with the districts on a
18 case-by-case basis?
19 SENATOR MASSIE: Madam Chair, that was my
20 perception as well, that I certainly understand where
21 Representative Simpson is coming from and what he's trying
22 to achieve, but we by leaving the language the way it is
23 now provide flexibility for this commission to work with
24 the districts and deal with problems that are going to be
25 unique to that district.
53
1 So I think establishing a process, prescribing a
2 process lets them know what our intent is and what we want
3 them to do, but it still gives them the flexibility to be
4 able to come up with something that's applicable on the
5 ground.
6 SENATOR CATHCART: Madam Chair.
7 COCHAIR DEVIN: Senator Cathcart.
8 SENATOR CATHCART: Following up on what he
9 says, and what I question, is while it provides a
10 flexibility, does it provide authority then for the
11 commission to say, "We're going to build you a new school
12 here, and rather than demolish this old school, we're
13 going to lease it out," and that becomes the property of
14 the State? Does it give us that kind of authority?
15 COCHAIR DEVIN: My read -- staff, please
16 correct me -- my read is it does not give us that
17 authority. If it is leased out, it is the property of the
18 district and it is their lease. That's why it concerns me
19 a little bit if we get into the financial of fixing up the
20 lease property. But I don't think it gives us the
21 authority to assume any property or to assume any benefits
22 of any property if we built a new school in this paragraph
23 as it is written now.
24 So no, we don't have that authority as it is
25 written now or as it is amended. That would have to be
54
1 something additional if we would want it.
2 Representative Simpson.
3 REPRESENTATIVE SIMPSON: What would happen
4 if a district built a new school with their own money and
5 had another school that was adequate by state standards?
6 Is that then a surplus building even though it meets the
7 adequacy standards of the State?
8 COCHAIR DEVIN: My read -- and please
9 correct me -- my understanding of it would be that if they
10 have exceeded their square footage, they've exceeded all
11 of those pieces, then it could be a surplus building when
12 it came to major maintenance, routine maintenance and the
13 replacement costs of that eventually. Yeah, they've made
14 a local choice and they need to provide locally for all of
15 those other issues because they are in excess of the state
16 standards.
17 Is that -- Mary, you're hesitating. Is that --
18 MR. NELSON: That would be a
19 consideration. I mean, you know, when you're reviewing
20 the surplusage in a school district, that would certainly
21 be one consideration, would be the massive amount of
22 square footage and what the need for that is. I guess I
23 can't envision a situation where that --
24 COCHAIR DEVIN: Where that would happen?
25 MR. NELSON: Dodds.
55
1 MR. CROMWELL: Madam Chair, the major
2 maintenance payments say that when you get surplus space
3 based on, I think it is, 200 percent of the standards, you
4 get payments for three years and then after that you have
5 to either dispose of that property -- you lose your
6 payments unless you can justify to the State that it is
7 less expensive to maintain that property than it would be
8 to dispose of it.
9 And where this really comes into play a lot is
10 it is not so much, I don't think, on building a new school
11 and then having an empty school out there as it is we've
12 got a lot of schools that have been built on piecemeal
13 over the years and now enrollments have declined and so
14 they've got a wing out here that is just sitting there
15 empty but they're having to maintain that year after year
16 after year. So they have that kind of push as to, "Well,
17 we could tear it down but that's going to cost us more
18 than it is to pay the electricity on it and we may need it
19 some year if we go back up."
20 COCHAIR DEVIN: That latitude was intended
21 to give some protection in time to adjust to the
22 situations of declining enrollment and that type of thing,
23 but I guess the action described here where a community
24 simply went out and said, "We don't care. We just want to
25 build a new school with our own money," nobody is going to
56
1 stop them, also it is not then the State's obligation to
2 support them. That is my read.
3 Mary Kay.
4 MS. HILL: Madam Chair, you're going to
5 have precisely that situation in Jackson. Jackson through
6 a separate local revenue stream voted to construct a new
7 elementary school that is well beyond any of the state
8 standards. It is my understanding that the school board
9 intends to dispose of that property. The proceeds of that
10 property will become revenues to the district and they're
11 allowed to keep those as revenues to the district.
12 So you do have a situation where a school
13 district can, in fact, build that. The school board so
14 far in Jackson has taken the step to move toward
15 disposition of the property, and as we've said, the
16 language in the statute applies to educational space with
17 some time to phase that out. But you do have that very
18 situation.
19 In Buffalo the property for the high school that
20 is anticipated to be replaced is also attractive on the
21 real estate market and the district does anticipate
22 selling that land, which again, those revenues revert to
23 the district.
24 So what I think you're trying to do with this
25 particular language is give your facilities commission the
57
1 authority to enter into agreements with school districts
2 as to the disposition, whatever that disposition may be,
3 to -- as to the asset. And if the asset generates some
4 revenues, that those could be used to offset project
5 costs.
6 COCHAIR SHIVLER: Madam Chair, may I ask a
7 question?
8 COCHAIR DEVIN: And I'm not sure that
9 this -- before we leave her thought, I'm not sure that
10 this paragraph says -- and staff, please correct me -- I'm
11 not sure it says that the assets from that can be used to
12 offset the project.
13 Yes.
14 MR. NELSON: Madam Chair, on line 13 we
15 have given the ability to allocate resulting costs and
16 revenues. That would allow for some arrangement. I
17 didn't think it allowed for the State to take over the
18 building. I certainly don't think it goes that far. But
19 I think it would allow the consideration of costs.
20 For example, you have a district now in Weston
21 Number 7 which can't get rid of this old building. So, I
22 mean, you have every situation that is different. So that
23 would be a cost on what to do with this old property.
24 Then you have a situation where disposition of property
25 would provide revenues to the State.
58
1 So I think you can consider that in any remedy
2 and I think that that language on line 13 would allow you
3 to set a plan to do that.
4 COCHAIR DEVIN: So it allows it but it is
5 not tight language?
6 MR. NELSON: Yeah, it doesn't mandate that
7 the State go in and take that over.
8 COCHAIR DEVIN: Okay. I would like to
9 finish up these two amendments on this paragraph and then
10 take a break.
11 But, Mr. Cochair, you had a comment.
12 COCHAIR SHIVLER: Madam Chair, I was going
13 to ask Mary Kay a question, I mean, that reverts back to
14 the State when they tear the building down, they don't
15 have both the land and the building?
16 MS. HILL: Madam Chair, I'm not sure. If
17 the district does not own the land, then no, they may not
18 dispose of the land. But I don't know what that specific
19 situation is.
20 COCHAIR DEVIN: Okay. Does that clarify?
21 So we're back on the amendment that would change the
22 language on line 10 to read "develop criteria and
23 procedures to determine" --
24 REPRESENTATIVE SIMPSON: Madam Chair, I
25 think that ought to read "develop criteria and procedures
59
1 for the determination of..."
2 COCHAIR DEVIN: You have heard the debate
3 on whether we change it or leave it as it is.
4 Is there further discussion?
5 To adopt the amendment, all of those in favor,
6 aye.
7 All of those opposed, no.
8 Okay, that amendment is not adopted.
9 We were moving to the bottom of that paragraph,
10 then, as to in this case we have presently considered the
11 demolition of buildings as a part of the cost of the
12 project.
13 Did you still want to offer an amendment that we
14 consider other expenses?
15 REPRESENTATIVE SIMPSON: I would, Madam
16 Chair. In light of the language in line 13, including
17 allocation of resulting costs and revenues, I would -- I
18 mean, if Buffalo were building a new school and the State
19 funded it to the adequacy standard and they enhanced, I
20 would see that as a situation where you might have an
21 allocation of an existing surplus building if it were sold
22 and the district says, "Well, the State is paying 80
23 percent of it. We're enhancing it another 20 percent.
24 Let's split the proceeds of the sale of the surplus
25 building 80/20." That's something they could propose to
60
1 the commission. The commission might agree to that.
2 And the language that's proposed there in lines
3 14 through 16 I don't like, so I would propose that we
4 just replace it with "such costs and revenues shall be
5 accounted for in any construction or renovation project"
6 -- "or in any subsequent construction or renovation
7 project within each district."
8 I'll restate that: "Such costs and revenues
9 shall be accounted for in any subsequent construction or
10 renovation project within each district."
11 COCHAIR DEVIN: And just as an explanation
12 before I ask for a second, what do you hope to achieve by
13 that and how do we, I guess -- maybe what we all need
14 clarified on is so I have it written "such costs and
15 revenues shall be accounted for in any subsequent
16 renovation project within each district"?
17 REPRESENTATIVE SIMPSON: Right, "such
18 costs and revenues shall be accounted for in any
19 subsequent construction or renovation project within each
20 district." And the intent of that is to say that any
21 costs or revenues that come from the use, lease,
22 disposition or demolition of any building will be
23 accounted for in any subsequent construction or renovation
24 project within each district.
25 COCHAIR DEVIN: And earlier and
61
1 initially -- I sense that people need to understand this a
2 little more before they decide whether they want to second
3 it, so I'm going to leave that latitude, but how does this
4 not place us in the position -- so if the district would
5 decide to lease this, would have an opportunity or they
6 would decide to dispose of it in some way that brings them
7 income, are we as a State being placed in the position of
8 renovating this building, then, to the extent that it
9 becomes an income property for the district?
10 REPRESENTATIVE SIMPSON: Madam Chair, my
11 intent is that if a surplus building is an
12 income-generating asset for a district, that that ought
13 to be taken into account when determining state funding of
14 a new construction or renovation project in that district.
15 COCHAIR DEVIN: Senator Massie.
16 SENATOR MASSIE: Thank you, Mr. Chairman.
17 I was going to ask the staff this and maybe this is what
18 Dave Nelson is also thinking: Presently is lease or
19 rental revenue considered a local revenue source?
20 MR. NELSON: Yes, it is.
21 REPRESENTATIVE MASSIE: So that's already
22 taken into account?
23 MR. NELSON: In the formula, right.
24 COCHAIR DEVIN: So it would be a local
25 resource --
62
1 MR. NELSON: Right.
2 COCHAIR DEVIN: -- that would be accounted
3 for in the support of that district?
4 MR. NELSON: Yes. Madam Chair, I had one
5 thought: Rather than restrict it to any such project, how
6 about just "shall be considered in the overall
7 district" -- their local district building plan,
8 facilities plan? Does that --
9 REPRESENTATIVE SIMPSON: That's fine with
10 me, Madam Chair.
11 MR. NELSON: I see what you're doing.
12 REPRESENTATIVE SIMPSON: I don't
13 necessarily like my language there at the end either, but
14 I like yours better.
15 COCHAIR DEVIN: Okay. Could the two of
16 you pull that together for me so I could ask if we have a
17 second.
18 REPRESENTATIVE SIMPSON: Madam Chair,
19 would you like to come back to this and let Dave and I sit
20 down for a minute?
21 COCHAIR DEVIN: Do I hear the call for a
22 break?
23 COCHAIR SHIVLER: Second that.
24 COCHAIR DEVIN: Let's take our break and
25 we'll make it a little longer and try to be back promptly
63
1 at 10:30 then.
2 (Recess taken 10:13 a.m. until 10:35 a.m.)
3 COCHAIR DEVIN: Committee, we were on page
4 7, at the bottom of that page, and, Representative
5 Simpson, you were going to work on some language.
6 Would you like to read for us in place of the
7 last sentence what we're looking at?
8 REPRESENTATIVE SIMPSON: That's right,
9 Madam Chair. In place of the last sentence, subparagraph
10 (ix), romanette (ix), insert two sentences, the first one
11 being, "Such costs and revenues shall be accounted for in
12 any local district facility plan."
13 And then another sentence, "Any consideration of
14 other revenues pursuant to W.S. Section 21-13-310(a)(xv),
15 shall not be allocated under this paragraph."
16 And then accordingly amend page 14, lines 5
17 through 9, to match this.
18 COCHAIR DEVIN: Okay. And what does that
19 last sentence mean? What are you referencing and what
20 does it mean?
21 REPRESENTATIVE SIMPSON: Madam Chair, that
22 last sentence references the school foundation grant
23 program that allows for an offset for lease and rental
24 income. And Senator Massie pointed out that you wouldn't
25 want a district to be hit twice if they gained revenue
64
1 from a lease or a sale -- a lease or rental, because
2 that's taken off their foundation grant as a local revenue
3 source and we wouldn't want it being taken off here also.
4 So this sentence says that that consideration wouldn't be
5 allocated under this paragraph.
6 COCHAIR DEVIN: It will only be considered
7 once?
8 REPRESENTATIVE SIMPSON: Just once.
9 SENATOR MASSIE: I'll second that.
10 COCHAIR DEVIN: There's a motion and a
11 second.
12 Is there discussion?
13 REPRESENTATIVE ROBINSON: Madam Chair.
14 COCHAIR DEVIN: Yes, Representative Baker
15 and then Representative Robinson.
16 REPRESENTATIVE BAKER: Under the third
17 sentence you've designed here, other revenues, Madam
18 Chair, other revenues could come from disposition, in
19 other words, sale.
20 REPRESENTATIVE SIMPSON: Madam Chair, the
21 language says "other revenues pursuant to W.S. 21-13-310
22 (a)(xv)," and that defines those specifically. We could
23 say "as defined in," but I think "pursuant to" is probably
24 more proper.
25 REPRESENTATIVE BAKER: Okay, that I didn't
65
1 catch in here. So just to be clear, Madam Chair, the
2 sale -- the third sentence here is not talking about sale,
3 if the disposition is a sale, but it is talking about
4 lease or other income revenues that may come from that
5 property on an annual basis.
6 REPRESENTATIVE SIMPSON: Madam Chair --
7 and maybe Mary or Dave can correct me -- other revenue, it
8 could be a lease or a sale if it was built at a certain
9 time and that was given -- that was deducted from your
10 foundation grant. Any revenue that might be deducted from
11 the foundation grant would not be deducted under this
12 paragraph, whatever it might be.
13 COCHAIR DEVIN: You're saying it is
14 deducted once, you're trying to prohibit it being deducted
15 twice.
16 REPRESENTATIVE ROBINSON: Madam Chair, to
17 save me from having to make an amendment later, I would
18 like to ask the sponsor to change the first word of the
19 first sentence to "the."
20 COCHAIR DEVIN: "The costs" rather than
21 "such"?
22 REPRESENTATIVE SIMPSON: That's fine,
23 Madam Chair.
24 REPRESENTATIVE ROBINSON: We take it out.
25 COCHAIR DEVIN: Is there other discussion?
66
1 I'll call for a vote. All of those in favor of
2 that amendment, aye.
3 Those opposed, no.
4 That amendment carries.
5 We will proceed, Dave, if you will explain the
6 changes on the next page.
7 MR. NELSON: On page 8 on subsection (c)
8 at the top, the intent was on lines 3 and 4 to kind of
9 tone down the requirements for the director of the
10 commission. We felt it was a little bit onerous to put
11 the extent of requirements we did. And it just simply
12 tones down the requirements, statutory requirements, for
13 the director of the commission.
14 At the bottom of the --
15 COCHAIR DEVIN: I had one question on
16 that. And I guess I would defer to the experts, but on
17 line 2 you have left in the "demonstrated competency in
18 school facilities planning and construction," and it is
19 the school I question.
20 Do we need -- is there a -- you would have
21 people on your commission that specified school. Do we
22 need somebody who understands facilities planning and
23 construction or do we need it specific to school? Is that
24 quite limiting our director?
25 MR. CROMWELL: Madam Chair, I don't think
67
1 so. I think you want somebody who understands educational
2 facilities and the planning of those which is, you know,
3 different from planning prisons or hospitals or city
4 buildings.
5 COCHAIR DEVIN: So I've never tried to
6 hire one of these people. We can find people to fill this
7 type of a position?
8 MR. CROMWELL: I believe so.
9 COCHAIR DEVIN: Okay.
10 SENATOR CATHCART: Well, Madam Chair, in
11 my opinion that restricts it somewhat. I think you can
12 have applicants for this job who would be excellent
13 looking at construction projects and overseeing these
14 kinds of projects who has very limited experience dealing
15 with school facilities and construction. Most contractors
16 today, especially in Wyoming, are diverse. Most
17 contractors in Wyoming have built schools or banks.
18 But it cuts your talent pool down a bit to draw
19 from, and we are such a small state, we don't have a huge
20 pool of talent to draw from when we're looking for people
21 like this. So I'm a little concerned about that wording.
22 MR. CROMWELL: Madam Chair, Senator
23 Cathcart, I think that it is of concern to me that it is
24 not just overseeing construction, but the commission is
25 going to be overseeing helping to establish standards for
68
1 school buildings, overseeing the master planning for
2 facilities that's going to go on. They're going to be
3 answering to that quote of educational basket of goods and
4 that's going to be woven in there all of the time. I
5 think this director really needs to be knowledgeable about
6 the field of education and educational facilities.
7 COCHAIR DEVIN: I don't want to bog this
8 down, and I guess I'll let you think about this and we'll
9 come back through this with some of the amendments, but
10 balanced with that on the commission we did leave in the
11 specification that there would be one individual in school
12 facilities planning and management and then one individual
13 with the state educational program for public schools as
14 required by law and that's on the commission.
15 The director would also have the option, I
16 assume, of hiring some expertise in this area in his
17 department, so ponder on that one how you want to go on
18 it, whether we are going to -- if that's where we want to
19 be.
20 Dave, please go ahead.
21 MR. NELSON: Madam Chair, in subsection A
22 of 21-15-115, this is the statewide adequacy standard
23 language. The sentence that starts on line 21, page 8,
24 and continues on over to page 9, line 5, was taken from
25 the existing law which speaks towards any kind of conflict
69
1 with municipal zoning or ordinance that was wanted to make
2 this provision identical to existing law. What that does,
3 it incorporates that one sentence into the directory
4 language about the uniform statewide adequacy standards.
5 SENATOR MASSIE: Madam Chair, I have a
6 question about that. Where the language is limited to
7 municipal zoning, do we also need to include county
8 zoning? I know that may be a contradiction in terms right
9 now in the state, but we may want to include that just for
10 the future.
11 REPRESENTATIVE SIMPSON: Madam Chair,
12 since we're talking about seismic problems, we certainly
13 could have schools in counties or municipalities that are
14 not built to seismic code or not comply with current
15 zoning in particular counties that may want to be
16 renovated. I don't know how this paragraph would fit with
17 that. Does this just say that regardless of what the
18 county says, you can use your building for educating
19 students?
20 COCHAIR DEVIN: Senator Cathcart.
21 SENATOR CATHCART: Well, Madam Chair, I
22 think we have a standard. Typically hopefully we're going
23 to develop a standard here that's going to be adequate.
24 And when -- Madam Chair, I thought Representative Simpson
25 was going to the seismic thing and the appropriate place
70
1 for that when we start amending the bill is probably on
2 page 9 under roman numeral (iii) there.
3 Every municipality is different. They have
4 local jurisdiction on standards and codes and all of that.
5 So I think if the State adopts a standard for schools, it
6 should not have to comply with every different municipal
7 code, or county even. I think as Senator Massie brought
8 up a great point, some counties in Wyoming have limited
9 zoning, for example, five-mile radius from an incorporated
10 city, et cetera.
11 COCHAIR DEVIN: And if you look on page 9,
12 line 8, it also talks about requirements for educating
13 students in a safe environment, including all applicable
14 building, health, safety and environmental codes and
15 standards.
16 So I recall when we discussed this that some of
17 the current statute, health and safety codes still apply.
18 It is other sorts of --
19 REPRESENTATIVE SIMPSON: Madam Chair, I'm
20 okay with it.
21 COCHAIR DEVIN: We will move on, then.
22 MR. NELSON: The next change is on page
23 11, lines 3 through 4, and that just simply strikes out
24 the authorization for contract assistance. We've given a
25 general, broad authority under commission duties and we've
71
1 restated ourselves several times, so this is just kind of
2 a clean-up.
3 The next amendment appears at page 12, and this,
4 again, relates back to the local enhancement modifications
5 that we earlier talked about, and it is just kind of a
6 clarification of existing language, and it is very similar
7 to the other change back on pages 9 and 10, I believe.
8 The next modification is on page 14. We've
9 already discussed that. This would be modified in
10 accordance with Representative Simpson's amendment on the
11 requirement to include disposition, demolition, so on and
12 so forth in the local facility planning process.
13 COCHAIR DEVIN: Okay. Just to clean that
14 up, could I just have a motion that it be made to comply
15 with that?
16 REPRESENTATIVE SIMPSON: Madam Chair, that
17 was included in my first motion.
18 COCHAIR DEVIN: Okay, sorry, it was. I
19 remember that now. Thank you.
20 MR. NELSON: The next amendment is on page
21 17, subsection (e). This is language that directs
22 districts to submit plans, their local facility district
23 plans, to the commission and gives them a timeline. The
24 amendment on line 7 extended that, provided a little bit
25 more flexibility for the commission review, once they
72
1 received that plan to give them a longer time to review
2 it.
3 The word "change" on line 12 is a clarification,
4 as is the word "change" on line 17, and so I think the
5 intent was just to kind of clarify what the existing
6 intent was.
7 The amendment to that same subsection on page
8 18, lines 3 through 8, took out the provision that
9 prohibited any kind of judicial review, stating that the
10 decision of the commission was a final administrative
11 determination and did subject that decision to appeal
12 under the APA.
13 REPRESENTATIVE BAKER: Madam Chair.
14 COCHAIR DEVIN: Representative Baker.
15 REPRESENTATIVE BAKER: I don't remember --
16 I remember a little bit of the discussion. What was the
17 reasoning? That was committees that thought of that.
18 What was the reason?
19 COCHAIR DEVIN: There was discussion about
20 giving recourse, some sort of way to settle a dispute if
21 there was disagreement.
22 SENATOR MASSIE: Madam Chair, I also
23 raised that point and that was my concern, that whenever
24 this had been in statute before, it has raised a great
25 deal of discussion on whether or not it is
73
1 constitutional to tell someone they have no recourse
2 through the courts, when in reality judicial law allows
3 them to have that kind of recourse.
4 So I raised that at our last meeting, on whether
5 it was something that we wanted to include in this bill
6 that automatically may take a group of folks and vote
7 changes and vote against it simply because of a concern
8 that's raised that really has nothing to do with capital
9 construction.
10 REPRESENTATIVE BAKER: Thank you.
11 COCHAIR DEVIN: And I think this
12 appropriately addresses a recourse without, hopefully,
13 putting us in a whole chain, series of court things on
14 every issue.
15 REPRESENTATIVE BAKER: Thank you.
16 MR. NELSON: Madam Chair, the next
17 modifications occur at page 19 at paragraph 2, we deleted
18 the word "scores" and inputted "measure" simply because
19 that was a little more descriptive of describe building
20 suitability, technology readiness, all of those criteria.
21 We also deleted the reference to contract
22 assistance on paragraph 36 that page. We clarified the
23 language such that enrollment growth could also decline.
24 So to reflect that we put the word "changes," again being
25 a little more accurate language. And, accordingly, we
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1 modified the rest of that paragraph.
2 The next change is on paragraph IV, page 20,
3 which conforms to the Supreme Court decision a little more
4 clear and describes that priority shall be given to
5 educational buildings and also to conditions in those
6 buildings which impede the delivery of the educational
7 program which clarifies the intent more specifically.
8 The next goes clear back to page 38, and again
9 that is just clarifying language. This is in the major
10 maintenance payment statute and we're again talking about
11 local enhancements. And it tries to more clearly state
12 that the square footage with enhancements shall not be
13 included for purposes of computing major maintenance
14 payments.
15 SENATOR MASSIE: Madam Chair, I had just a
16 question on this, not necessarily amendment or any
17 quibbles about the language.
18 Do we need somewhere in the statute to make the
19 same provision with regard to routine maintenance?
20 MR. NELSON: Madam Chair, that was brought
21 up and yes, we do. And you will have a vehicle if they
22 forward all of these vehicles through the MAP because it
23 is imposing the -- a separate provision for routine
24 maintenance.
25 COCHAIR DEVIN: Representative Anderson.
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1 SENATOR ANDERSON: Thank you, Madam Chair.
2 Question in regard to procedure. I see one little (i),
3 middle of page 38, line 8 and then we go to (iii), line 1,
4 page 39, but I don't see (ii).
5 MR. NELSON: Madam Chair, (ii) is not
6 pulled in because we're not modifying it. This is a
7 section that we're amending in the law, so under
8 subsection (c) we're only modifying paragraphs (i), (iii),
9 (v), and we just let them remain the same, as they exist.
10 COCHAIR DEVIN: Sometimes that gets hard
11 to track because of that, especially if you get a question
12 on the floor and it is contained in there and then you're
13 like I know that's there, where is it?
14 REPRESENTATIVE ROBINSON: Madam Chair.
15 COCHAIR DEVIN: Yes.
16 REPRESENTATIVE ROBINSON: On line 21 we
17 need to take the word "of" out.
18 COCHAIR DEVIN: Any objection? We'll do
19 that.
20 MR. CROMWELL: Madam Chair.
21 COCHAIR DEVIN: Yes.
22 MR. CROMWELL: I had one thought here. In
23 this phrase that's saying "no gross square footage
24 associated with any district enhancement," I'm not sure --
25 I could foresee a district paying for an enhancement to a
76
1 building -- I can't think of anything specific right now,
2 but I'll make up something kind of fantastic.
3 Maybe a district wanted a classroom that had
4 skylights over the whole roof because they wanted to grow
5 plants in this room -- I don't know -- but anyway, they
6 wanted an enhancement to that classroom that was not
7 within the state standards, but they were willing to pay
8 for it.
9 Would this then eliminate that square footage
10 completely?
11 MR. NELSON: Probably not, because, I
12 mean, how could you? You put a skylight instead of a
13 regular roof, is that what you're saying?
14 MR. CROMWELL: Or they wanted -- a better
15 example, maybe, they wanted marble floors.
16 REPRESENTATIVE BAKER: Skylights are okay.
17 Marble floors are not.
18 COCHAIR DEVIN: Not the leaking skylight.
19 MR. NELSON: Under the formula if that
20 square footage was necessary, you just embellished it with
21 additional trappings, and it is not excess, then the State
22 would pay you enough to maintain that.
23 It may not be enough to fix a skylight all of
24 the time, but it would be whatever formula is determined
25 to maintain that square footage. Does that make sense?
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1 They would still get a payment for it, it would just be
2 the problem of the square footage.
3 COCHAIR SHIVLER: We're not -- and in this
4 instance you're not talking about additional square
5 footage, you're just talking about embellishment to the
6 square footage. I think nothing would change there as far
7 as major maintenance goes, unless they said well, this
8 skylight is going to leak every two years and you need to
9 fix it. Then whoever embellished it would have to put
10 money in to fix that perhaps.
11 The way I saw that, the square footage, let's
12 say they wanted a band room that's 600 square feet and
13 they said, "No, we want that 1600 square feet because we
14 have a great band." That 600-square-foot embellishment is
15 what this is talking about, the embellishment on the 600
16 square feet.
17 MR. NELSON: That's correct. The language
18 could be construed to say just because you -- maybe we
19 need to tighten it up even more, no square footage
20 associated with --
21 SENATOR MASSIE: You could say created
22 by.
23 MR. NELSON: District enhancement.
24 COCHAIR DEVIN: Senator Massie is
25 suggesting the words "created by."
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1 MR. NELSON: "Created by" might be a
2 better choice of words.
3 COCHAIR DEVIN: And that would go --
4 MS. BYRNE: That would be clearer, I
5 think.
6 MR. NELSON: That would be clearer, I
7 think.
8 COCHAIR DEVIN: The words "created by,"
9 would you move that?
10 SENATOR MASSIE: I do.
11 COCHAIR DEVIN: Is there a second?
12 REPRESENTATIVE BAKER: Second.
13 COCHAIR DEVIN: Any discussion?
14 All of those in favor, aye?
15 Opposed?
16 Okay, that will be amended.
17 It was on line 18, instead of "associated with"
18 put "created by."
19 MR. NELSON: That takes us through the
20 amendments from the last meeting.
21 COCHAIR DEVIN: Okay. Then we have two or
22 three amendments that have been suggested to us.
23 Actually, we had one that we were asked when we reported
24 to the great big group, the oversight group, to consider,
25 and then we have a transition amendment.
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1 Dave, we have about an hour. Do you think the
2 transition amendment would be best considered now? This
3 will bear a fair amount of concentration so we will try to
4 catch you while you're fresh in the day here.
5 Let's go ahead and take this transition
6 amendment first. And it came to our attention that we
7 probably needed -- and let me try to give you a little
8 background -- that we probably need a little more
9 clarification in our transition piece on how we get --
10 we've got several projects sitting out there in different
11 stages, and that we needed to try both for the court
12 decision and for the fairness to the district and for the
13 understanding of everything how we get to those pieces and
14 how we get them addressed.
15 So the staff -- that kind of came from two or
16 three different sources, that we needed to get clearer on
17 this and that we needed to get the lines of how these
18 pieces go a little clearer.
19 And it is still a process -- a process in
20 development or in work. We're working on it as we go, but
21 I think there were three or four sources saying we needed
22 to get more clear on this, so we're trying to do this in
23 the bill.
24 There's a piece which says page 48, line 4,
25 et cetera. That's the actual technical amendment. But if
80
1 you come over then to the place that says section 4,
2 transition amendment, it makes a little more sense. And
3 here's the pieces we need to address. And I will start
4 from the most recent and go backwards.
5 In October we had presented to us as a
6 legislature, according to the statute, from the Department
7 of Education on October 17th the new immediate needs list,
8 and there are 14 schools on that new immediate needs list.
9 We've essentially not done anything with them,
10 but under law they came forward as immediate needs and
11 need to be addressed.
12 That's one piece in the pipeline. Some people
13 are calling that pipeline 3, but anyway, pipeline 3 is the
14 new immediate needs list.
15 The next piece we've got out there is Powell
16 which came last year, and that piece is kind of different
17 in grouping from the other pieces.
18 And then we have another group that are kind of
19 pipeline 1 that are currently by statute under the JAC,
20 and four of those are very similar. And one is kind of
21 setting there different, and the similar ones are Worland,
22 Buffalo, Fremont 38 and Natrona. And the piece that is
23 also under that same timeline is Lander, but they came in
24 under the emergency provision track, not under the routine
25 track.
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1 Now, where we stand on this group is Worland has
2 passed their bond issue but they did it under the old
3 system when the mill levy was still permitted and they
4 would bond to 90 percent of capacity and the new opinions
5 and so forth clearly indicate that local bonding piece is
6 not necessary.
7 Fremont 38, that bond issue failed.
8 Buffalo, that bond issue passed, but they were
9 very clear with their voters -- because the October
10 decision had come out, their school board actually took
11 out ads and they were clear with their voters that
12 although they were asking them to pass in, it would be for
13 amenities -- or enhancements, I should say, not
14 amenities -- enhancements and that they would probably not
15 use anywhere near the amount of the bond issue.
16 And they promised their voters that they had
17 already seen the high school plan they would not exceed
18 that piece and that they would use what they needed to of
19 this, which would probably look more like 2 or $3 million
20 than the 8, I believe. Please don't quote me on those
21 figures because I don't have them in front of me. But
22 they have been the district most following this and most
23 up front with the voters exactly what's happening and
24 because of the timing and the opportunity to give this
25 explanation.
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1 So we have Worland where it is passed, Buffalo
2 what I just described, Fremont where it has failed,
3 Natrona has not taken it to their voters yet, and then we
4 have the Lander issue which is the emergency track.
5 Because of this group and the local bonding
6 piece no longer being available, we have profiled on the
7 financial statements for the upcoming budget an additional
8 $45 million that would have been the local piece that will
9 now become the State piece, and that is based on the fact
10 that they no longer -- the Attorney General's opinion and
11 the court decision, which you did get the AG's opinion
12 that said local bonding is no longer necessary and there
13 are local contributions, everything within the adequacy
14 standards, within the standards of the state, those that
15 are the standard building need to be paid for by the
16 State, so we've profiled an additional $45 million that
17 would have been local contribution that is no longer local
18 contribution.
19 SENATOR MASSIE: Madam Chair, I hate to
20 interrupt, but just to ask a question, I think one of the
21 school districts you mentioned, was it Worland, actually
22 passed their bond issue before the Supreme Court decision,
23 but my understanding is they didn't issue the bonds until
24 afterwards. So is that the reason they would fall into
25 this category that the State would assume all of the
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1 costs?
2 COCHAIR DEVIN: Yes. I will defer to one
3 of you people who have worked in detail with this.
4 REPRESENTATIVE BAKER: They have not
5 issued those bonds yet at all.
6 SENATOR MASSIE: But, Madam Chair, they
7 did pass it but haven't issued it and that's what puts
8 them into the post-Supreme Court decision?
9 REPRESENTATIVE BAKER: That's correct.
10 COCHAIR DEVIN: It is. And you will note
11 that this memo from the AG's office indicates that if
12 those bonds were not issued, then it is an issue date as
13 of February 23rd, is the clarification on the rehearing,
14 that if their bonds were not issued by then, then they do
15 not fall under the old system, they fall under the new
16 system, which leaves us with a dilemma now of separating a
17 number of things in these pipeline projects. They are not
18 simple because all of these districts have some
19 enhancement pieces -- many have enhancement pieces. Some
20 are not even definite. Some know they want them, whether
21 we pay for them or not. Some don't have that decision
22 made.
23 So we are in varying stages of flux. And so
24 we've essentially got that group in the pipeline with
25 Lander being kind of different in there; we've got Powell;
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1 and then we've got the new immediate needs and that's
2 essentially what my perception is of this transition
3 amendment and what it tries to address, these situations.
4 Dave.
5 MR. NELSON: Madam Chair, the pipeline 1
6 are not addressed by this. That is still in the Joint
7 Appropriations Committee being fleshed out as we speak.
8 This transition process would address things
9 subsequent to that, from that point on, which as Madam
10 Cochair very well explained to you would be the Powell and
11 the then-identified immediate needs projects you just
12 received in that memorandum dated October 17th.
13 COCHAIR DEVIN: So knowing that we're --
14 you know, it is real easy to get tangled up on these.
15 Would you walk us through the transition amendment, what
16 applies to each and how we're going to try to handle them
17 so that we can, number 1, address key progress -- keep
18 progress moving while we're putting the new piece
19 together. I think that's one of our goals, of getting the
20 piece moved, the job done and meeting that need.
21 MR. NELSON: Be happy to, Madam Chair.
22 REPRESENTATIVE SIMPSON: Madam Chair, I'm
23 sorry, can I clarify that transition covers the Powell
24 plus the immediate needs and the new list subsequent to
25 Worland, Buffalo, Fremont 38, which is Lander, Natrona,
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1 those four?
2 MR. NELSON: Yes.
3 REPRESENTATIVE SIMPSON: Thank you.
4 MR. NELSON: The first aspect is the
5 Powell timeline and that's under subsection --
6 COCHAIR DEVIN: Dave, before you start,
7 did you all receive the AG's opinion which talked about
8 the mill levy? We will have an opportunity to ask
9 questions on that later today. But it talked about the
10 mill levy, the local bonding, all of those. You did all
11 receive that piece?
12 Because some of this is based on what we need to
13 do and the fact that local enhancements are definitely
14 permitted, but they are definitely not the State's
15 responsibility, so that is what we're trying to address
16 here.
17 MR. NELSON: Exactly. And we have extra
18 copies if you need more copies of the AG's opinion about
19 the bonding issues and refunding issues.
20 COCHAIR DEVIN: So we tried to keep that
21 in mind when these problems came to try to draft the bill.
22 Go ahead, Dave.
23 MR. NELSON: Subsection (b) deals with
24 the -- that's on -- if you look at, as Madam Chair pointed
25 out, section 4, the revised section 4 on that amendment,
86
1 that subsection (b) deals with the Powell situation.
2 In the state superintendent's budget request
3 that will go before you this budget session, there will be
4 a line item in there that would provide money to the state
5 superintendent to fund any sort of planning that may be
6 necessary for developing a remedy for this project. That
7 is not in this, but I just -- that will be part of your
8 deliberations this session.
9 What this subsection does, it directs the Joint
10 Appropriations Committee to review this inadequacy and to
11 develop a remedy for it. And this would include not only
12 the level of study that they conducted for the pipeline 1
13 projects, but would also go a bit further and would
14 establish the remedy, establish the best solution they can
15 determine for addressing the identified inadequacies of
16 that particular school district.
17 They, then, would work on that remedy and as --
18 to the extent practicable, would try to coordinate with
19 the commission to the level that it is up and running by
20 the 2003 general session.
21 So this provides a mechanism for dealing with
22 that timeline project. Again, this project goes back a
23 year ago that was identified from the state superintendent
24 immediate need list that would have been submitted in 2001
25 and then has been responded to by the district through an
87
1 application to the state superintendent for state
2 assistance and was processed by the advisory committee of
3 the state superintendent and was submitted to the Joint
4 Appropriations Committee in August.
5 At that time it was not forwarded, and so the
6 state superintendent is keeping it alive through her
7 budget. This then would be a directive for the Joint
8 Appropriations Committee to deal with the remedy for this
9 specific situation.
10 So it is on a different timeline, just so that
11 that -- that's my main point for bringing all of this up,
12 it is on a timeline different from subsection C.
13 Continuing, then --
14 SENATOR MASSIE: Madam Chair.
15 MR. NELSON: Excuse me.
16 SENATOR MASSIE: A question then, just to
17 connect pipeline 1 project with pipeline 2, so I
18 understand that pipeline 2, which is Powell, we're going
19 to deal with as a legislature in 2003 based upon the work
20 of the JAC and their recommendations. Pipeline 1 projects
21 which include Lander and the rest of them, we're going to
22 get recommendations from the Joint Appropriations
23 Committee this coming session in February to fund whatever
24 the State's share of those are so that, for instance, in
25 Lander that's already passed a bond issue, they will know
88
1 by March what part of that bond issue they're actually
2 going to have to pay off and what part the State is going
3 to be paying for?
4 MR. NELSON: Exactly.
5 SENATOR MASSIE: Okay.
6 COCHAIR SHIVLER: Mary.
7 MS. HILL: Actually, Lander already has
8 their money. Lander already has because they were an
9 emergency application. Their footnote was distinct from
10 the footnote that covered Buffalo, Worland, Casper and
11 Fremont 1, so Lander actually -- their funds were freed up
12 in August at a meeting of the Joint Appropriations
13 Committee.
14 So you folks won't deal again with Lander the
15 same way you will be dealing with Buffalo, Kaycee,
16 Worland, Casper.
17 MR. NELSON: But, Madam Chair --
18 COCHAIR DEVIN: We have some budget issues
19 here and it can get real confusing, so let's keep
20 tracking.
21 Dave, you wanted to make a clarification?
22 MR. NELSON: Just one clarification, and
23 Mary Kay is exactly right, it was an emergency project.
24 But this is another confusing part: Since the project
25 falls after the February timeline, the level of adequacy
89
1 that the State is responsible for accordingly increases,
2 so you will again have to deal with the overage.
3 But she is right, the $20 million under the
4 emergency appropriation was released by the Joint
5 Appropriations Committee in August.
6 COCHAIR DEVIN: And would you like,
7 Representative Baker, to add some clarification? When I
8 say it is complex, I don't want to concern you because
9 they finally got me to understand all of these things.
10 REPRESENTATIVE BAKER: Of course the
11 concern, Madam Chair, that -- and there are two other
12 members that sit on the Appropriations Committee in this
13 Select Committee, and I certainly don't want to take any
14 of their thoughts. I would welcome their thoughts in
15 this.
16 The thing that I think gives me and the
17 committee the most consternation is the determination of
18 adequate.
19 In fact, I think without consultation with
20 others I think adequate could very easily be cut below the
21 $20 million that's been allocated to that. But, you know,
22 unilaterally I don't think that's the way the legislature
23 should work and will work.
24 So I would like, as chair of the House
25 Appropriations Committee anyway -- I would like some aid
90
1 somewhere in determining where that line for adequate is
2 so that we don't have the pre-pipeline 1 project of Lander
3 out here, adequate is one thing, the -- what's now being
4 called pipeline 1 projects of Worland, Buffalo, Fremont 38
5 and Natrona, adequate being something else, and adequate
6 when it is finally determined hopefully for the pipeline 3
7 projects, Powell, to be something else so we have a
8 changing line of adequate over time.
9 That's my concern, that we have some help in
10 determining adequate as we go forward because we're
11 supposed to fund 100 percent of adequate.
12 Apparently the Appropriations Committee is going
13 to take the first cut at what is adequate, but I don't
14 think that that should be necessarily a unilateral cut. I
15 would hope that that is a subject that we could discuss
16 here and we could get some help to the appropriations
17 committee in determining adequate to meet the standards.
18 COCHAIR DEVIN: Well -- and I think that
19 we may -- we may be able to do that. We have several
20 pieces of it, but due to the -- as you well know, I don't
21 know how many of you were involved in the discussion, but
22 due to the wording of the footnote on the Lander piece, it
23 simply said we appropriated $20 million and there wasn't
24 latitude in that.
25 And the JAC sought legal advice and so forth, so
91
1 we may -- when I say it is different, it is different
2 because of that wording of that footnote and that
3 appropriation that was released as the department
4 indicated which was there and had to be dealt with the way
5 it was dealt with, so it is different.
6 We can certainly have that -- let's have that
7 discussion before we leave this today and what pieces are
8 there and what pieces are probably still evolving. But to
9 the extent we can, we need to be as uniform as possible.
10 SENATOR MASSIE: Madam Chair, back to the
11 point of timing, just with pipeline 1 versus pipeline 2 --
12 and Representative Baker raises some very interesting
13 questions there as to how that's going to be assessed.
14 But once again, with regard to timing, the idea is to do
15 that assessment with regard to Lander and these other
16 districts and to have something for us this coming
17 session, ideally.
18 REPRESENTATIVE BAKER: Correct.
19 COCHAIR DEVIN: That is in the works and
20 consulting -- the consultant has been given the latitude
21 to use the expertise to get that in line.
22 SENATOR CATHCART: Madam Chair, regarding
23 adequacy, I see that our pipeline projects -- we're in
24 transition. We're going from one system to a very
25 different system, and I don't think that pipeline 1 or 2
92
1 or any of those are all going to be treated exactly the
2 same. As we resolve through this transition, I think
3 finally adequacy will be determined by the standards set
4 by this commission.
5 But in the transition we have to do the best we
6 can and all recognize that there's certainly going to be
7 some differences between what JAC may determine as
8 adequate and what ultimately comes out of the commission.
9 But I think we have to struggle through that in this
10 transition. Any guidance that we could get from this
11 committee would certainly be helpful.
12 COCHAIR DEVIN: And the guidance that we
13 do have thus far is that the Court has said that the new
14 standards can be used and they are within the regional
15 area, the regional average within 10 percent. Some of
16 them exceed the regional average, but the regional
17 average, because it is an amount near -- is in excess of
18 some national averages but that's accepted and that we
19 know. We're trying to define some capacities and things
20 in this bill which will be a piece that goes to that.
21 We have a lot of pieces in place, but I think
22 there will be other pieces evolving.
23 And it was our -- and I will say it was in
24 discussion with a number of people it was kind of an
25 intent to leave these pipeline 1 with the JAC where we
93
1 placed them before because they have been dealing with the
2 consultants and the contract to try to get some of these
3 sorted out.
4 Also, by this opinion we've now got to separate
5 the standard from the enhancements in these projects,
6 which has been kind of a new challenge that's come.
7 But we didn't pull them into this transition
8 piece because we felt like they were on track and would
9 keep moving. So we've tried to address the second two in
10 here to assure that they will keep moving while we're
11 trying to get the commission up and going.
12 REPRESENTATIVE SIMPSON: Madam Chair.
13 COCHAIR DEVIN: Representative Simpson.
14 REPRESENTATIVE SIMPSON: With the JAC work
15 on this and in light of this transition process, is the
16 JAC aware that it is possible that they could be creating
17 an adequacy standard themselves that may be different,
18 certainly will be different than the one set by the
19 commission?
20 And to protect the State in that process are you
21 looking at language that whatever you appropriate or
22 whatever you do, that it notes specifically that these are
23 transition projects and that your work is not setting an
24 adequacy standard, you're just in a transitional standard?
25 I wouldn't even call it an adequacy standard. But you're
94
1 using expert testimony.
2 The JAC and the legislature has to be careful to
3 clearly define what standards you're using to determine
4 what you think might be adequate and what the legislature
5 thinks is adequate in the transition because I can -- you
6 know, I can just envision all kinds of legal arguments
7 about well, the Joint Appropriations Committee and the
8 legislature set a standard and that the commission -- that
9 the commission standard is now different. I don't know
10 how you deal with that because I haven't put much thought
11 into it but that's probably a question that the AG ought
12 to address, if they haven't already. Maybe they have.
13 MR. NELSON: Madam Chair, the AG did
14 provide some light on that in that the -- specifically the
15 pipeline 1 projects and their remedies by stating that the
16 basic remedy to change that would be difficult for the
17 legislature at this point because of the time and how it
18 occurs in the sync of things and that the basic remedy
19 itself probably should carry forward unless there is a
20 pretty high level of need to alter that remedy, I guess,
21 is how we kind of phrase that.
22 So I think he did indicate that how they
23 proceeded to address the inadequacy, the remedy itself
24 probably would be difficult to change, not to say if you
25 can't tweak the remedy, but to go in and change the remedy
95
1 from, for example, a replace to a repair would be
2 difficult. The legislature would have to show a pretty
3 compelling need to modify the initial remedy.
4 So I think there is a little bit of guidance on
5 that, but that's not to say that there's not room in there
6 to tweak the remedy, so to speak, to set or to alter the
7 replacement.
8 COCHAIR DEVIN: That was certainly my
9 understanding, probably, we proceeded on replacement on
10 those buildings -- if -- it would probably be perceived --
11 without a very compelling reason, it would probably remain
12 replacement but the modifications of that had some --
13 Representative Baker and then Senator Cathcart.
14 REPRESENTATIVE BAKER: I think the thing
15 I'm struggling with the most is the determination of what
16 in a building that has been in the planning process for
17 two years, and Lander comes immediately to mind, in that
18 building is local enhancement and what is the necessary
19 part to adequately teach to the standards.
20 And that to me is -- I mean, it is very clear,
21 Lander is, if you will, going forward, but the line
22 between that local enhancement and what is adequate to
23 teach to the standards is probably going to be -- could at
24 least be potentially -- well, in all of those five
25 projects, and I'll include Lander in those five, that is
96
1 going to be the rub, if you will, in two weeks when we're
2 talking about this very issue.
3 COCHAIR DEVIN: It will not necessarily be
4 an easy issue.
5 Senator Cathcart.
6 SENATOR CATHCART: Madam Chair, as a
7 member of the Appropriations Committee I'm really
8 sensitive to the comments Representative Simpson made
9 because I hope that Appropriations doesn't get in the
10 business here of setting the standard and some sort of a
11 transitional standard or something.
12 But as a member of that committee I would be
13 very reluctant to, let's say, develop a standard for these
14 pipeline projects that conceivably would be less than what
15 is going to come out of the commission, because then I
16 think we do in fact set ourselves up for legal problems.
17 And regarding the standard, once the commission
18 develops standards, I think over time and as things become
19 necessary, I think the commission may ultimately change
20 those standards as time goes on. I'm not sure that that
21 would always set up a legal situation. I would hope the
22 Court would be very -- look at those sorts of things very
23 carefully.
24 But I doubt seriously that the Joint
25 Appropriations Committee is going to develop a standard
97
1 for these pipeline projects that would be significantly
2 less than what may come out of that commission. I think
3 we're going to be very sensitive to that.
4 COCHAIR DEVIN: I think that they will be
5 too, but I think you're also right, we've actually given
6 authorization in this bill that over time they decide what
7 becomes, you know, a part of standard, what's appropriate
8 and they decide whether it does or not.
9 REPRESENTATIVE SIMPSON: Madam Chair, one
10 more comment on that. In statutory interpretation and, I
11 guess, agency authority interpretation, the State can set
12 a standard -- and you can view it in light of federal
13 standards and state standards. The States can set a
14 standard that is stricter than a federal standard but
15 cannot exceed the federal -- maybe I'm confused on that.
16 I think it is the other way around. But what Senator
17 Cathcart said seemed backwards to me.
18 SENATOR MASSIE: That's because he's in
19 the Senate.
20 REPRESENTATIVE SIMPSON: You have to be
21 careful in setting a standard that may be exceeded by the
22 commission, or are you saying that the JAC might set a
23 standard that you don't want the commission to exceed
24 because you're saying that you want to be at least as
25 generous as the commission might be in setting the
98
1 standard?
2 Maybe I'm just garbling it all up.
3 COCHAIR DEVIN: I'm going to ask that we
4 limit a little bit of this since this transition amendment
5 doesn't include those projects. I want you to know what
6 is happening to them, but these might be best saved for
7 discussion this afternoon and if our counsel is here to do
8 that.
9 Let's go ahead on this transition amendment and
10 see if we can get it wrapped up before lunch.
11 MR. NELSON: Okay. Again, subsection (b)
12 is the review of the Powell project and we've pretty much
13 gone over that.
14 The next section deals with, as Madam Chair
15 pointed out, the immediate needs list presented to you
16 this fall. That process, to keep the timeline going and
17 to keep those projects in the loop -- what this process
18 does, it brings in the existing expertise of the state
19 superintendent and directs them to start to commence a
20 review of these inadequacies and to begin developing a
21 remedy for these inadequacies until such time as the
22 commission becomes an acting force and can deal with these
23 issues.
24 So the state superintendent then, as soon as
25 this bill would pass, would start looking at these
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1 identified inadequacies and begin its review and analysis
2 and then transition that into the commission with the hope
3 that the commission is on board and running by next fall.
4 And I know that's a big hope, but anyway, that's
5 part of the thinking.
6 Such that a plan could be brought on these
7 projects to the 2003 legislature. This would allow the
8 state superintendent to obtain the professional expertise
9 to go out and assist with developing remedies for these
10 problems and then to work that into the commission as soon
11 as it is up and running.
12 And that essentially involves language under
13 subsections (c) and (d). (d) would be requiring the state
14 superintendent to work with those districts as necessary
15 and to have them cooperate with the commission as
16 necessary to develop a remedy.
17 It would also keep alive the emergency
18 provisions until such time as the commission is capable of
19 overtaking that program, and so you would have something
20 in place in case there was a catastrophic event or
21 something that would require emergency situations.
22 In that sense it keeps -- the other important
23 aspect that this does in subsection (c) is that it
24 authorizes the state superintendent, the governor and the
25 commission, to the extent it can get involved, to commence
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1 the very important work of working with districts in
2 developing their local facility plan. Because we put some
3 very rigorous timelines on these, and we've required that
4 the districts must develop these plans and get them in to
5 the commission by July 1, '03. So to get to that level,
6 criteria and guidelines have to be established at the
7 state level for the districts to go use in developing
8 their own district plans. And also we need to get some
9 assistance to these districts to get the necessary
10 expertise to help them develop their specific facility
11 plans and get all of that back in by July 1.
12 So this also kind of addresses that, gives the
13 authority to the state superintendent and the governor to
14 commence this work on behalf of the commission until such
15 time as it is in a position to take this very important
16 task over.
17 So that -- as you see in the bold and cap,
18 that's the language that was added in to try to give more
19 clout, and again, we also imposed some of the thinking
20 under the bill into this to require the state
21 superintendent in looking at these inadequacy remediations
22 to first consider major maintenance payments to see how
23 much of the identified inadequacy can be alleviated or
24 remedied through major maintenance payments and then to go
25 on through the process that we've outlined to then look at
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1 the minor capital outlay level of addressing inadequacies
2 before then you get to the major.
3 So it kind of gave the state superintendent some
4 direction on proceeding with these remedies to these
5 identified inadequacies to the tone set in the bill when
6 they're exploring these prior to transitioning into the
7 commission.
8 And the remainder of that is pretty well what
9 was in the bill before. The transfer of the assessment,
10 the transfer of the adequacy standards, all of that was
11 already thought out in the bill.
12 One important thing I didn't bring up and I
13 probably should was that we felt that the state
14 superintendent should report progress to this newly
15 created Select Committee on school cap con so that they
16 could be -- give some feedback to the development of
17 remedies, so we kind of brought them into the process also
18 until such time as the commission is up and running, so
19 that was kind of additional thought over and above that.
20 There is a cost to all of this, and that's what
21 we'll bring out to you next.
22 So you'll note that in a lot of these
23 appropriations sections on pages 6 and 7, there were some
24 Xs. This would fill in the Xs. But essentially based
25 upon input from MGT, from the state department, from
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1 Mr. Keith Curry, the finance expert to the state
2 treasurer, we've kind of roughly, roughly put together
3 some thoughts on costs of doing all of this.
4 First of all, for the Powell project, to provide
5 the Appropriations Committee with expertise to develop a
6 remedy to the Powell project, rough is estimated around
7 100,000.
8 To develop assistance to the governor and the
9 state superintendent to assist with providing remedies to
10 the identified immediate needs list, that's roughly
11 estimated at 650,000.
12 To assist districts with facility plans, this
13 $1 million would go to the districts to help them meet the
14 costs of developing these facility plans, and this
15 would -- this would be an initial cost. It would be
16 ongoing to some extent, but the million dollars would be
17 kind of the first step, the first, initial cost in
18 starting this process going.
19 So it is going to be pricey. That's the reason
20 it is so pricey. But it is based upon providing them the
21 expertise that they would need to assemble a facilities
22 plan.
23 The 300 grand would be -- no, the 150 grand
24 would be what would be necessary at the state level to
25 develop the criteria and the guidelines for these district
103
1 plans and also to get the money out to the districts, to
2 allocate it to the districts on some rational basis to
3 initiate their planning efforts.
4 The commission start-up is the 360. That would
5 be what would be necessary to -- assuming that the
6 commission gets running in September, that would be enough
7 to fund an executive director, to fund some office staff
8 and to fund commission meetings. That's essentially what
9 that's all about.
10 The 90 grand is an estimate to help put together
11 some financing recommendations for the 2003 legislature.
12 So there's quite a chunk going to the governor's
13 office, which would also be shared by the state
14 superintendent as necessary for that office to assist the
15 commission until it is up and running.
16 The 500 grand is the emergency contingency
17 account which is just an appropriation from within the
18 school capital construction account.
19 And then the 40 grand would be enough to
20 start -- that's to fund the Select Committee, and I think
21 that would -- that's going beyond just next summer. That
22 would continue that process well into the upcoming
23 budget -- the biennium. But that would be some advance
24 funding to get it going in time sufficient to respond to
25 some of the needs of the state superintendent and the
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1 governor as they start implementing the transition
2 process.
3 So it is a pricey thing. It is in excess of $3
4 million. Again, these are rough wags, very roughly put
5 together, but trying to give you some idea of the
6 magnitude of this process.
7 COCHAIR DEVIN: I appreciate your doing
8 that in the time you had because I asked Dave for as much
9 information as he could give the committee.
10 REPRESENTATIVE BAKER: Madam Chair, some
11 of the districts -- I'm aware that Natrona County is
12 finishing up a ten-year plan that they've been doing.
13 I wonder, how would these district dollars be
14 expended? How would they be allocated?
15 MR. NELSON: That has to be determined.
16 We've got some preliminary guidance that it would have to
17 vary between the size of the district, the number of
18 buildings. Those sorts of things would be crucial. And
19 there may be other factors, but at this point I think we
20 need guidance on that and that's why we're allowing that
21 to be developed.
22 REPRESENTATIVE BAKER: Madam Chair, to
23 follow up, what about districts that have already
24 developed the facilities, they have them in place? Would
25 we just give them nothing or --
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1 MR. NELSON: In response, certainly
2 Mr. Cromwell can respond better than I can. I would think
3 off the top of my head they may not meet, first of all,
4 state guidelines or state criteria for that. They may
5 have to be revised.
6 Secondly, that would have to be considered. I
7 mean, some of them may have done a lot of the initial work
8 that would be necessary to establish those. That's going
9 to have to be looked at almost on a district-by-district
10 basis, and that's why we put some money in there to obtain
11 that expertise and to assist the state in putting together
12 that criteria and that distribution mechanism.
13 COCHAIR DEVIN: Yes, go ahead.
14 REPRESENTATIVE BAKER: One more question.
15 Why do you have a financial advisor when capital finance
16 seems to be -- that's supposed to be their job? I mean,
17 we kind of hand it to them, this is our Taj Mahal, you pay
18 for it, right?
19 MR. NELSON: What our thought process was
20 that under the way that we -- the Select Committee has put
21 this package together, it is -- it is that the commission
22 would develop the financing, that it would not go to the
23 SLIB, if there is a super board -- we don't know that yet.
24 But under this process we're assuming that the commission
25 would put together the financing recommendations to the
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1 legislature, so that would provide them some expertise on
2 developing a financing plan for whatever remedies are put
3 together on the immediate needs that they would present to
4 the legislature in the 2003 session.
5 That may be more than adequate. You just got
6 that from State Treasurer Lummis, to give us an idea as to
7 what that would cost if they need to borrow the state's
8 consultant to put together some recommendations for the
9 2003 legislature. So that's how that was derived.
10 COCHAIR DEVIN: Yes.
11 SENATOR MASSIE: Madam Chair, on that
12 particular topic, the same thing occurred to me as with
13 Representative Baker, that particular language has been in
14 statute now for a few years and it was with the Department
15 of Education before to develop a financing package that
16 would go through the governor and to the Joint
17 Appropriations Committee. So that's been going on for a
18 few years now, or it has not been?
19 MR. NELSON: Supposed to have been, yeah.
20 SENATOR MASSIE: Supposed to have
21 been? Perhaps. So I guess maybe that answered my
22 question in that if there was already an existing process,
23 existing expertise within state government that has
24 already started doing that, I was wondering if this new
25 commission actually had to create it again, if there's
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1 already something in state government that's been doing
2 this.
3 COCHAIR DEVIN: Mary Kay, did you want to
4 answer?
5 MS. HILL: Madam Chair, I could answer
6 that.
7 Senator Massie, that requirement that the state
8 superintendent provide financing alternatives was
9 superseded to a certain extent by a footnote that required
10 for those Upton, Newcastle projects that cash be paid for
11 those.
12 So the question of financing has not arisen
13 really until this round of projects. And again, what the
14 legislature did in the last session was go on a cash basis
15 for those. So the expertise as far as the financing,
16 lease/purchase bond issues has never been officially
17 cultivated within state government under any scenario.
18 And if I could, Madam Chair, take just a second
19 to talk about the Casper ten-year plan, Casper did do a
20 ten-year plan for its facilities, but it did not
21 necessarily bear a direct relationship to the immediate
22 needs as had been previously identified through the needs
23 assessment.
24 So the distinct difference in the funds that
25 would be appropriated to school districts through this
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1 appropriation is that those plans would be required to
2 connect directly to the needs assessment that the State
3 has conducted and the remedies for those as prescribed by
4 the Court.
5 So what Casper did is good and is helpful but is
6 not necessarily on task with what we're now being required
7 to do.
8 COCHAIR DEVIN: Representative Baker.
9 REPRESENTATIVE BAKER: I want to follow up
10 with one thing. If we are tasking a commission with
11 setting up advisors and financial advisors on how to
12 answer this, then the subject has been tasked to two
13 different places. Capital Finance is -- at least believes
14 itself to be clearly doing this job right now.
15 I would say that there may need to be some
16 coordination between what that committee and this
17 committee is doing, and maybe it is my fault if there's
18 not because I do sit on Capital Finance.
19 But it is -- yes, and Colin does, too. So I
20 think -- and clearly, there should be some financial
21 advice, but it is a good wag, but I think it is a little
22 high.
23 COCHAIR DEVIN: Did you have a comment?
24 MR. NELSON: And, Madam Chair, I think --
25 I'm taking the words out of your mouth. I think you were
109
1 getting ready to say what I was going to say, so I'll let
2 you go ahead and say it.
3 COCHAIR DEVIN: Well, I think that
4 clearly, you know, that this piece needs to be there
5 somewhere and I have -- I don't think this committee
6 has -- this committee needs to bring to the attention the
7 fact that this is a very big ticket item and you need to
8 have this expertise somewhere. Whether it sits in our
9 bill or it sits in another bill is not of great concern to
10 me. If it gets lost through the cracks and we don't have
11 the expertise there to put this together, then I think
12 that does become a concern.
13 So -- and whether that figure is 20,000 too high
14 or too low, I couldn't tell you that piece, but I think
15 somewhere in order to bring it to the Select Committee I
16 would hope it would come to the Select Committee with some
17 financial options so that they could look at that package
18 before they bring it to the legislature and then as it
19 goes to -- as it goes to the legislature you've got that
20 study to piece out there. Now, whether it comes from one
21 committee or another, I don't have a feeling, but right
22 now I don't know that it is anywhere else.
23 I mean, it is certainly not in the current
24 process is what we were able to identify, I think, and so
25 then we've got to move it along somewhere. So if we move
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1 it along here, it can always be dropped if it comes along
2 somewhere else. And I certainly have no territorial stake
3 to it nor do I care, I just care that it gets done one way
4 or the other. So I guess whatever comfort level you have
5 with that.
6 Okay. Any -- so do we need to actually
7 appropriate an amount into this piece?
8 MR. NELSON: Yes.
9 COCHAIR DEVIN: I wonder if we might deal
10 with the discussion -- then if we might just go back
11 without the appropriation at this point in time and go to
12 the transition amendment. The actual technical pieces of
13 that transitional amendment, as I said, you have a copy
14 of, but the written-out form you have, and if you feel
15 comfortable that this moves along our pipeline 2 and our
16 pipeline 3 projects so that they will continue to get
17 attention in the transition, we keep the lines of
18 responsibility clear on who is to be acting and what
19 they're to be doing and enough parameters that they can
20 get the job done that it is going to keep moving.
21 And is there further discussion on that?
22 Is there a motion that we -- for the transition
23 piece that you have before you?
24 REPRESENTATIVE BAKER: Move.
25 REPRESENTATIVE SIMPSON: Second.
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1 COCHAIR DEVIN: Motion and second.
2 Any further discussion? And then I'll come back
3 with the financial part of it.
4 All of those in favor, aye.
5 Those opposed.
6 Okay. Then we have within this an appropriation
7 piece that needs to be attached in place of the Xs which
8 is the $3,190,000 estimate at this point. And I did ask
9 the staff to try to pull this together because I know that
10 this committee may not have another meeting. We may well
11 be able to wrap our work up on these two bills that we
12 have before us, and I felt like it was only fair that you
13 have some financial figures to deal with before you pass
14 the bill so I know they've had to do it with some degree
15 of rapidness.
16 SENATOR ANDERSON: Madam Chair, question
17 of staff: Being on Appropriations, we will see this
18 again. When this comes again, will these figures be any
19 more solid or will there be additional information or
20 where will we be with that when it comes?
21 MR. NELSON: I think that here's the man
22 that can tweak them for us. I put him on the spot and so
23 I think, in all fairness to Dodds Cromwell and probably to
24 the state superintendent, because they did this in rapid
25 time also, that we could certainly get a better handle on
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1 that, you know, between now and the session.
2 COCHAIR DEVIN: At least if the figure
3 remains at this level we will have justification for the
4 breakdown.
5 MR. NELSON: Exactly.
6 SENATOR ANDERSON: If I could, I would
7 like to request that.
8 MR. NELSON: We would be happy to.
9 COCHAIR DEVIN: And it really came down to
10 the fact that we either tried to put this together at this
11 point or we were going to have to have another meeting and
12 I thought it made more sense to try to put something -- at
13 least the pieces together, and if you philosophically have
14 a difference with any of the pieces that we don't pay for
15 some of this or we do pay for more, I guess this is the
16 time to bring it up. Otherwise I would like a
17 consideration of putting an amount in this bill.
18 SENATOR MASSIE: Madam Chair, I move to
19 adopt.
20 COCHAIR DEVIN: There's a motion.
21 Is there a second?
22 REPRESENTATIVE ROBINSON: Second.
23 COCHAIR DEVIN: There's a motion and a
24 second that we place the appropriation of $3,190,000 in
25 the bill at this point in time, recognizing the request
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1 for further data.
2 Any more discussion?
3 All those in favor, aye.
4 Those opposed, no.
5 Okay, that motion carries. And we have that
6 transition amendment done.
7 I have in my possession one other amendment and
8 that was the one asked for when we presented to the big
9 committee of about 40 people, and that was that we develop
10 some building prototypes that are available.
11 And I think we'll go ahead and take our lunch
12 break. We can consider that -- I assume you're going to
13 want to discuss this?
14 COCHAIR SHIVLER: Yes.
15 COCHAIR DEVIN: So shall we take that up
16 after lunch? And then we have the one question whether we
17 wanted to leave the issue of building schools in there.
18 Are there any other amendments that need to come before
19 the committee?
20 SENATOR MASSIE: I have a couple.
21 COCHAIR DEVIN: You have a couple? All
22 right. We will consider those after lunch, then.
23 And let's reconvene at 1:15. That gives us an
24 hour and 15 minutes. I think that -- Dave, our agenda for
25 this afternoon is the one bill and then what time does
114
1 Mr. Hunkins intend to be here?
2 MR. NELSON: He will be here between 2:00
3 and 3:00.
4 COCHAIR DEVIN: The report from the state
5 treasurer, then, do we have a time schedule on that?
6 MR. NELSON: She will not give that report
7 and so she's unable to make it today and neither could
8 Keith Curry make it. So that's kind of off the agenda.
9 COCHAIR DEVIN: That will be off the
10 agenda but Mr. Hunkins is on the agenda. I didn't clarify
11 that at the beginning. That should give us sufficient
12 time this afternoon if we take lunch to 1:15.
13 (Hearing proceedings recessed
14 11:55 a.m. and reconvened
15 1:25 p.m., November 29, 2001.)
16 COCHAIR SHIVLER: I think Irene and I had
17 talked about having Mr. Hunkins give his appraisal first,
18 and then we'll discuss this school capital construction
19 bonding and also the other amendment we have.
20 MR. HUNKINS: Thank you, Mr. Chairman.
21 May I pull up a chair?
22 COCHAIR SHIVLER: Cochairman suggested I
23 warn you, this is new to some of us because we haven't
24 been home.
25 MR. HUNKINS: All right. Well, it is my
115
1 understanding that you've all been provided with a copy of
2 it. Some of you have had a chance to read it and some of
3 you haven't.
4 I think that for those of you that have read
5 this memo, the opinions expressed therein I hope are
6 self-explanatory. Essentially I have indicated what I
7 believe is the appropriate answer to all of the questions
8 posed by the deputy superintendent of schools, Joe
9 Simpson. And the two items that I was told by the LSO
10 staff are of particular interest to you have to do with
11 existing legislation, that is, the bond guarantee program
12 and the mill levy supplement program.
13 And if I could just capsulate those opinions for
14 you and then perhaps the best way to take advantage of
15 your time and mine would be to answer questions that you
16 might have.
17 It is my opinion, and I think that I speak on
18 behalf of the Attorney General's Office -- in fact, I know
19 I do, that the mill levy supplement program has been ruled
20 unconstitutional and there is not any way to resurrect it
21 given the Campbell decisions. But it is still on the
22 books, so something needs to be done with it preemptively
23 in order to hopefully not invite litigation over the issue
24 of whether or not the mill levy supplement in some vestige
25 is still available.
116
1 Secondly, with regard to the bond guarantee
2 program, that has been a very useful program in most
3 school districts that have passed bond issues; however,
4 because of the Campbell decisions, we're in a situation
5 now where the State of Wyoming has been mandated to
6 provide for all of the needs of all of the school
7 districts in this state, and the legislation that is the
8 bond guarantee program provides absolute discretion in the
9 State Land Board to either guarantee or not guarantee, but
10 one of the criteria that you all set up years ago when
11 this was passed was need.
12 So with need as a criteria, and with the Supreme
13 Court stating that all needs will be provided by the
14 State, it is not a great leap of logic to come to the
15 conclusion that needs -- that the State Land Board would
16 not be able to exercise their discretion to provide for a
17 bond guaranty because by definition under our
18 jurisprudence there isn't going to ever be a situation
19 where need is unsatisfied and need can be provided by
20 local bond issues.
21 This raises an issue with regard to your
22 pipeline projects which I also opine about in here,
23 and that's this: In some instances bond elections were
24 held prior to October the 2nd, 2001. They were held,
25 arguably, on the premise that the bond issue needed to be
117
1 passed in order to provide for the needs of the district.
2 When the Supreme Court came out with their
3 October 2nd opinion on rehearing, they said a couple of
4 things relevant to that issue.
5 They said, first of all, as I mentioned, that
6 need was going to be the responsibility of the State; and
7 secondly, that enhancements, which are left undefined but
8 could be defined as any wish over and above need, can be
9 bonded for by the local districts.
10 It occurred to me -- and I checked it out with
11 some people that are familiar with the bond community in
12 Wyoming, that is, underwriters, representatives of
13 underwriters and people that function as bond counsel --
14 whether this was a cause for concern or not for these few
15 districts whose election predated October the 2nd but who
16 didn't get around to issuing the bonds until after October
17 the 2nd, or perhaps they're not even issued now.
18 The Supreme Court had a bright line in its
19 October 2nd decision. That bright line was any bonds
20 issued prior to our opinion, they said, remain in full
21 force and effect and are valid. They didn't specify which
22 opinion they were talking about, but going back and
23 reading the WEA brief with which -- which prompted the
24 Supreme Court to make this clarification, and looking at
25 all of the opinions together and reading them together, I
118
1 think it is pretty clear that the opinion they were
2 talking about was the February 23rd original Campbell III
3 opinion.
4 So if that is, indeed, the case, then one can
5 conclude that any bond that was not issued prior to
6 February 23rd could be subject to a collateral attack by
7 either taxpayers or bondholders or both, at least the
8 possibility exists.
9 So what I said in this opinion was -- or
10 suggested was that for those few districts where that set
11 of circumstances exists, they should be notified and they
12 should be requested to alert the bond underwriter, the
13 bond counsel and ask an opinion as to whether or not there
14 is a problem.
15 I am told by people that know far more about
16 this area than I do that it is a problem and that bond
17 counsel may very well determine that the safest thing to
18 do in order to make these bonds marketable would be to go
19 back and have an election, another election where the
20 cards are out on the table post-October 2nd, and the
21 citizenry, the electorate, are being told the State is
22 going to provide for our needs and what we want to bond
23 for is an enhancement in the form of a swimming pool or
24 extra seats in the auditorium or whatever it is, and we
25 want you to pass this bond on the basis that -- on that
119
1 basis and not on the basis that we implied in the notice
2 of bond election and on the ballot which was that we
3 needed this to provide adequate facilities for our school
4 district.
5 So those are some of the highlights of what's in
6 this memorandum, and with that, Mr. Chairman, I would be
7 happy to take any questions.
8 COCHAIR SHIVLER: Representative Baker.
9 REPRESENTATIVE BAKER: Thank you,
10 Mr. Chairman.
11 As we have gone forward, Mr. Hunkins, there's
12 some considerable frustration out there in the communities
13 that have passed elections and they see -- they've
14 developed plans, they've gone forward to this point, and
15 some of them seem to be saying to me, "We're willing to go
16 ahead and run with our bonds and commingle our money with
17 yours, if you will, and forget the fact that the Supreme
18 Court said that you don't have to. We're willing to go
19 ahead and do that," and this isn't yet a formal offer but
20 it seems to be floated out there as a possibility.
21 You're suggesting that, number one, we first in
22 that circumstance have to get a good opinion from bond
23 specialists and bond counselors as to whether that is even
24 legal, is that accurate?
25 MR. HUNKINS: Representative Baker, I
120
1 think that's a fair summary. Essentially what I did was
2 pass the buck. It is not really my prerogative to advise
3 anybody about the marketability of bonds. That's not what
4 I've been asked to do. I have raised a red flag because
5 of what people familiar with bonds tell me.
6 And it is not an issue of let's just forget
7 about it and go forward. It is an issue of whether in the
8 opinion of the people who are going to sell these bonds
9 there is a serious potential defect that could be brought
10 by a disgruntled taxpayer or a bondholder or some other
11 interested party that the election held on these bonds was
12 defective because the full hand wasn't laid down on the
13 table.
14 And lo and behold, when the seventh card came
15 up, it was hey, we don't really have to do this. We don't
16 really need this, and we're obligating the taxpayers to
17 pay off 100 percent of -- not 100 percent but a percentage
18 of this project when the State has been told to do it.
19 REPRESENTATIVE BAKER: Mr. Chairman, so,
20 in effect, the State may well be obligated, if that offer
21 is even made -- the State ought to look at it with some
22 skepticism because of the ability to interdict the sharing
23 if such a proposal was even put on the table.
24 COCHAIR DEVIN: Mr. Chairman, that's
25 right. The safest course of action for those that are
121
1 concerned about the expenditure of the State's money or
2 the local portion of the money is to call this to the
3 attention of the people who have responsibility for the
4 bonds and let them make the call.
5 They may disagree, and if they do, that's fine.
6 I don't think it is a legal problem that arises and that
7 implicates anything that the State is doing or could do.
8 I think it is a legal problem that arises because and only
9 because of the bond election that was held under one set
10 of assumptions and the bond issuance that comes under
11 different set of assumptions.
12 And any of those in this room that are familiar
13 with the construction process can imagine the claims that
14 could arise on a project where an injunction is issued to
15 prevent the sale of those bonds or the distribution of the
16 bond proceeds. Imagine with me that the contract has
17 already been let, that the contractor has mobilized and
18 all at once he's served with a copy of an injunction and
19 we're looking at a delay, at a minimum, before he can
20 proceed.
21 Or imagine that he's on the job and already
22 started the job and delay. You may remember, Senator
23 Cathcart, that happened up at the Laramie River Power
24 Station back in 1980, I think, or '81 when a federal judge
25 in Nebraska issued an injunction to prohibit the continued
122
1 construction of Grayrocks Reservoir because of the
2 Nebraska whooping crane. That's how I got into the
3 construction litigation business.
4 And it wasn't a pretty sight because all of
5 those contractors were setting there with their meters
6 running but the owner had to shut them down. And it was a
7 mess.
8 And what I'm saying is that because of this
9 circumstance -- this is a one-time thing. It isn't going
10 to happen again. But because of this circumstance, let
11 these folks that are issuing these bonds know that there's
12 a potential problem and let them make a decision as to
13 whether they want to take the risk or not.
14 COCHAIR SHIVLER: Representative Baker.
15 REPRESENTATIVE BAKER: I want to follow up
16 on that just a second.
17 The -- one of the districts, as you may very
18 well be aware of, in the last recent history, two weeks,
19 has begun to issue some bonds, if I'm not correct. Is
20 that --
21 COCHAIR DEVIN: Mr. Cochair, it was my
22 understanding that Lander had begun to issue bonds in the
23 last --
24 REPRESENTATIVE BAKER: Within the last two
25 weeks. So we have a situation here where we have actually
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1 appropriated over 80 percent of the money to that project,
2 around 80 percent. No contracts have been let yet, but
3 they're at risk now -- well, you don't know what any of
4 those potential litigants could do, but they could
5 literally hold that hostage, if you will, and that's the
6 concern you have as we go forward; is that right?
7 MR. HUNKINS: Right, Mr. Chairman.
8 COCHAIR SHIVLER: Madam Cochair.
9 COCHAIR DEVIN: You know, your discussion
10 raises a question for me because I was clear on the issue
11 that the districts may have a problem and the districts
12 and their bond counsel and their boards needed to make
13 some decisions as to whether they had the good faith of
14 the people without -- and the backing, legal backing, for
15 that bond and to the purchasers, et cetera, if they didn't
16 go back for another election because that happened in my
17 community on another issue.
18 So it was not schools, but it was wishing to use
19 that money for a slightly different purpose than had been
20 stated on the ballot, and we, in fact, did have to go back
21 for another election to approve a change in the use of
22 that money.
23 Now, I came to understand through the reading of
24 this that that was the district's issue and their problem
25 with their bond counsel and their boards that they needed
124
1 to resolve.
2 But your discussion with our Appropriations
3 chair raises in my mind the question of whether this then
4 becomes a problem for the State if we, in fact, agree to
5 go forward on a project that is a part standard building
6 plus enhanced building. So if we go forward, does that
7 then become a problem for us also, because having been in
8 more than one circle of these bond legislations and suits
9 and what have you, I can tell you they're not fun and
10 they're lengthy. They can take up to three to five years
11 to settle, and that's a long time.
12 So have we got risk if we move forward in a
13 project with them, above and aside from this?
14 COCHAIR DEVIN: Mr. Chairman, Senator
15 Devin, I think that is an accurate statement. And my
16 opinion would be some risk, not liability risk. I don't
17 see the State having any liability to anyone. But
18 exposure for a more expensive project than anticipated,
19 that's how I see the risk.
20 Now, there is always that risk in any
21 construction project that there may be a claim or there
22 may be a condition that -- underground that no one knew
23 about and it creates more expense, and therefore, the
24 possibility of additional appropriations. That's just
25 part of the construction business.
125
1 But here I think that the risk that the State
2 would have, I believe, would be greatly diminished if
3 these districts were informed of this opinion and
4 requested to consult with the bond underwriter and the
5 bond counsel over the risk and over this memorandum.
6 COCHAIR SHIVLER: Mr. Hunkins, so your
7 recommendation or what you're saying would probably be the
8 best thing for them to do is get in writing, obviously,
9 something from these underwriters that this is okay, or if
10 that's not forthcoming, just hold a new election? I mean,
11 that would be the other option if they wanted to do this?
12 At that point it would be enhancement, wouldn't it, new
13 election bonding would be an enhancement?
14 COCHAIR DEVIN: Yes, by definition it
15 would be an enhancement. And perhaps some of these
16 districts, you know, don't have any enhancement in mind.
17 I don't know any of the details about the specific
18 projects. But I do know that there is this issue out
19 there, and I'm told by people that swim in that tank
20 regularly as part of making a living that if they were
21 asked, they would request -- require a new bond election.
22 I've been told specifically that that is the safest thing
23 to do. And one thing I've learned about bond underwriters
24 and bond counsel is that they are very conservative in
25 their outlook. They don't want any risk.
126
1 COCHAIR SHIVLER: Yes.
2 MR. NELSON: Mr. Chairman, it is my
3 understanding that these districts have been notified.
4 Upon receipt of this decision or this opinion, the state
5 superintendent notified districts of this potential
6 problem and so the districts are aware and were asked to
7 consult their bonding counsel to get the status of the
8 bond issues. So the word has gotten out.
9 COCHAIR SHIVLER: And they're going to let
10 us know?
11 MR. NELSON: I don't know if they're
12 planning to do that.
13 MS. HILL: Mr. Chairman, the memo sent to
14 the district superintendents included the instruction to
15 share Mr. Hunkins' memo with bond counsel immediately.
16 Beyond that there wasn't any further communication. If
17 you would like us to follow up with districts to find out
18 how they resolved that, each of them individually, then we
19 can certainly follow up.
20 COCHAIR SHIVLER: The question that comes
21 to my mind, can we withhold State funding until they give
22 us some assurance that this isn't going to happen.
23 Because you're certainly correct, if they tie the project
24 up, we have state money at risk and time, that would be an
25 effect on the state. So wouldn't we have some kind of
127
1 latitude there we could say, "Give us assurance this is
2 taken care of," before we release the funding? Would
3 there be a problem with that with the court?
4 MR. HUNKINS: The Wyoming Supreme Court, I
5 don't think so in light of the opinion that's been issued.
6 COCHAIR SHIVLER: I don't imagine a
7 district not wanting to know this. At any rate, they have
8 been notified. Perhaps we should follow that up with a
9 letter saying, "After your notification what have you
10 found out? What's your remedy for this?" We don't need
11 an amendment for that, do we?
12 MR. NELSON: No, in fact, Mr. Chairman,
13 that should probably be more a consideration of the Joint
14 Appropriations Committee who is dealing with the specific
15 projects, and I hate to dump on them.
16 SENATOR MASSIE: Mr. Chairman, to be
17 exact, the three school districts affected by this is
18 Worland, Lander, Buffalo, and Natrona hasn't done a bond
19 issue. They won't know what the bonded obligations are
20 until after the March session. I mean, the legislature --
21 the Joint Appropriations Committee's review and the
22 legislature may very well approve or come to the
23 conclusion that everything that was put out for bond and
24 approved by the voters is something the State should
25 cover.
128
1 So there may not even be any bonded indebtedness
2 in these three areas, but any difference that's there are
3 for enhancements and those are bound to be significantly
4 less, I would assume at least in maybe two of the cases,
5 than what is actually out there.
6 MR. NELSON: With the exception, I think,
7 Lander has issued their bonds. My understanding, they've
8 even got them guaranteed. I mean, they've went that far.
9 So, I mean, they proceeded down the road already.
10 COCHAIR SHIVLER: Representative Baker.
11 REPRESENTATIVE BAKER: While we're in this
12 subject area, would it be your recommendation that in
13 these cases that some decision by the State should be made
14 as to what in these ongoing projects is the State's
15 obligation and what is a local enhancement, or should we
16 just let it flow as it is being developed?
17 MR. HUNKINS: Mr. Chairman, you're
18 speaking in terms of the pipeline projects only, that
19 you're dealing with right now?
20 REPRESENTATIVE BAKER: Correct, only those
21 that we're dealing with now.
22 MR. HUNKINS: I would want to give that
23 question some thought before I popped off about it.
24 REPRESENTATIVE BAKER: I like popping off.
25 COCHAIR SHIVLER: Colin -- Jim.
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1 SENATOR ANDERSON: Thank you. The
2 question that I had is somewhat in the same vein as
3 Representative Baker's, but earlier this morning we had
4 some discussion in regard to how we managed the pipeline
5 projects in this transition time, and it seems that a lot
6 of that responsibility is going to fall back on the Joint
7 Appropriations folks. And we've talked some about that
8 now.
9 During this transition time it is going to take
10 a good deal of expertise on the part of the JAC to meet
11 some of the obligations that we're trying to later give to
12 this commission that we're establishing.
13 So there's some concern on the part of the three
14 members of Appropriations that sit on this committee as to
15 how we might best manage these projects, these transition
16 projects, these pipeline projects, and stay within what we
17 would consider to be acceptable parameters for those
18 adequacy standards with the idea that these standards of
19 transition, that there will be new standards established
20 later perhaps by the commission. We're looking at some
21 standards we've used in the past that are in the minds of
22 some maybe too liberal.
23 I think what we have as our charge on
24 Appropriations is to be able to project these standards,
25 to come up with a standard that's not too austere as to be
130
1 challenged later by those who feel that they may have been
2 penalized by being in the pipeline projects and seeing
3 what the standards are later or to be too generous on the
4 other side.
5 So that's, I guess, the question that I have.
6 And there's one other member of the bar on our panel that
7 spoke a little bit about his opinion that we somehow,
8 quote, label these as being transition standards or
9 somehow within that framework find maybe a disclaimer or
10 some sort of qualification in regard to those decisions.
11 So I would be interested in any thoughts,
12 feelings, guidance that you could give to the Joint
13 Appropriations as to where we can turn during this time
14 that we're called upon to provide oversight and management
15 in order to best bring those standards into what we would
16 consider to be fair territory that would be exposed to the
17 least possibility of legal challenge and still be fair to
18 those folks that we're trying to serve.
19 MR. HUNKINS: Mr. Chairman, as I'm sure
20 you're aware, there's standards in place now. I've just
21 received a copy of them from Mary Kay today and I haven't
22 had a chance to look at them. They are standards that
23 have been promulgated in the form of rules and regulations
24 under the law.
25 I know that there are standards relating to
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1 capacity and I know there are standards relating to square
2 feet that are in existence. Standards, adequacy
3 standards, have become a term of art through these court
4 cases, and I want to make certain that we're using the
5 same term in the same way.
6 When I talk about standards in my memorandum,
7 I'm talking about adequacy standards, the whole ball of
8 wax for a construction project of which capacity standards
9 would be an important part and square footage would be
10 another important constituent part.
11 But I'm not just talking about those standards
12 that are in existence because I think they're incomplete.
13 So if your question -- I understand your question to
14 relate only to the pipeline projects, the ones that are
15 coming through under the sort of old system, and there I
16 think the question of transitional standards is an
17 excellent one. We have a lot of mileage out of transition
18 in this litigation in the last three years.
19 So I would -- I would say that transitional
20 standards sort of on an ad hoc basis -- you don't need an
21 auditorium for 800 with 200 kids, that kind of thing -- is
22 an excellent idea. And although I don't make predictions
23 about how challenges come out in the courthouse, my
24 feeling is that we would be in pretty good shape there.
25 SENATOR ANDERSON: Thank you.
132
1 COCHAIR SHIVLER: Colin.
2 REPRESENTATIVE SIMPSON: Thank you,
3 Mr. Cochair.
4 Ray, I have a couple follow-ups to that one.
5 And maybe Mary Kay can clarify something for me. Those
6 standards that you're talking about are the facilities
7 guidelines that the State has adopted and then we received
8 a copy of the rules for site selection and school
9 construction for Wyoming public school buildings that I
10 believe was filed in May of 2001 and then would have been
11 promulgated shortly after that. And then we received the
12 report from MGT on the Wyoming public school facilities
13 guidelines that had some recommendations about how those
14 could be changed.
15 And the way it sits right now, we have those
16 rules that were promulgated with the filing in May of 2001
17 and then the recommendations that have not been
18 promulgated or change the rules that exist now.
19 So would one possibility be to adopt the MGT
20 expert recommendation as to the changes to those rules as
21 a transition. I mean, we do have our expert telling us
22 what they think would be best, and how to do that. Does
23 the JAC even have authority to set an adequacy standard
24 through an appropriation process?
25 MR. HUNKINS: Mr. Chairman, I think you
133
1 have the authority to appropriate money on the grounds and
2 for the reasons that you deem is in the best interests of
3 the State. And I think if this litigation has taught us
4 anything, I hope that it has taught all of us that we are
5 best off with the rule of reason.
6 And what you're suggesting, Representative
7 Simpson, seems to me to be a reasoned, rational approach
8 to an interim transitional problem that would be very
9 difficult for anybody to complain about.
10 So I would be very comfortable defending that
11 kind of an approach if it were, in fact, an issue.
12 REPRESENTATIVE SIMPSON: Mr. Chairman.
13 COCHAIR SHIVLER: Colin.
14 REPRESENTATIVE SIMPSON: I have one other
15 question and this goes back to the local enhancement. I
16 can't get this conflict out of my brain, so I could go
17 into that unless somebody wants to stay on this particular
18 topic right at the moment.
19 COCHAIR SHIVLER: I would like to comment
20 on it just a second. I think that the Department of
21 Education rewrote the facilities guidelines. They could
22 certainly adopt these.
23 Is that correct, Mary Kay?
24 MS. HILL: Mr. Chairman, the facilities
25 guidelines have been adjusted a couple times. They have
134
1 not been most recently adjusted to reflect the most recent
2 recommendations that were received from MGT. And at the
3 current time the department's position is in something of
4 a holding pattern until further instructions evolve out of
5 this legislation.
6 So what we've done in terms of our rules and
7 regulations is kind of put a freeze on those until things
8 are a little more solid so that we could do that.
9 One thing that is worth knowing is that as
10 various projects are evaluated -- and Dodds can speak more
11 clearly to this -- they're being evaluated both from the
12 perspective of delivery of the educational program as well
13 as the square feet standards which serve as benchmarks, so
14 no one school is likely to be identical to the next
15 school.
16 So your discussion about standards and the
17 concern that by moving forward with the pipeline projects
18 does that establish a standard that would need to be
19 applied to every other school is a thorny one because we
20 don't ever anticipate that the same school would be built
21 in any community, that various needs dictate equal
22 treatment but not necessarily identical facilities.
23 COCHAIR SHIVLER: Senator Massie.
24 SENATOR MASSIE: Mr. Chairman, I
25 wanted to follow up just on the question I had a little
135
1 bit before with regard to the fact that we're talking
2 about three school districts here that are affected. I
3 was a little concerned about the discussion that we might
4 want to withhold state funding from these three schools.
5 I could see that could create some problems.
6 One, it could exacerbate the problems that the
7 locals are facing with regard to selling their bond issue.
8 If the State somehow is hesitant about contributing to the
9 project, it could land us back in court, too, and I don't
10 want to see either one of those scenarios happening.
11 I wonder if we could do something along these
12 lines instead. With regard to Lander, we've given them
13 already $20 million and the JAC is still going to review
14 that project, but I would say it is unlikely the
15 conclusion would be the State would owe anything more than
16 the 20 million.
17 Anything bonded for in Lander was probably going
18 to be considered bonding for enhancements. That doesn't
19 seem to be a problem there. The money there is for
20 enhancements, they can go forward with the building.
21 With Buffalo and Worland who have not issued
22 their bonds yet, could the State simply go to them and
23 after the JAC has looked at it and seen what the State is
24 responsible for under the standards and say, "Here is the
25 money for your schools and you are to build them to these
136
1 standards. And until you have made it clear to us or to
2 whomever that your bonds are -- can be issued and can be
3 issued without any kind of concern with regard to legal
4 challenge, that you can't add those enhancements until you
5 have clear data. Otherwise, here's the State money and go
6 forward with your construction."
7 And that in some way applies to the model we're
8 talking about in general. That could come up 10, 15 years
9 from now as to a bond election and how it was conducted,
10 whether or not that would endanger bonding for the entire
11 project. Whether the bonding enhancement came under some
12 kind of bond challenge or legal challenge locally and
13 whether that's going to affect the entire project and the
14 State's ability to build a building to those standards.
15 Maybe I'm not being clear. In other words,
16 saying we're going to go ahead with our schools, we're
17 going to our standards, you're going to have to clear it
18 up locally if you're going to go with the enhancements;
19 can we do something like that?
20 COCHAIR SHIVLER: Senator Massie, the
21 bonding in Worland and, I believe, Buffalo, that was their
22 10 percent so those actually weren't intended to be
23 enhancements. That's my understanding when they did that
24 originally.
25 SENATOR MASSIE: Correct, but they
137
1 haven't been issued yet, so my understanding is even if
2 the State could step in at this point and say, "Well, in
3 reality they aren't enhancements. You're right, we're
4 going to have to cover the entire cost," then there's no
5 question anymore.
6 If for some reason there's the determination by
7 the legislature applying the transitional standards that
8 there's still money in there that needs to be done locally
9 because we considered them enhancements, if we couldn't
10 simply go up there building that building anyway based
11 upon the standards and what the State is willing to put in
12 and let the locals clear up any legal questions over the
13 enhancement part of it.
14 COCHAIR SHIVLER: Colin.
15 REPRESENTATIVE SIMPSON: Mr. Chairman,
16 Ray, on this local enhancements issue and whether or not
17 for Campbell II they could become state standards and
18 whether that applies to facilities or programmatic things,
19 I see in your memo that you acknowledge, as you did last
20 time you were with us, that leads you to the inescapable
21 conclusion that the two decisions can't be read together
22 and that Campbell IV, therefore, has reversed the rule
23 enunciated in Campbell II regarding local enhancements.
24 Specifically it no longer appears that local enhancements
25 will result in new state standards.
138
1 There are paragraphs in Campbell II that seem to
2 me to be so clear on this issue that it makes me very
3 uncomfortable to just leave it at that without a further
4 statement from the Court as to what they meant and what
5 did they intend in that conflict because paragraph 129 of
6 Campbell II says that we hold that the legislature must
7 fund the facilities deemed required by the State for the
8 delivery of the full basket.
9 Individual districts may fund additional
10 facilities deemed appropriate enhancements with locally
11 raised revenues. The State must assure that over time
12 appropriate local enhancements are adopted as
13 state-required facilities as the standards for an adequate
14 education evolve.
15 In addition, local enhancements which are not
16 appropriate as statewide standards must not result in
17 disparities in educational opportunities that deny
18 students an equal education appropriate for the times.
19 In Campbell II the Court specifically talked
20 about facilities and equality of opportunity ultimately
21 requiring a rough measure of the quality of facilities
22 over time. It seems to me that if we just assume that the
23 local enhancement won't result in a new standard leaves us
24 with a huge question for the future.
25 And I think we could proceed like we're doing
139
1 right now and the legislature can proceed with capital
2 construction and school financing, but it would make me
3 much more comfortable in making legislative decisions
4 knowing what the Supreme Court meant on local
5 enhancements.
6 And they invited the parties to come back for
7 further clarification, and I'm wondering if that's being
8 pursued as an option in that area because I see it as -- I
9 can't reconcile the conflict in my mind as you do. I
10 agree with you that there's an inescapable conflict, but
11 I'm not comfortable leaving it just assuming that that's
12 what they meant.
13 MR. HUNKINS: Mr. Chairman, I share your
14 pain. Let me say this: I respond to requests that have
15 come to me from the executive branch people that I work
16 for and I haven't been asked to go back to get
17 clarification.
18 There are two ways to look at that and they
19 touch upon strategy and they touch upon the outcome that
20 one would desire. And I rather would imagine, without
21 having any reason to say so, that there may not be
22 unanimity of opinion in this room about the outcome that
23 would be desired if the question were asked.
24 So I understand. I think you and I are in
25 agreement that those are irreconcilable positions and I'm
140
1 available to, you know, ask the Supreme Court to say, "Do
2 you really mean what you said in Campbell III or do you
3 mean what you said in Campbell II?"
4 And I would be happy to do that if the people
5 that I work for ask me to do it. Having said that, I know
6 that you share my view that you don't ask a question
7 unless you're prepared for the answer, and I detect a
8 tension between the decision in Campbell II and the
9 decision in Campbell III that may reflect a tension on the
10 Court which -- you can draw your own conclusions from
11 that. I think that's as far as I want to go.
12 REPRESENTATIVE SIMPSON: Mr. Cochair,
13 thank you, Ray, for responding to that.
14 There was one point in your memo where you
15 cited -- it is on page 5 where in your discussion you talk
16 about Campbell II and recite paragraph 111. The third
17 sentence of that paragraph, "The disparities in local
18 wealth will produce unconstitutional disparities in
19 educational opportunity if the school district's funding
20 options are a function of assessed valuation."
21 When I look at that sentence, I could end that
22 after "educational opportunity" and it would mean the same
23 thing to me, but the Court qualifies it to say that it is
24 unconstitutional if the funding options are a function of
25 assessed valuation.
141
1 Well, with local enhancements that's exactly
2 what they are. The local enhancement is a funding option
3 that is a function of assessed valuation. So how can you
4 say in any rational way that a local enhancement is
5 allowed?
6 MR. HUNKINS: Mr. Chairman, Representative
7 Simpson, I have been quoted as saying that we have come
8 full circle and disparity is now constitutional. I know
9 your question is rhetorical, but it shouldn't be directed
10 at me. It ought to be directed at the Supreme Court.
11 There is no way that you can reconcile those, and it is my
12 opinion and everybody that pays their dues is entitled to
13 their opinion, that disparity through local enhancement is
14 now constitutional and that it is not going to -- that
15 disparity is not going to create the much dreaded and
16 feared state standard. I think that's what the Supreme
17 Court said. I think that's what they intended to say.
18 The problem is they didn't come out and say, "We
19 are reversing what we said in Campbell II." They said
20 just the opposite. They said, "We're going to stick with
21 our original opinion," and then there were a lot of things
22 that were different about their opinion.
23 REPRESENTATIVE SIMPSON: Mr. Chairman, I
24 guess a last comment, from my perspective as a legislator
25 and a member of this capital construction committee and
142
1 looking at the school capital construction that occurs in
2 this country, it is 90 billion a year I think I read just
3 the other day. We spend incredible amounts of money on
4 school buildings, and we have a fiscal responsibility to
5 our constituents wisely and we spend a lot of money on
6 school construction.
7 And without knowing what impact our spending
8 might have and what we're building might be adequate five
9 years from now -- I mean, certainly there's going to be
10 some improvements that we will have to meet, but if we
11 have to meet every local enhancement as a state standard
12 every five years, I want to know that so I can make
13 decisions about other appropriation requests and other
14 revenue enhancement questions that come up. So in my
15 opinion it is a critical question. And I don't know how
16 this committee addresses it, but I think it needs to be
17 addressed somehow.
18 MR. HUNKINS: Mr. Chairman, if I could
19 just respond to that.
20 COCHAIR SHIVLER: Please.
21 MR. HUNKINS: You're asking for an
22 advisory opinion that when I started practicing law was
23 verboten. We've got advisory opinions, however, in the
24 form of Campbell II, Campbell III, and if you believe in
25 your role as legislator that further advice from the
143
1 Supreme Court would be helpful, then I would encourage you
2 to take that up with the Attorney General's Office and see
3 what they think.
4 REPRESENTATIVE SIMPSON: Thank you.
5 SENATOR CATHCART: Mr. Chairman, just one
6 last word on that. I absolutely agree with Representative
7 Simpson on that. Even if we don't like the answer, I want
8 to know what the answer is, and sometimes we are asking
9 the question we think we may get an answer we may not
10 like, but in this particular situation for the very reason
11 that Representative Simpson expressed there, I think it is
12 a very critical question to have an answer on enhancements
13 and do they become a standard or not.
14 COCHAIR SHIVLER: Get in the position of
15 waiting on another Court opinion.
16 MR. HUNKINS: Mr. Chairman, if I could
17 just add one thought that I think we all ought to keep in
18 mind, asking the question is one thing; getting the answer
19 is an entirely different thing. And it may be that even
20 though you ask the question, in short of an ad hoc process
21 what do you call it, a declaratory judgment request from
22 the Supreme Court -- I mean, we really are talking new law
23 here.
24 Even though you ask it, they may not want to
25 answer it. There isn't anything that prevents us from
144
1 asking it, but you should know that asking and receiving
2 are two different things.
3 SENATOR MASSIE: Mr. Chairman, it seems
4 like one of the terms that is in doubt and that's created
5 a great deal of discussion is the term "disparity." And
6 is that what the Supreme Court is really talking about is
7 just simply the word "disparity"? Or are they talking
8 about the constitutional question being the disparity of
9 educational opportunity?
10 I don't remember in any of their opinions, going
11 all the way back to Washakie, in which the Supreme Court
12 has said there can never be any disparities. Instead,
13 they said there can't be any disparities in educational
14 opportunity. In other words, every student must have
15 equal access to a quality education or an adequate
16 education or first rate or however we want to make that
17 qualifier.
18 Whatever it is, every student has to have an
19 equal opportunity to it. And we've defined that
20 opportunity for education or adequate education as being
21 the basket of goods and services. And the statutes are
22 full of those. But one of the elements in that basket is
23 not that every school has to have the same sized swimming
24 pool. It does not say that every school has to have the
25 same sized auditorium.
145
1 Instead, it just simply says this is what has to
2 be taught and every student has to have equal opportunity
3 to what is taught there. So I wonder if part of our
4 problem or part of the confusion that's coming about here
5 is that we're talking about two different things here,
6 that perhaps the Supreme Court is referring to disparity
7 and that opportunity to access the educational basket and
8 then the discussion that we're having here is just about
9 disparity in general.
10 REPRESENTATIVE SIMPSON: Mr. Chairman,
11 just to respond to that, in paragraph 128 of Campbell II
12 it says specifically that equality of opportunity
13 ultimately requires a rough measure of equality of
14 facilities over time, and that's different from the
15 standard of -- the programmatic standard of equal access
16 to the basket of educational goods.
17 SENATOR MASSIE: But, Mr. Chairman, that's
18 taken in isolation, taken out of context of the rest of
19 the opinion. The rest of the opinion, and frankly at the
20 beginning of Campbell II and certainly in Campbell I, if
21 I'm not mistaken, talks about facilities need to be built
22 to provide that educational basket of goods and services
23 to be able to deliver it in a safe and efficient
24 environment.
25 So I think that that's, once again, the
146
1 qualifier that they continue to go back to when they talk
2 about equal access. It is equal access to that basket, it
3 is equal access to the facilities that will provide you to
4 that basket, not simply equal access period.
5 REPRESENTATIVE SIMPSON: Mr. Chairman. I
6 understand. I don't agree with that, but I understand.
7 COCHAIR SHIVLER: Madam Cochair.
8 COCHAIR DEVIN: Mr. Hunkins, there's been
9 concern as we've had all our projects in these various
10 stages and certainly these pipeline 1 projects, as you
11 heard earlier about adequacy and the whole issue of should
12 the JAC and the legislature subsequently then take action,
13 do we set a standard for the future, et cetera, you know,
14 I'm never sure whether I stake too broad a view or don't
15 pick at the words enough or pick at them too much, but
16 when I look at that adequacy standard, is it proper -- I
17 was looking for the piece in the opinion, but I do
18 remember it and I don't find the exact quote, that it did
19 indicate that the State has the right to set the standards
20 and that those standards acknowledge they can change over
21 time.
22 I see it as a fluid process. In fact, even in
23 our bill we have said that the commission and so forth
24 needs to evaluate whether things become standards or not.
25 But I don't see that the JAC or the legislature
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1 necessarily locked into one bar. I see a broader
2 definition of adequacy of a facility to be considered;
3 safety and health and deliver the basket of education.
4 Some of this concern, I think, comes from a static
5 snapshot in time, you know, will we always be held to
6 that. And I guess I see that as more fluid.
7 What is your view of that? Is it a fluid
8 process, do you think, over time? If we act with what can
9 be substantiated as good reason, is there reason to think
10 it can change over time?
11 MR. HUNKINS: Mr. Chairman, are you
12 speaking broadly in terms of the future and not just these
13 pipeline projects?
14 COCHAIR DEVIN: Well, I guess I speak in
15 relation to them. There's some concern that what we do on
16 them would we be locked into doing forever in the future,
17 whether it is broadly or square footage-wise or a certain
18 facility.
19 I guess I don't necessarily see it that way and
20 I'm not sure whether I'm accurate or if this whole piece
21 of what's the standard will change over time.
22 MR. HUNKINS: I want to draw a distinction
23 between the pipeline projects which are peculiar because
24 of the sequence of events, the timing of the Supreme
25 Court's opinion versus the planning and execution of the
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1 preliminary stages of the construction project. Let's put
2 that aside.
3 The problem with a fluid measure of adequacy
4 that I'm equating that term to -- and use it synonymously
5 with ad hoc rules is that it is subject to the very issue
6 that got us here in the first place, the disparate
7 treatment of applicants for state funds.
8 So I think as a matter of good government, if
9 you will, and law, that it is going to be necessary for
10 someone, either an agency in the executive branch or the
11 legislature, to define what adequacy is in significant
12 detail.
13 I see that as the only way of overcoming the
14 problem of treating different schools differently
15 depending on who is sitting in your chair or what the
16 makeup is. And that's just a recipe that I think has been
17 proven since my involvement to be not acceptable legally
18 and constitutionally.
19 So I think you're going to have to have rules
20 and they're going to have to be detailed, and they're
21 going to have to set standards for adequacy in rather
22 minute detail so that you don't subject the State to the
23 charge that it is treating Worland different from Lander
24 or Meeteetse different from Laramie because that's -- that
25 is the history in a nutshell of school finance litigation
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1 over the years.
2 COCHAIR SHIVLER: Dodds.
3 MR. CROMWELL: Mr. Chairman, can I just
4 add a nonlegal response to your question?
5 In looking at school programs and school
6 facilities over the years, the bar has changed. That's
7 just without a doubt. I mean, 20 years ago we didn't plan
8 for computers in the classroom. Now that's a given.
9 And I think that there's kind of two parts to
10 this. One is the bar of what's adequate I think will
11 change over the years. It will be incremental and it
12 won't happen overnight, but it will change as we all
13 change in our technology and the way we think and the way
14 we deliver education.
15 I think what Mr. Hunkins is addressing is when
16 we make opportunities available for those changes, then we
17 have to do it without disparity. So as that bar changes,
18 we have to make sure everybody has the equal opportunity
19 to that new level. So I see those as two different steps
20 or two different thoughts in the process.
21 When the State realized they needed state
22 technology infrastructure, they got statewide funding for
23 that. They raised the bar but made sure it was open to
24 all districts. I see both of what you're saying as being
25 valid.
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1 MR. HUNKINS: May I, Mr. Chairman?
2 That is, in its essence, the rule of law. I
3 mean, what we're talking about is having a set of rules
4 that apply to all of the school districts, just like we
5 have a set of criminal laws that apply to all of the
6 people.
7 And I don't mean to suggest that those rules
8 don't change over time or shouldn't change over time.
9 Heavens, on my ranch on Ashley Creek we've got a log house
10 that is sitting there. It is abandoned, but it was a
11 one-room schoolhouse and inside that log structure,
12 probably 200 square feet, is a blackboard and a desk. And
13 that was adequate in Albany County when it was built in
14 1910 -- 1909, but it is not adequate now, and it wasn't
15 adequate when they built the new house next to it which is
16 also abandoned.
17 So yes, standards change and should change and
18 can be changed. I'm not suggesting that we ought to have
19 a set of rules or detailed legislation that is forever the
20 standard that's going to be applied, but I think measured
21 in time the standards for every school in Wyoming have to
22 be roughly equivalent.
23 SENATOR CATHCART: Well, Mr. Chairman, I
24 don't want to belabor this, but now I have more concern
25 about the transitional pipeline projects and how we treat
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1 those.
2 SENATOR MASSIE: That's only because he's
3 on JAC.
4 SENATOR CATHCART: Furthermore, I heard
5 the suggestion over here as we raise the bar. You know,
6 changing standards may not always raise the bar. We may
7 go from 180 gross square foot to 150. We may lower the
8 bar. So I just don't want to belabor it at this point,
9 but I'm more concerned now than I was ten minutes ago
10 about the transitional projects.
11 COCHAIR SHIVLER: I think philosophically
12 we're ready to pin this bill from one point or the other.
13 Senator Massie, I think you and I had a discussion a
14 moment ago that we didn't finish. We went in another
15 direction.
16 SENATOR MASSIE: That's fine.
17 COCHAIR SHIVLER: I agree, it shouldn't be
18 a penalty, but sure, we could say gosh, it would speed up
19 the process if we had the information. Sometimes if you
20 do that you get the information a little quicker.
21 Now, the two schools we were talking about, I
22 think specifically on Buffalo, the main thing they're
23 looking for is a 600-unit auditorium which isn't going to
24 cost anywhere near the $8 million they've raised. So if
25 they give that back to the electorate and say, "We really
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1 only need a million and a half," I think that would be the
2 fair thing to do and certainly do away with the
3 possibility of a lawsuit or whatever.
4 So we need to get that across to them in some
5 way, but I agree, we don't want to say the old carrot and
6 stick.
7 Mr. Hunkins, anything --
8 MR. HUNKINS: Mr. Chairman, just one
9 thought. I want to emphasize that my part of the
10 discussion, at least, doesn't have to do with transition
11 because I think that's a completely separate and different
12 legal standard that applies to that.
13 COCHAIR SHIVLER: We always enjoy your
14 discussions. You're always enlightening. I can certainly
15 say that.
16 Anyone else have any questions before we go on?
17 Well, I guess at this point, then, after that
18 discussion we could probably consider the -- we have one
19 more amendment, the proposed amendment on building
20 prototypes. I asked whose amendment this was and I was
21 told it was mine. Perhaps you could explain it.
22 When we were explaining this bill to the
23 combined group of committees, Representative Nagel asked
24 if it was reasonable for the State to provide a
25 prototypical school for just information and at that point
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1 I said yes, I thought that would certainly be a good thing
2 to do or certainly could be done. And I think she, in
3 fact, sent this information in for this amendment.
4 And, David, did you write this?
5 MR. NELSON: I did.
6 COCHAIR SHIVLER: You want to go through
7 this with us real quick?
8 MR. NELSON: This was my attempt to
9 satisfy the request of Representative Nagel on that
10 request, and what I did was just require the commission
11 when they are putting together their remedies to address
12 inadequacies, and this would apply only to replacement,
13 facility replacement, so that would be a brand-new
14 building, that they then would establish prototypes for
15 proceeding with that that would be based on these
16 criteria, capacity, educational programs, these sorts of
17 things, and just inserted that as part of the process that
18 they use when putting and assembling a remedy for a
19 replacement as opposed to just --
20 COCHAIR SHIVLER: I think several of us
21 have read it, and looking at the A, B and C which
22 essentially sets forth the requirement, capacity for
23 building, when we got to F, it looked like -- our
24 understanding of this or certainly my understanding was
25 that the new facility would -- that facility would be
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1 required of that school to ask for it? Is that what we're
2 trying to say there?
3 MR. NELSON: I think it is plugged in --
4 I'm going to have to refresh my mind here. It is plugged
5 in at a later point in the bill at page 22 which is
6 speaking towards the major capital outlay. When we're
7 talking about a replacement, I think at that point we have
8 to designate one of the prototypes that they've developed
9 to follow when constructing that remedy.
10 COCHAIR SHIVLER: Well, my suggestion at
11 the time -- you know, this was how I interpreted her
12 question, was that we, we being the State, have some
13 prototypical designs that if a small school district or
14 large district came to us and said, "We want a school for
15 125 people. What do we do about this, hire an architect
16 or whatever," we can say, "This is a design that has
17 worked. If you want to use this, do it. If not, this is
18 a framework here to give you an idea of what we're talking
19 about," rather than requiring that they use it because
20 then we get back to what some people were talking about,
21 cookie cutter school and so on.
22 MR. NELSON: Exactly. That was my
23 interpretation of my discussion with her and I have not
24 discussed or had any communication in that source since it
25 was put together, so it is just a proposal. And that's
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1 about all it concerns.
2 SENATOR MASSIE: Mr. Chairman, I would
3 split the amendment between page 7 and page 22 and then I
4 would move adoption of page 7.
5 COCHAIR SHIVLER: Second on that?
6 REPRESENTATIVE SIMPSON: Second.
7 COCHAIR SHIVLER: Discussion?
8 REPRESENTATIVE BAKER: Mr. Chairman, if
9 there's no methodology, if you will, to use the
10 prototypes, and page 22 would be an appropriate place to
11 bring it in, what's the point in adopting prototypes at
12 all? I do not understand the proposed addition.
13 COCHAIR SHIVLER: Well, I think, you know,
14 our -- in our initial discussions just saying what if a
15 small district saying they have 85 or a hundred students
16 identified a need to the State that we needed to explore
17 the process now and in the future, it would probably be we
18 need to hire an architect and get this underway.
19 If they didn't want to get into that much
20 involvement and say we do have a design for 125 students
21 that's been approved, it works, it will save you the
22 design process and, you know, we can get started on it
23 right away rather than going through a six-month or
24 one-year design process.
25 So I think more than anything it was to benefit
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1 and speed getting a new facility for the district. Not
2 every school with this plan necessarily will like it. I
3 think Senator Cathcart and I talked about this on many
4 occasions. You can take the same floor plan and make it
5 look 50 ways if you want to. It would be whatever the
6 district wanted. I think more than anything it was just
7 to give a district that didn't want to get involved in a
8 fairly extensive design process. And it is a process and
9 it is very -- you know, I'm an architect and I always said
10 it was very painful. I enjoyed it because of my business,
11 but the clients seldom do.
12 I think this was just more than anything a
13 process whereby we could let a small school or any school
14 that wanted to -- we would provide them with a set of
15 plans -- not necessarily a set of plans but a plan or
16 preliminary saying, "This works, you know. Take a look at
17 it. If you like it, we'll go with it."
18 COCHAIR DEVIN: Cochair, as a discussion
19 on some of that, I think there was a time issue and a cost
20 issue and then an opportunity to develop some expertise
21 over what you liked about this, how you could improve it
22 over time.
23 Among some there was a discussion of also
24 saying, "Okay, if you choose to bring another plan, you
25 know, we have a comparable to say a school for 125 should
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1 cost about this. And, you know, if your plan comes in
2 similar to that or better than that, you've probably gone
3 through the pain and done a great job. If it is double
4 that, let's talk about where it can be less expensive."
5 And then, as we were talking earlier, the
6 redesign of several of these internal systems, be they
7 heating, cooling, electrical and so forth is a really
8 costly process to redo that from scratch each time would
9 be the advantages.
10 Now, how you would ever want to tie in the page
11 22 piece as a requirement versus, you know, just leaving
12 it out entirely or a comparative, that's another issue.
13 COCHAIR SHIVLER: Representative Baker.
14 REPRESENTATIVE BAKER: And that's my
15 point. I understand the need to develop prototypes, make
16 them available to districts. But to me the implementation
17 paragraph is the one that's on page 22 that allows the
18 State, if you will, to suggest. And that's all I see this
19 as, a prototype that fits, because nowhere in here does
20 this say you shall use this prototype forever, and I don't
21 see that as this requirement. Maybe I'm misunderstanding.
22 SENATOR MASSIE: Mr. Chairman.
23 COCHAIR SHIVLER: Senator Massie.
24 SENATOR MASSIE: The reason I divided it
25 out is because I do perceive that as being a requirement
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1 there on page 22 when it says essentially the commission
2 shall designate the building prototype under which the
3 construction project is to proceed. So when these major
4 capital outlays come in front of the commission, it will
5 designate whatever prototype fits that request and it
6 shall proceed under that prototype.
7 So that's why I divided out page 22 in page 7
8 because page 7 says we're going to come up with it and if
9 it is going to be helpful to you, we'll give it to you,
10 because it is going to save everyone time and money.
11 However, if you want to go out and design one
12 yourself that meets our standards, feel free to do so.
13 And that's going to be more expensive. And if we were to
14 adopt page 22, we would cut down on that expense. But we
15 can save that debate for when we get to that part of the
16 amendment. Page 7 simply gives the commission the
17 authority to go ahead and come up with these prototypes
18 and offer them, not only the authority but the requirement
19 to do so.
20 COCHAIR SHIVLER: Senator Cathcart.
21 SENATOR CATHCART: Mr. Chairman, I don't
22 have a problem with the portion of the amendment we're
23 working on right now.
24 COCHAIR SHIVLER: Page 7.
25 SENATOR CATHCART: Page 7.
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1 COCHAIR SHIVLER: Senator Anderson.
2 SENATOR ANDERSON: Mr. Chairman, from your
3 view as an architect, how detailed would these prototype
4 plans be, conceptual or what degree of detail would they
5 go into?
6 COCHAIR SHIVLER: I suggest initially they
7 would be preliminary, and if someone says, "We really like
8 this," we could set working drawings in progress. I don't
9 suggest we go out and do prototypical working drawings for
10 seven or eight different design capacities of schools at
11 this point. That's fairly expensive.
12 Senator Cathcart.
13 SENATOR CATHCART: Mr. Chairman, also a
14 prototype is going to contain things that are -- that can
15 be redundant in every schoolhouse, like mechanical plans
16 and heating systems and those sorts of things. Obviously
17 you can't have a prototype that one size fits all
18 regarding footings and foundations and those sorts of
19 things, but...
20 COCHAIR SHIVLER: One of the things that I
21 was involved in, I did a study of the system schools in
22 Florida. And one of the things they did with the system
23 schools was have a common HVAC system. The mechanical
24 system was common to all 12 schools, yet every school was
25 totally different. Yet we did ask that you use the same
160
1 system.
2 I don't know if we wanted to do that in this
3 state or not. We don't have any extraordinary needs from
4 one end of the state to the other. It certainly could be
5 done. That would be a possibility. If you can use this
6 mechanical and heating system, we know it works, it is
7 easy to maintain, we know it works, that could be the type
8 of prototypical system we could ask people to use.
9 Mr. Cromwell probably has some insight into
10 this. This is his business.
11 MR. CROMWELL: Mr. Chairman, I've been in
12 a lot of districts that have used prototypes with great
13 success. And it is like everybody is saying here, they
14 have a design and they take it and adapt it to the site
15 but they save themselves some design time and fees by
16 having that basic plan done.
17 They work best within a district where you've
18 got a uniform educational program going on so, you know,
19 because you get a broader area, statewide, then they don't
20 apply as well because of different districts delivering
21 the educational program a little differently.
22 I think they could be as minimal as a prototype
23 program of spaces somewhat like we presented in our
24 report -- that would be the minimal thing you might want
25 to do for different sized schools -- all the way up to,
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1 like you said, a detailed construction drawing. You could
2 over time develop them and the level of detail. I would
3 say as long as it is optional, there was some choice
4 there, I think it would be a valuable tool.
5 COCHAIR SHIVLER: Senator Anderson.
6 SENATOR ANDERSON: It seems to me this is
7 something that could evolve over time. You start that
8 conceptually and as a district became more interested,
9 they might develop that in great detail. Well, then the
10 second district would have a better idea, going from the
11 concept clear down to more detail, and that's something
12 that I think would evolve.
13 COCHAIR SHIVLER: The 12 schools I was
14 just talking about, that's exactly what happened. They
15 built one school. A district looked at it and that
16 district said, "Well, this is really great but this
17 doesn't work," so, you know, by the time they got to the
18 eighth one, the last four were identical because they had
19 that much information.
20 And I think that it is a tool and can be a good
21 tool and over the period of time save the State and the
22 districts quite a bit of money.
23 SENATOR MASSIE: Question.
24 COCHAIR SHIVLER: This is on the first
25 division.
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1 SENATOR MASSIE: Yes.
2 COCHAIR SHIVLER: The first question has
3 been called for.
4 All those in favor of adopting page 7, I'll call
5 it, say aye.
6 Anyone opposed.
7 We're going to look at page 22. Now, my
8 understanding, I read that the same way, that this was an
9 a -- this was going to be designated as a requirement and
10 probably I read it wrong.
11 Dave, is that how you intended to write it?
12 MR. NELSON: Yes.
13 COCHAIR SHIVLER: My opinion on that is we
14 really don't want to do that. I think that really does
15 away with what little local control is left. At least
16 they have the opportunity to look and say, "We like it."
17 "We don't. We would like to do something else."
18 Senator Cathcart.
19 SENATOR CATHCART: Mr. Chairman, I guess
20 my question is in -- selecting a prototype maybe is a
21 little beyond where we want to go, but my question is what
22 if the commission can never develop a set of plans that
23 suits the school district? Who makes that final decision
24 on what they get? So that's the problem you have. Trust
25 me on this, the commission will never be able to satisfy,
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1 for example, our district.
2 COCHAIR SHIVLER: We know that.
3 SENATOR CATHCART: They don't have enough
4 money to do that.
5 COCHAIR SHIVLER: If we go back to the
6 broad bill, the commission -- establishing the commission
7 and adequacy standards, square foot standards, obviously
8 cost is going to be one of those factors. The cost
9 factors come from the surrounding areas and schools that
10 are recently built, R.S. Means.
11 I think the biggest problems -- you and I both
12 sit on that committee. The cost was twice what R.S. Means
13 was and surrounding states. I think with a clear
14 conscience we can say, "No, you can't build a
15 250-square-foot school when they're building them for 126
16 down the road."
17 I think one of the things that the commission
18 will clarify is what is included in 126 a square foot.
19 That's different with every school. Some include parking
20 lots. Some don't. Some have gyms. Some have swimming
21 pools. That will be clarified in the commission's work.
22 You're right, they're never going to be
23 completely happy unless they build a 250-square-foot
24 school, but I don't think the taxpayers will be happy when
25 they start paying for it.
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1 Dave.
2 MR. NELSON: Mr. Chairman, I was just
3 going to add that under the bill, the commission would be
4 the entity that develops the remedy. The amendment would
5 just say that when they develop that remedy they must
6 choose from those prototypes.
7 SENATOR CATHCART: Well, Mr. Chairman,
8 with that explanation, then, I think there could be any
9 number of cases where the remedy is better than the
10 prototypes. There may be a better remedy than choosing
11 from the prototypes.
12 COCHAIR SHIVLER: I agree.
13 Do we need to vote on this? Hasn't been moved.
14 Does anyone want to move it?
15 REPRESENTATIVE BAKER: Yes, Mr. Chairman.
16 COCHAIR DEVIN: Does anyone want to
17 second?
18 Motion dies for lack of a second.
19 REPRESENTATIVE BAKER: See, I was going
20 to.
21 COCHAIR SHIVLER: You were going to amend
22 it?
23 REPRESENTATIVE BAKER: Amend it, yes.
24 COCHAIR SHIVLER: I guess this is the last
25 thing we need to do, I guess.
165
1 COCHAIR DEVIN: We may have other
2 amendments.
3 COCHAIR SHIVLER: I thought that was the
4 last one.
5 COCHAIR DEVIN: I think it was the last
6 written one.
7 COCHAIR SHIVLER: I'm sorry. Let's
8 proceed.
9 COCHAIR DEVIN: There was some indication
10 this morning.
11 COCHAIR SHIVLER: We're back working on
12 the school capital construction draft and are there any
13 more amendments?
14 SENATOR CATHCART: Mr. Chairman, going to
15 page 2 and 3, we're talking about developing the makeup of
16 the commission. And when I look at the members appointed
17 by the governor, I see under 1(i), building and facility
18 engineering construction operations, that's typically or
19 obviously your engineer type.
20 Number 2 is architectural type.
21 Number 3 is someone like, I suspect, Jim
22 Twiford, for example, somebody who has got a lot of
23 experience in school facilities planning and management,
24 that sort.
25 I look at number 4. That tells me we're going
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1 to have somebody on the commission with a lot of
2 experience and expertise in the area of state law
3 regarding education.
4 And number 4 -- number 5, I mean, public
5 finance, I am not convinced we need somebody with
6 expertise in public finance on this commission, but also
7 there's something just glaringly missing for me because of
8 where I come from in life. There is no one on this
9 commission with expertise or knowledge in actually
10 building schools.
11 Now, when you look at design and engineering and
12 you combine that all together, at a maximum it is 15
13 percent of the project. When you start building a school,
14 85 to 90 percent of the project is done by contractors,
15 school builders. Whenever you meet with school boards to
16 talk about change orders or progress reports, it is rarely
17 the architect that was there planning and discussing
18 things with the school board. It is generally the general
19 contractor or the person who is actually building the
20 school. And I think this commission will be missing
21 significantly if we don't have somebody of that caliber on
22 this commission.
23 So with that, Mr. Chairman -- and also, I might
24 add, that while we have someone on this commission dealing
25 with expertise in public finance, we just appropriated
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1 $90,000 to hire an expert with expertise in developing
2 financial strategies and this is a commission staff
3 person. When you have that kind of expertise on the
4 staff, I'm not convinced we need that expertise
5 necessarily on the commission.
6 So, Mr. Chairman, I would like to on page 3,
7 line 5, delete "public finance" and insert "expertise to
8 finish up specified area of expertise," add "estimating
9 bidding and building construction." Then you really get
10 someone on the commission who has -- and I don't know a
11 general contractor in Wyoming who hasn't had a lot of
12 experience dealing with the customer, who in this case
13 would be the school district, on progress reports, change
14 orders, all of those sorts of things. And I think that
15 would be invaluable on this commission.
16 REPRESENTATIVE SIMPSON: Second.
17 COCHAIR SHIVLER: Discussion?
18 COCHAIR DEVIN: Mr. Chairman, I guess I
19 would just like to ask from -- that makes a lot of sense,
20 you know, and on a practical level I know that's where
21 we've had a lot of our frustration with these projects
22 come to us and maybe that's why it has been -- I guess I
23 would ask since we have some of our expertise available in
24 Mr. Cromwell or our staff, do you see any problems with
25 our doing -- making that change?
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1 MR. NELSON: That's fine.
2 MR. CROMWELL: Mr. Chairman, I think that
3 would be fine. I think the construction expertise would
4 be there. I guess I kind of read it in before under (i),
5 but I think Senator Cathcart is right, the emphasis there
6 is in engineering and operations, so I think to
7 specifically say we want contractor-types on the board --
8 on the commission is a wise decision.
9 COCHAIR SHIVLER: I'm in full agreement
10 with it. I think if there's no further discussion, just
11 have a vote.
12 REPRESENTATIVE BAKER: Question.
13 COCHAIR SHIVLER: Those in favor, aye.
14 Anyone opposed.
15 Motion passes.
16 SENATOR CATHCART: Mr. Chairman, another
17 amendment on page 3, lines 9 and 10. I'm at a bit of a
18 loss. When we talk about needing somebody on this
19 commission, on line 24, page 2, school facilities planning
20 and management, I'm really struggling on how we're going
21 to get somebody, high-caliber person with that kind of
22 expertise if on line 9 we eliminate from any possibility
23 of serving on the commission an employee of any school
24 district. It certainly makes sense to me that we probably
25 want to eliminate a school board member, and we
169
1 certainly -- maybe I agree with employees of various
2 associations and organization.
3 But when I look at filling that vacancy right
4 there and, for example, I mentioned Jim Twiford, he's an
5 expert in that area but he is an employee of the school
6 district. I'm wondering if we're not making a mistake
7 right there by not allowing an employee of a school
8 district to serve with this commission. I raise that for
9 discussion.
10 Mr. Chairman, let me try the amendment. Page 3,
11 line 9, after the comma delete the rest of the line and
12 page 3, line 10, delete "district."
13 REPRESENTATIVE SIMPSON: Second.
14 COCHAIR SHIVLER: I'm not -- so it should
15 read "commission members appoint under subsection," blah,
16 blah, blah, "district board of trustee or an employee of
17 any educational association or organization" --
18 COCHAIR DEVIN: So you would delete --
19 COCHAIR SHIVLER: Delete "employee of any
20 school district," essentially, is what is being deleted.
21 Second?
22 REPRESENTATIVE SIMPSON: Second.
23 COCHAIR SHIVLER: Senator Anderson.
24 SENATOR ANDERSON: I was going to second
25 it.
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1 COCHAIR SHIVLER: Madam Cochair.
2 COCHAIR DEVIN: Yes, I guess I would
3 ask -- and I've been asking all through this bill what
4 kind of people are there out there to fill these
5 positions. I did start to raise that question.
6 And the other question -- then probably
7 dependent on that answer, the other question to the maker
8 of the amendment would be the openness to limit this to
9 one employee, that the commission not have more than one
10 employee of a school district on it because some of the
11 criticism we have received of some of our boards working
12 with education is that they have a lot of self-interest
13 and that has reduced the credibility. And I've been
14 sensitive to that because I'm the one who usually hears
15 the complaints.
16 COCHAIR SHIVLER: Senator Cathcart.
17 SENATOR CATHCART: Mr. Chairman, I think
18 that's an outstanding recommendation, and if we can
19 incorporate that into this amendment somehow, I would
20 support that. My concern is we're asking for an expert
21 with very specific knowledge, and the pool of candidates
22 to draw from in that specific area, school facilities
23 planning and management, what is left out there with
24 expertise in that is some retired person who may be
25 willing to serve if we eliminate these school board
171
1 employees.
2 And maybe someone else knows that there's a big
3 pool of people available out there to do that, but I'm not
4 convinced.
5 COCHAIR SHIVLER: Representative Baker.
6 REPRESENTATIVE BAKER: Mr. Chairman, on a
7 commission this size how would something like that be
8 handled without conflicts of interest in an area where a
9 commission member would be, if you will, voting for their
10 own district or not? They remove themselves and then you
11 have no expertise at all in that area, or they throw in
12 their expertise and then back out of a final vote? That
13 gives me some consternation.
14 SENATOR MASSIE: Mr. Chairman.
15 COCHAIR SHIVLER: Senator Massie.
16 SENATOR MASSIE: I think that would
17 probably be handled just like it is in the legislature,
18 and that is a person who has a conflict of interest there
19 just refrains from voting. That doesn't mean their
20 expertise is not available to be offered during discussion
21 or to be consulted which other members. It would be just
22 be that if that person has a financial incentive or
23 financial situation, then they would abstain from voting.
24 REPRESENTATIVE BAKER: Mr. Chairman,
25 you're talking about a pool of at least 30 at which a vote
172
1 or few votes are pulled out rather than a commission of a
2 few. You know, it is significant when I declare a
3 conflict of interest and there's 59 other people and some
4 of which I measure my, quote, expertise or bias or
5 whatever. But then you go to a commission, small
6 commission, that concerns me, as well as the idea that
7 sometimes somebody saying, "I've got a conflict of
8 interest," and there's empathy for that side because,
9 well, you know, I've gotten to know Joe.
10 I'm not charging obviously anybody here. I
11 don't know. Both sides to me have logical arguments here,
12 but I have concerns about the conflict of interest or the
13 perception of the ability, if you will, to bring money
14 home to one district.
15 Obviously, you know, one out of 48 maybe
16 representatives. The other 47, I don't know, would we be
17 subject to charges?
18 COCHAIR SHIVLER: Senator Anderson.
19 SENATOR ANDERSON: Thank you, Mr. Chair.
20 I think the amendment -- given the population of the state
21 and given the demand that this has for the expert opinion,
22 I think the amendment makes a lot of sense. I think the
23 potential for gain out of this amendment far exceeds any
24 potential abuses through conflict of interest or whatever.
25 So I would ask that we proceed.
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1 SENATOR CATHCART: Mr. Chairman, I'll ask
2 Dave, did you get whatever language we need in to limit it
3 to one school board?
4 MR. NELSON: Yes, if you give me that I'll
5 just incorporate and the intent is no more than one
6 district employee would be represented on the commission.
7 SENATOR CATHCART: On the entire
8 commission.
9 COCHAIR SHIVLER: Representative.
10 REPRESENTATIVE ROBINSON: I had a
11 suggestion for that language, Mr. Chairman. But I think
12 that when we're putting together boards from the public
13 that there is going to be from time to time a member
14 that's going to have a conflict. You're not going to get
15 around that no matter what we're doing.
16 And I feel, too, that the advantages would far
17 outweigh that problem because the chances of a project
18 coming up in that person's district would be limited to
19 the schools within that district. And I wouldn't see it
20 coming up on a regular basis.
21 COCHAIR SHIVLER: There's always the
22 opportunity for conflict with anyone on the board. I
23 mean, a builder, an engineer, if it was in his district,
24 he would make money, whatever. So I think that's just the
25 nature of the beast. But I think that it is still one
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1 vote, Mr. Baker. There's six others.
2 Any more discussion on that?
3 REPRESENTATIVE SIMPSON: Question.
4 COCHAIR SHIVLER: All those in favor?
5 Opposed?
6 Dave, you have the language on that.
7 COCHAIR SHIVLER: Senator Cathcart, you
8 have more amendments?
9 SENATOR CATHCART: Well, Mr. Chairman, in
10 discussing and including the language about seismic
11 ratings, et cetera, in looking through this bill it
12 appears to me that probably on page 9 at the end of line
13 16 what we're talking about are requirements for safe
14 environmental codes, standards, et cetera, we go on to
15 talk about building site requirements and then (iii), it
16 says, "Building performance standards and guidelines,
17 including energy efficiency criteria," insert comma,
18 "seismic ratings and structural integrity."
19 Seismic ratings are important, but if you
20 include that without structural integrity -- structural
21 integrity might be very good in Cheyenne for a specific
22 building because of the location we're in regarding
23 seismic rating, but that same building may not work in
24 Jackson Hole.
25 Now, I'm not certain. I know the committee
175
1 talked about inserting that language into the bill. I'm
2 not sure if that's the best place. Or page 11, line 9
3 where it says, "...the condition of the school building
4 and facilities including seismic ratings and structural
5 integrity," maybe that should go in both places.
6 MR. NELSON: Madam Chair, page 9
7 incorporates them into the adequacy standards. Page 11
8 incorporates them into the needs assessments. I wouldn't
9 object to either or both places.
10 MR. CROMWELL: Mr. Chairman, seismic
11 standards would be incorporated by local building code, so
12 I think that probably the most apropos forum is the fact
13 that we've got an issue with some buildings that don't
14 conform to current standards that we need to go back and
15 assess.
16 So I would think you would want to put it under
17 facility assessments. It wouldn't hurt to put it both
18 places. Can you duplicate that? Under current building
19 codes any new buildings are going to be built to those
20 standards.
21 SENATOR CATHCART: Mr. Chairman, I don't
22 have a preference on that. I just wrote that note in my
23 bill as we were working through it and somebody needed to
24 raise the amendment.
25 COCHAIR SHIVLER: Senator Anderson.
176
1 SENATOR ANDERSON: As long as we're on
2 page 9, I have a question and it has to do with line 13
3 and building site requirements. And I guess the question
4 would be of staff. Maybe I need to study the bill a
5 little bit more, but does this bill adequately address the
6 commission's participation in purchase and acquisition and
7 cost in regard to site locations?
8 And the reason I ask this question, we have
9 encountered so many times problems with sites with
10 buildings in this state in regard to soil conditions and
11 water conditions and all of those things, and it seems so
12 many times that public buildings wind up on least
13 desirable land locations because they're not attractive
14 for development or whatnot.
15 And I think that we need to at least address
16 these thoughts and take a close look at those other
17 aspects of site requirements, site purchase, site cost,
18 site acquisition.
19 COCHAIR SHIVLER: Senator Anderson, before
20 we get on to that, I think we need to go ahead and vote on
21 this.
22 SENATOR CATHCART: Mr. Chairman, I would
23 move that amendment, and if it is okay to include it on
24 both page 9, line 16 and page 11, line 9, I would move it
25 that way, if there's no reason we shouldn't do that.
177
1 COCHAIR DEVIN: Is there a second?
2 REPRESENTATIVE BAKER: Second.
3 COCHAIR SHIVLER: You know, it is
4 redundant on page 9, but it doesn't hurt anything to be
5 redundant.
6 SENATOR CATHCART: Mr. Chairman, if we
7 don't need it there, I'm not suggesting we put it in.
8 REPRESENTATIVE SIMPSON: I'm hesitant to
9 put it in the standard because on line 8 it is uniform
10 standards for the adequacy of buildings and facilities.
11 Are we saying that every -- I guess they have to meet the
12 seismic --
13 COCHAIR SHIVLER: It is redundant. It
14 says it in the Uniform Building Code.
15 So it is fine with you to put it on 11?
16 SENATOR CATHCART: Page 11, line 9, I so
17 move.
18 REPRESENTATIVE BAKER: Second.
19 SENATOR MASSIE: Question.
20 COCHAIR SHIVLER: Those in favor, please
21 say aye.
22 Opposed?
23 You have that, Dave?
24 MR. NELSON: Yes.
25 COCHAIR SHIVLER: I'm sorry, Senator
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1 Anderson.
2 SENATOR ANDERSON: I think I've pretty
3 well said it all and won't repeat, other than the fact
4 that I have a question and the possible potential
5 amendment with regard to other aspects of building site
6 requirements, and I've raised those as being purchase and
7 acquisition costs and I guess the question is do others on
8 this committee feel that site requirements are adequately
9 addressed or is there some need for further amendment to
10 expand on that?
11 COCHAIR SHIVLER: Dave.
12 MR. NELSON: Maybe it might be best to
13 include -- we do direct the local districts in their
14 facility plans on page 15, lines 9 and 10, about land
15 requirements and that sort of thing, that they have to let
16 the commission notify. Maybe in both places where we're
17 talking about them as part of the uniform standards as
18 well as some overt action by the districts when they're
19 assembling their plans, if you want to get more specific
20 that might be another avenue to look at to amend.
21 SENATOR ANDERSON: Mr. Chair, what I might
22 do is just request that staff align line 13, page 9 with
23 page 15 somehow, just align those, make those consistent.
24 MR. NELSON: Sure, I can do that.
25 COCHAIR SHIVLER: We don't need to vote on
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1 that.
2 SENATOR ANDERSON: That's satisfactory to
3 me.
4 (Recess taken 3:15 p.m. until 3:35 p.m.)
5 COCHAIR SHIVLER: Senator Cathcart, any
6 more amendments?
7 COCHAIR DEVIN: I had one we discussed
8 this morning, page 8, top on line 2 where we talked about
9 "the commission shall employ a director who has
10 demonstrated competency," and I would like to recommend
11 that we strike the words "who will" and "have facilities
12 planning and construction" and not specify that it be
13 school because he does have the right later in the
14 paragraph to employ the powers and he has people on his
15 commission. So I would just be interested in that we not
16 narrow our world in case we find a really good candidate
17 that wouldn't have school experience.
18 SENATOR CATHCART: Second.
19 COCHAIR SHIVLER: That's a good amendment
20 because that's a hard specialty to find, and anyone that
21 had a background in facilities planning management
22 construction and schools aren't that unique.
23 Any other discussion on this?
24 SENATOR ANDERSON: Question.
25 COCHAIR SHIVLER: Question.
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1 All of those in favor.
2 Opposed.
3 You have that, Dave?
4 MR. NELSON: Yep.
5 REPRESENTATIVE SIMPSON: Mr. Chairman, do
6 we distinguish between buildings and facilities?
7 MR. NELSON: They're synonymous. We call
8 them buildings and facilities, the way it is -- and that's
9 a carryover from previous language.
10 COCHAIR SHIVLER: Senator Massie.
11 SENATOR MASSIE: Page 8, Mr. Chairman,
12 while we're there I'll do the simple one. Bottom of page
13 8, line 24, after the word "municipal" put the words "or
14 county."
15 REPRESENTATIVE SIMPSON: Second.
16 COCHAIR SHIVLER: I'm sorry, where? Which
17 line?
18 SENATOR MASSIE: Page 8, line 24, after
19 the word "municipal" to insert the words "or county."
20 COCHAIR SHIVLER: Have a second on that?
21 REPRESENTATIVE SIMPSON: Second.
22 SENATOR ANDERSON: Second.
23 COCHAIR SHIVLER: Those in favor.
24 Opposed.
25 REPRESENTATIVE BAKER: Have enough seconds
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1 to --
2 COCHAIR SHIVLER: Dave, do you have that?
3 SENATOR MASSIE: Mr. Chairman, also I
4 wanted to broach a topic with the rest of the committee
5 here to see if we would want to do an amendment, I'm
6 thinking back to the discussion that we had a session or
7 two ago concerning the high schools up in Weston County
8 where we were being asked to and we eventually did
9 appropriate money to build a new high school in Upton and
10 a new high school in Newcastle.
11 And there was quite a bit of debate whether or
12 not it would have been in the State's on perhaps the
13 County's best interests to build simply one high school
14 for the students to go to. And it gets into the whole
15 issue of consolidation and I don't necessarily want to
16 bring up that.
17 I'm wondering if we don't want to give this
18 commission the ability in its recommendations to the
19 legislature on what to fund to give them the ability to
20 look at the option of consolidating educational services
21 when it comes down to building new facilities, that we
22 give them several options, several things they can look
23 at, major maintenance, renovation, tearing it down,
24 whatever.
25 I'm wondering if one of the other options
182
1 shouldn't be perhaps it just making more sense, given the
2 demographics of the area or whatever, to simply teach high
3 school at an existing facility and perhaps send the
4 students there, build a high school somewhere that's
5 centrally located to two high schools as a way of
6 consolidating, if nothing else, to give them the option,
7 have them take a look at it. It is still something that
8 has to be approved by the legislature.
9 COCHAIR SHIVLER: Dave.
10 MR. NELSON: Kind of as a language to look
11 at is on page 14, lines 3 through 5. Now, this is not
12 commission charge, this is what is to be included in the
13 local district facility planning process. And there is
14 some thoughts along that line as Senator Massie is
15 pointing out already incorporated in their facility
16 planning process, and this would go -- but that's some
17 language to maybe guide you on.
18 SENATOR MASSIE: And, Mr. Chairman, I was
19 thinking about inserting language there perhaps or also
20 over on page 21. Taking a look at that language there, I
21 wasn't really quite sure what we meant by modification of
22 school boundaries, if we're talking about district
23 boundaries or simply the actual physical boundaries of a
24 school site which doesn't really get at what I was trying
25 to get at.
183
1 So perhaps it may be wise if we want to move in
2 this direction, I have some wording to insert that wording
3 to make it clear that this is something that the
4 commission would have the ability to do to recommend to
5 the legislature.
6 SENATOR CATHCART: Mr. Chairman.
7 COCHAIR SHIVLER: Senator Cathcart.
8 SENATOR CATHCART: Mr. Chairman, I
9 certainly don't think that what Senator Massie is talking
10 about gives this commission authority to consolidate
11 districts. We certainly wouldn't want to go that far, but
12 where it makes practical sense in some cases may be one
13 high school could serve two districts, I certainly think
14 that that would be something that we legislators would
15 want to know. If it is the difference between one $10
16 million high school or two $8 million high schools, it may
17 make some sense to at least consider the recommendation in
18 some cases.
19 COCHAIR SHIVLER: Representative Baker.
20 REPRESENTATIVE BAKER: Mr. Chairman, a
21 case in point, the handout that came from the department,
22 the first school district on the schools in immediate
23 need, first school district on that, a significant number
24 of the students that will be -- go to the middle school
25 and to the Rocky Mountain High School main building travel
184
1 within two miles of another district's campus school
2 grounds all in one location to drive six miles back to the
3 building that we're asked to rebuild right here as a
4 building immediate need. And I think that is very, very
5 significant. And if you've got some language, Senator
6 Massie, I think I would be anxious to hear it.
7 COCHAIR SHIVLER: I think that could
8 certainly be a function of the five-year plan, too. In
9 areas where you have declining populations and you're both
10 looking at a five-year plan, and as you said, they're a
11 couple miles away, we have several schools in that
12 situation in the state, I think at that point the
13 commission could certainly say, "Look, it looks like for
14 the next five years your high school is going to be half
15 of what it is right now. Perhaps we should put these two
16 together."
17 Do we need to give them language for that? I
18 think it would be good to have the language in that they
19 could recommend it to the state or the legislature.
20 MR. NELSON: I would welcome it if you
21 have some thoughts.
22 SENATOR MASSIE: Mr. Chairman, I have
23 language for both places. This is the one I think is the
24 primary one and it is the recommendation to the
25 legislature, it would go on page 21 after line 12 and it
185
1 would be section (c), the previous one is (b), so this
2 would be section (c), and these are things which the
3 commission needs to do.
4 And the wording would be this, and I'll read
5 through it first and then I can go slower: In determining
6 the most cost-effective method in meeting capital
7 construction needs, the commission may consider
8 consolidating educational facilities within, between or
9 among districts. The legislature must approve any
10 consolidation of educational facilities between two or
11 more districts.
12 COCHAIR SHIVLER: Don't limit it,
13 necessarily two or more could be within a district.
14 SENATOR MASSIE: Mr. Chairman, if it
15 was within a district the school board could probably do
16 that.
17 COCHAIR SHIVLER: But would it?
18 SENATOR MASSIE: Yes, that's a good point.
19 I see.
20 COCHAIR DEVIN: Mr. Chairman.
21 COCHAIR SHIVLER: Madam Cochair.
22 COCHAIR DEVIN: Would there be any merit
23 early in this in saying the commission may recommend
24 consolidating -- or how did that read? Because it
25 actually sounded initially like they might be able to
186
1 consolidate, yet later you say that the legislature, but
2 it would be one of their recommendations.
3 COCHAIR SHIVLER: Right.
4 SENATOR MASSIE: The way it reads -- and I
5 wish I had written this out and given a copy to everybody.
6 It would have been easier. I apologize for that -- in
7 determining the most cost-effective method in meeting
8 capital construction needs, the commission may consider
9 consolidating educational facilities within, between or
10 among districts.
11 COCHAIR DEVIN: Recommending
12 consolidation.
13 SENATOR MASSIE: Okay, may consider
14 recommending consolidating.
15 COCHAIR SHIVLER: I got most of that.
16 COCHAIR DEVIN: Before I suggest that,
17 what they would be doing is a recommendation, if I
18 understand it.
19 SENATOR MASSIE: Yes.
20 COCHAIR DEVIN: So that would specify the
21 level of authority.
22 SENATOR MASSIE: Maybe I should say may
23 recommend.
24 SENATOR CATHCART: Mr. Chairman,
25 wouldn't -- everything the commission does, though,
187
1 ultimately ends up being a recommendation to the
2 legislature, correct?
3 COCHAIR SHIVLER: I agree that by putting
4 that in the language it is a lot less --
5 SENATOR CATHCART: Threatening.
6 COCHAIR SHIVLER: When we get it to the
7 House and Senate, it is going to be a lot less
8 threatening.
9 SENATOR ANDERSON: Given the sensitivity
10 of the issue, I think we need to be explicit.
11 SENATOR MASSIE: So shall I read it
12 slower? In determining the most cost-effective method in
13 meeting capital construction needs, the commission may
14 recommend consolidating educational facilities within,
15 between or among districts.
16 The difference in between and among is between
17 is two districts, among is two or more.
18 The legislature must approve any consolidation
19 of educational facilities between two or more districts.
20 COCHAIR SHIVLER: Madam Cochair.
21 COCHAIR DEVIN: Let me just ask one
22 question of clarification. Now, we currently allow --
23 this bill specifically addresses capital construction and
24 is it limited to that because we currently allow two
25 districts to come together now and decide on
188
1 consolidation.
2 That would not -- would this phrase in any way
3 preclude or require legislative approval of that versus
4 only in capital construction -- can we assume this applies
5 only to capital construction, does not interfere with the
6 other consolidation pieces?
7 MR. NELSON: I made that assumption, and
8 we're not saying District Number 1 consolidates with
9 District 7, what we're saying is the high school shall be
10 shared by both districts, right?
11 SENATOR MASSIE: That's correct.
12 MR. NELSON: Under law there's a procedure
13 for districts to consolidate. You're absolutely right. I
14 don't think we're circumventing.
15 COCHAIR DEVIN: Would not require
16 legislative approval on to that process because we put
17 this in.
18 MR. NELSON: I think we're just talking
19 about, quote, educational facilities; isn't that right?
20 REPRESENTATIVE MASSIE: That's correct.
21 COCHAIR DEVIN: It gets muddied after a
22 while.
23 REPRESENTATIVE MASSIE: Sure, absolutely.
24 COCHAIR SHIVLER: Okay. Do you move that?
25 REPRESENTATIVE BAKER: Second.
189
1 COCHAIR SHIVLER: Any discussion on that?
2 Those in favor.
3 Opposed?
4 Dave, you have all of that? If not, Senator
5 Massie will give you a copy of it.
6 Anything else?
7 SENATOR MASSIE: Mr. Chairman, one other
8 thing. It is a question. At the bottom of page 23, line
9 24, I was wondering if that citation should be 21-15-117
10 rather than 118.
11 MR. NELSON: I think it would be 118
12 because the building -- it wouldn't hurt probably to say
13 both, but I think 118 needs to go in there because that's
14 the exact remedy. They choose either do it level 1, minor
15 capital outlay project; or number 2, a major capital
16 outlay project. Because we're saying first level, major
17 maintenance payments; second level, minor; third level,
18 major, and they've got to decide among the three remedies
19 so that's their budget. That's what they base the budget
20 on.
21 SENATOR MASSIE: I understand,
22 Mr. Chairman. When I first read it I thought we were
23 talking about all the buildings in general which is
24 covered more under 117 which is where they determine what
25 buildings are going to be built. And I think they even
190
1 come up with cost estimates there. But I understand what
2 you're saying.
3 Okay. That's everything I had, Mr. Chairman.
4 I did have one question, though. And that is
5 back on the section we just dealt with on page 8. With
6 regard to the director, it didn't seem clear to me who
7 appoints the director. We talk about the commission
8 employing a director, but who actually appoints the
9 director, the commission or the governor, because both can
10 discharge a person, which I find somewhat problematic when
11 you're working for two bosses.
12 But it is not real clear as to who actually
13 appoints this personnel. I think the intent was to have
14 the commission employ him. They would hire him. That
15 language about the removal is kind of so that it can be a
16 contractual at-will sort of position.
17 SENATOR CATHCART: Mr. Chairman.
18 MR. NELSON: It is language that we use
19 for those kinds of positions generally. But, I mean,
20 that's not saying it can't be tweaked. If it bothers you,
21 we can certainly address it, but that's where that came
22 from.
23 COCHAIR SHIVLER: Senator Cathcart.
24 SENATOR CATHCART: Mr. Chairman, it seems
25 clear to me. I just assumed the commission would do that.
191
1 But when Senator Massie asked the question, maybe we
2 should just take this moment and say, "The commission
3 shall select and employ," or --
4 SENATOR MASSIE: Employ.
5 SENATOR CATHCART: If there's any question
6 on that.
7 COCHAIR SHIVLER: Is that in the form of a
8 motion?
9 SENATOR CATHCART: Sure.
10 COCHAIR DEVIN: How does Water do that?
11 COCHAIR SHIVLER: Water Development.
12 SENATOR CATHCART: Actually water
13 development.
14 MR. NELSON: The governor.
15 SENATOR CATHCART: Works with the director
16 but the governor appoints that person.
17 SENATOR MASSIE: I guess, Mr. Chairman,
18 that's one of the reasons I brought this up, is that I
19 don't know what year we passed that constitutional
20 amendment where we got away from sort of the commission
21 style of government to where the governor now more
22 directly appoints the agency heads rather than a
23 commission.
24 So I'm wondering, you know, whoever it is that
25 appoints you, you tend to work for them, and -- even if
192
1 the governor can remove you, so who do we want for the
2 allegiance and loyalty of this individual to go to, the
3 commission or the governor?
4 COCHAIR SHIVLER: The way it is written
5 now, if the commission appoints them and hires them the
6 governor can fire them if he doesn't like them. That
7 could be a one-day job.
8 No, I agree. I think that we should make that
9 fairly clear. And I think it best -- my personal feeling
10 is it is best the commission hire these people because
11 this -- this person because they're the one he's working
12 for.
13 So we have the motion. Do we have a second on
14 that?
15 SENATOR MASSIE: Second.
16 COCHAIR SHIVLER: Any discussion?
17 Those in favor?
18 Opposed?
19 MR. NELSON: Can I have that restated? I
20 missed that. I'm sorry.
21 SENATOR CATHCART: Just said the
22 commission shall select and employ.
23 REPRESENTATIVE BAKER: Mr. Chairman.
24 COCHAIR SHIVLER: Mr. Baker.
25 REPRESENTATIVE BAKER: Mr. Chairman, I
193
1 knew I had looked this up. 9-1-202 under which the
2 governor or the commission may remove from office says
3 clearly in 9-1-202(b), any person who holds a state office
4 or commission by appointment of the members of a state
5 board, commission or administration may be removed by,
6 (i), the board commission or administrator which appointed
7 him where provided by law; or (ii), the governor for
8 malfeasance or misconduct in office.
9 So the governor couldn't be out there saying, "I
10 don't like the way you part your hair," or whatever. It
11 is misconduct and malfeasance in office is the only way
12 the governor can remove under 9-1-202(b).
13 Now, I don't think the Attorney General is going
14 to challenge him, but...
15 That clarified it for me with reading this
16 together, that he really would be -- he or she really
17 would be working for this commission and malfeasance or
18 misconduct is the only reason the governor could remove.
19 SENATOR MASSIE: Should we add (iii),
20 Joint Appropriation Committee chairs?
21 REPRESENTATIVE BAKER: That the governor
22 can remove.
23 SENATOR MASSIE: No, that you can
24 remove.
25 REPRESENTATIVE BAKER: No.
194
1 COCHAIR SHIVLER: Do we have any more
2 amendments to this bill?
3 REPRESENTATIVE SIMPSON: Mr. Chairman,
4 page 13, beginning at line 14 it talks about the school
5 district facility plan and at line 20 -- this is the third
6 element of it -- any local enhancements to buildings and
7 facilities beyond statewide adequacy standards, and I'm
8 assuming that that wouldn't apply to the pipeline 1
9 projects pursuant to the transition amendment, or do we
10 need -- the pipeline 1 have plans that have been approved?
11 MR. NELSON: Yes.
12 MS. BYRNE: Yes.
13 REPRESENTATIVE SIMPSON: And those were
14 based on standards that were in existence at the time?
15 MR. NELSON: Right, there was no
16 requirement for a local district facility plan under which
17 they were brought. Their plans are more the plans for the
18 project that they're proposing which was through a
19 different process which was they applied for state aid
20 which as part of that application process included plans
21 for the remediation of the inadequacy as they best saw fit
22 which is what the JAC is reviewing.
23 COCHAIR SHIVLER: That was Upton and
24 Newcastle, wasn't it?
25 MR. NELSON: That includes Worland and
195
1 Buffalo.
2 COCHAIR SHIVLER: Pipeline 1, right.
3 MR. NELSON: Pipeline 1.
4 REPRESENTATIVE BAKER: Upton and Newcastle
5 are pre-pipeline.
6 MR. NELSON: They're pre-pipeline.
7 MS. BYRNE: They're fast track.
8 MR. NELSON: They were a long time ago.
9 COCHAIR DEVIN: Mr. Chairman, I think to
10 clarify that, the pipeline 1 projects would not
11 necessarily be affected by this bill and this requirement.
12 MR. NELSON: They came under a
13 different --
14 COCHAIR DEVIN: At all, but that doesn't
15 mean now with the October 2nd decision, aside from this
16 bill, that we might not have -- that we have some expert
17 help working on this because we now no longer have the
18 local bonding piece, we have the state piece and so
19 they -- as we talked about earlier today, they were going
20 to be treated separately, but it doesn't mean those pieces
21 are not going to have to be looked at for purposes of
22 going forward. But they don't have anything to do with
23 this bill.
24 But we still have consulting expertise trying to
25 help us sort out that issue because it depends -- still
196
1 depends how much money the State appropriates and we now
2 need to pick up a huge amount of that local piece. But in
3 order to do that, we've got to determine what is the
4 adequate building versus what is over and above, as I
5 understand it, and Joint Appropriations certainly has more
6 to do with that. But they'll still certainly go through
7 some part of this process but it is unaffected by this
8 bill.
9 REPRESENTATIVE SIMPSON: Mr. Chairman, the
10 statewide adequacy standards that are referred to there,
11 those referred to on page 8, "The commission shall by rule
12 and regulation establish and maintain uniform statewide
13 standards" -- until the commission does that we're going
14 from the DOE rules and regs, right?
15 MR. NELSON: Yes.
16 REPRESENTATIVE SIMPSON: And are those
17 called statewide adequacy standards or are those -- do we
18 need to make a specific reference to rules, regulations or
19 standards in effect?
20 MR. NELSON: Madam -- Mr. Cochair, we do
21 on page 49. We talk about the rules and regulations in
22 place -- no, I'm sorry, page 50, subsection (g) -- wait a
23 minute, I do have --
24 SENATOR MASSIE: It's lines 7 and 8, page
25 50.
197
1 MR. NELSON: Somewhere I thought I
2 referenced -- you're right. It is further down in
3 subsection (g). Those are carried forward until such time
4 as rescinded or amended by the commission, so what that
5 does is just carry forward what we have on the books to
6 date until there's sufficient time to develop those or to
7 alter those.
8 So in effect for any transition post-pipeline
9 1 -- I mean, it gets tricky there, but they've got to have
10 something. But again, they're having experts help them
11 review and design remedies that would address the
12 immediate needs list as well as the Powell projects and as
13 has been discussed earlier, these develop as you --
14 develop as you process these.
15 REPRESENTATIVE SIMPSON: Mr. Chairman.
16 MR. NELSON: I guess the other alternative
17 would be to do nothing until you develop the standards by
18 the commission to the bar that everybody is comfortable
19 with. You have kind of two options, I guess. But you
20 could not proceed until they've been developed, you know.
21 REPRESENTATIVE SIMPSON: Mr. Chairman,
22 school district facilities plans under 21-15-116, would
23 that be covered by subsection (g) on 50, because that one
24 talks about needs assessments, major building and
25 facilities repair and replacement program, or would it be
198
1 best to just cite that on page 50 in subparagraph (g)?
2 MR. NELSON: Are you referring -- when
3 they're out developing the local facility plan? Is that
4 what you're referencing?
5 REPRESENTATIVE SIMPSON: When they're
6 doing their facilities plan and they're wondering which
7 standard they have to meet, they can look at subsection
8 (g) and it will tell them that this applies to the school
9 district facilities plans, or do you think that's not
10 necessary?
11 MR. NELSON: We could spell out -- it is
12 whatever you all feel comfortable with. The transition
13 plan requires the state superintendent and the governor
14 and the commission as soon as they're on board to go out
15 and develop and bring in people to help establish criteria
16 and guidelines for local facility plans to get to the
17 districts in a sufficient time.
18 You know, whatever is comfortable for this group
19 to give guidance to that process I guess is fine. That
20 part comes in under -- and I would recommend you look at
21 this part of the bill where we give the governor the
22 authority to commence that process and to do it on behalf
23 of the commission -- I better grab that amendment.
24 If you all have that transition amendment, and
25 if you go to -- I have to reread that. Just a second.
199
1 REPRESENTATIVE SIMPSON: Okay. I think it
2 is okay. Page 5, line 10, including statewide building
3 adequacy standards. Yeah, it is okay.
4 COCHAIR SHIVLER: Mary Kay.
5 MS. HILL: Mr. Chairman, one important
6 point. There is a distinction between adequacy standards
7 in terms of a building and the facilities guidelines
8 relating to new construction. So you wouldn't want to
9 require the same -- the standards for new construction
10 will be somewhat different from adequacy standards in
11 terms of a safe and efficient building that would apply to
12 existing facilities.
13 So you wouldn't want to cross over into or
14 between those two categories.
15 COCHAIR SHIVLER: I agree.
16 REPRESENTATIVE BAKER: Representative
17 Simpson has brought up a cognizant point that I had missed
18 until this time. We're appropriating approximately a
19 million dollars to school districts to develop facility
20 plans and they may be developing these facility plans on
21 standards that obviously a commission has not developed.
22 So would we want to make sure as we think about
23 this -- and this isn't -- I don't think this is something
24 we have to do tonight, but as we think about this, we may
25 want to make sure that that money does not leave our hands
200
1 until maybe October, November, whatever time the
2 commission gets up and begins to develop those or have
3 those facility guidelines in place, adequate facility to
4 meet the standard.
5 REPRESENTATIVE SIMPSON: Mr. Chairman, one
6 more point on that, to follow up on that, when you look at
7 page 13 and you read the first ten lines of that section,
8 it is specific to the rules and regulations of the
9 commission and then they do it with a representative of
10 the commission. And in this transition period I'm
11 assuming we want to follow this same format, but I'm not
12 sure that statutorily we say that.
13 Maybe we need something in the transition
14 paragraph that would kind of mirror 116 here a little bit
15 regarding the facilities plans, you know, until the
16 commission is up and running and adopts their own rules
17 and regs and has someone who can participate in that.
18 SENATOR MASSIE: Mr. Chairman, I think
19 that these are important considerations but they may be
20 rather complex -- or I know they're rather complex. I
21 wonder if it would be wise for the LSO staff and
22 Representatives Simpson and Baker to get together and come
23 up with some amendments we can consider after the bill has
24 been introduced. That way it will give people plenty of
25 time to think about it and we can make the insertions in a
201
1 calm atmosphere rather than being pressed.
2 COCHAIR SHIVLER: What can be more calm
3 than this group?
4 REPRESENTATIVE SIMPSON: That's fine. I
5 think it needs some thought. I'm kind of muddling around.
6 COCHAIR DEVIN: I guess I would just say
7 that when you're working on that, there has been
8 considerable work on a number of these standards. We have
9 some experience with them. And I would envision from this
10 bill that the majority of them along with the database
11 stuff would be transferred to the commission.
12 Now, I think the commission may well over time
13 add to them and over time, longer time, maybe modify them,
14 but we have actually undergone a certain amount of that
15 process. I wouldn't envision dramatic changes, and I
16 hesitate to delay that planning process getting started
17 because at the local level the more time you give it, the
18 better it is going to be.
19 And we're not going to meet much of a July 1st
20 deadline if we don't get that underway. So to the extent
21 we can begin the planning process -- and actually a little
22 bit of that is there at the local level but not to the
23 extent we're asking for. They need to begin to have
24 community meetings and school building meetings and some
25 of that stuff which takes time. So I would think that
202
1 many of those pieces could begin work.
2 REPRESENTATIVE SIMPSON: Mr. Chairman, I
3 would think that one of their first acts would be to adopt
4 the current rules and regulations so they don't have to
5 reinvent the wheel and then go from there.
6 More discussion? So we've agreed that you will
7 come up with some amendments for discussion.
8 MR. NELSON: Yes.
9 COCHAIR SHIVLER: Are we done with
10 amendments? Dave, I believe Cochair said we need to have
11 the roll call vote on this.
12 SENATOR CATHCART: Mr. Chairman, will this
13 go in as a House or Senate bill?
14 COCHAIR DEVIN: Mr. Cochair, I have no
15 idea where the finance bill is coming in. Whatever, the
16 bill that would do the classroom piece, and I'm thinking,
17 I guess I would like input from this committee, but I'm
18 thinking we ought to start one in one House and one in the
19 other unless this committee views they ought to start in
20 the same House. I don't know if we want to make that
21 decision at this point, if you have strong feelings about
22 it.
23 MR. NELSON: It can be at the call of the
24 cochairs. I can get it ready and when it is time to
25 introduce it, we can find out a little more.
203
1 COCHAIR DEVIN: Unless you have strong
2 feelings.
3 SENATOR CATHCART: I don't. I was just
4 curious.
5 (Roll call taken.)
6 MR. NELSON: Nine ayes, one excused.
7 COCHAIR SHIVLER: Okay. We have one more
8 bill to consider. Capital construction, local bonding,
9 and, Dave, would you walk us through this, please?
10 MR. NELSON: I would be happy to. This is
11 a bill that was presented last meeting and was forwarded.
12 Essentially it tries to address both the mill levy
13 supplement and the bond guarantee program by cutting those
14 programs off for future local district indebtedness
15 subsequent to the Supreme Court decision regarding state
16 responsibility for adequacy.
17 It does that on page 2, line 7 for the bond
18 guarantee program, and page 4, lines 23 and 24 for the
19 mill levy supplement program.
20 The other modification that this bill does, it
21 requires local school boards to hold at least two public
22 hearings prior to submitting a question for bonded
23 indebtedness on local enhancements as to the purpose and
24 the explanation for going to the voters for that
25 particular local enhancement bond issue.
204
1 That's essentially the bill. I've also prepared
2 some amendments that deals with some of the issues that
3 were presented by State's counsel, Ray Hunkins, with
4 respect to bond refunding. And essentially we didn't get
5 into that discussion with him today, but essentially he
6 did indicate that the legislature may want to clarify how
7 it wants to apply the mill levy supplement and the bond
8 guarantee program to any refunding of bond issues that
9 were issued prior under the old law, which means that the
10 district was compelled or was required to incur local
11 indebtedness as part of any capital construction remedy or
12 prior to the February 23rd date.
13 And what this does, it does carry that on to
14 refunding issues for both the mill levy supplement and the
15 bond guarantee program with the caveat that what is
16 continued under the mill levy supplement cannot be
17 commingled with other bond issues that were post -- that
18 were subsequent to the February 23rd date, only that
19 portion of the refunding that went to the prior dates
20 would be allowed under the mill levy supplement program,
21 and for the bond guarantee program it just prohibits the
22 commingling of that predebt -- I guess predate debt, from
23 any subsequent issues to continue that bond guarantee for
24 that refunding.
25 COCHAIR DEVIN: Mr. Cochair.
205
1 COCHAIR SHIVLER: Madam Cochair.
2 COCHAIR DEVIN: This specifically goes to
3 the very old bonds under the old program like maybe '91,
4 early '90s, clearly before the Supreme Court decision, but
5 we had the mill levy supplementing program and because of
6 the bond market, it has made sense since February 23rd for
7 some of those to re -- the term we would be more familiar
8 with would be refinance, but the accurate term is refund
9 those bonds, so they've gone back to the market and
10 refinanced them for a better rate, which is good for the
11 taxpayers, it is good for the State, all parties.
12 It was not the intent to catch them in a bad
13 position by the switch from the old program to the new
14 program, so this would still protect those who had
15 credibly and validly entered into the old program of mill
16 levy supplement and keep them whole.
17 And Mr. Hunkins did not touch on it today, but
18 in the letter we received there is a reference to safe
19 harbor and that this -- doing this would not be
20 unconstitutional but would be believed to come under the
21 issue of safe harbor, to protect that piece.
22 So that's the problem for which we asked Dave
23 to -- because there are at least two districts, maybe
24 more, that have done this with their bonds trying to --
25 REPRESENTATIVE BAKER: Mr. Chairman, I
206
1 would move that the Nelson amendment --
2 MR. NELSON: Senator Devin, the Devin
3 amendment.
4 REPRESENTATIVE BAKER: It is yours to
5 move, then.
6 COCHAIR DEVIN: I will second. Just so we
7 get it there.
8 COCHAIR SHIVLER: It has been moved and
9 seconded.
10 Do we have any discussion?
11 SENATOR ANDERSON: Question.
12 COCHAIR SHIVLER: Those in favor of the
13 proposed Nelson/Devin amendment.
14 Opposed.
15 Is there any discussion on the rest of the bill?
16 SENATOR MASSIE: Mr. Chairman.
17 COCHAIR SHIVLER: Senator Massie.
18 SENATOR MASSIE: Thank you, Mr. Chairman.
19 Page 4, subsection (c), I wanted to go over the language
20 on lines 15 through 19. And this is when they hold the
21 public hearings within the district at which the board
22 provides an explanation of the need to obtain district
23 funding in excess of available state funding for district
24 building facilities and the reason state funds are not
25 sufficient to provide district needs.
207
1 Now, that last phrase, is that really the case,
2 I'm wondering, with these meetings? If they're going to
3 be passing local bonds, it is going to be for
4 enhancements, and it is not really a question of whether
5 or not the State has the money to pay for enhancements, it
6 is more of a policy decision that and also a Supreme Court
7 decision that the districts pay for those enhancements
8 which are above actually the standards.
9 So I'm wondering if that last phrase is needed,
10 if we should just maybe put a period after facilities on
11 line 17, saying that it "provides an explanation of the
12 need to obtain district funding in excess of available
13 state funding for district buildings and facilities," and
14 then lop off the rest of that which doesn't seem to really
15 completely portray why they're having the meetings.
16 COCHAIR SHIVLER: Colin.
17 REPRESENTATIVE SIMPSON: Mr. Chairman,
18 right up above that in lines 5 through 7 there's probably
19 some language that you could take and plug in there, in
20 excess of the statewide standards for the adequacy of
21 school buildings and facilities.
22 I'm a little concerned with the statement,
23 established under W.S. 21-15-115 as we were just talking
24 about -- and I think this relates to your proposal,
25 Senator Massie, in that if we're going to cite which
208
1 standard applies, knowing how things work and how you
2 might think it will be three months from now and it could
3 be a year from now before the commission adopts the
4 standards. I don't know if we want to specifically cite
5 that or just say, you know, the standards.
6 But I think you could use that same language,
7 unless your intent is that you don't want any reference to
8 that. But I would be more comfortable having the public
9 know that, yes, this is in excess of the statewide
10 standards and here's why we want it.
11 COCHAIR SHIVLER: So what you're
12 suggesting is it should read "enables the district to
13 provide facilities which are in excess of the statewide
14 standards," period?
15 REPRESENTATIVE SIMPSON: "For the adequacy
16 of school buildings and facilities," period.
17 SENATOR MASSIE: Why don't we just do
18 that?
19 REPRESENTATIVE SIMPSON: Instead of
20 "available."
21 SENATOR MASSIE: Mr. Chairman, why don't
22 we just deal with that amendment up there on lines 6 or 7,
23 and then I have some other wording down below we can do it
24 another time.
25 REPRESENTATIVE SIMPSON: Mr. Chairman, I
209
1 would propose that line 7 on page 4, we put a period after
2 facilities and strike the rest of the line.
3 REPRESENTATIVE BAKER: Line 7.
4 REPRESENTATIVE SIMPSON: Line 7.
5 COCHAIR SHIVLER: And what about 8 and 9?
6 MR. NELSON: I don't think we would put a
7 period. I think we just strike the language.
8 REPRESENTATIVE SIMPSON: I'm sorry, just
9 strike.
10 COCHAIR SHIVLER: Just strike 8 and 9.
11 MR. NELSON: No, just strike "established
12 under W.S. 21-15-115."
13 COCHAIR SHIVLER: Stop with "buildings and
14 facilities."
15 Is there a problem with that?
16 REPRESENTATIVE BAKER: We need to strike
17 the "or."
18 SENATOR ANDERSON: "Are related."
19 REPRESENTATIVE SIMPSON: Yeah, "are
20 related." "Is" to "are."
21 COCHAIR SHIVLER: "Is" would become "are,"
22 is that --
23 REPRESENTATIVE SIMPSON: "Is" to "are" in
24 line 8.
25 COCHAIR SHIVLER: Is that a motion?
210
1 REPRESENTATIVE SIMPSON: Yes.
2 REPRESENTATIVE BAKER: Second.
3 COCHAIR SHIVLER: Any discussion?
4 Those in favor, please say aye.
5 Opposed.
6 Dave, that's clear?
7 MR. NELSON: Yes.
8 COCHAIR SHIVLER: Senator Massie, I think.
9 SENATOR MASSIE: Here's some wording.
10 Down on line 16 we would say, moving back up so it makes
11 sense, "hold two public hearings within the district at
12 which the board provides an explanation of the need to
13 obtain district funding."
14 Then I would insert the words "for building
15 features that are in excess of building and facilities" --
16 "of state buildings and facilities standards."
17 COCHAIR SHIVLER: I'm sorry, would you
18 read that again?
19 REPRESENTATIVE MASSIE: On line 16, and
20 some of this is existing language after this, but "obtain
21 district funding for building features that are in excess
22 of state building and facilities standards."
23 MR. NELSON: Period.
24 REPRESENTATIVE BAKER: Period. And then
25 you would drop the rest of that sentence.
211
1 SENATOR MASSIE: Right.
2 REPRESENTATIVE SIMPSON: How about
3 "building and facilities standards that are" --
4 COCHAIR SHIVLER: You want to --
5 REPRESENTATIVE SIMPSON: You used
6 features, building and facilities features.
7 SENATOR MASSIE: That's what I meant to
8 say. Are you talking about for building features?
9 REPRESENTATIVE SIMPSON: "Building and
10 facilities features that may" --
11 SENATOR MASSIE: So it would read "obtain
12 district funding for building and facility features that
13 are in excess of state building and facility standards."
14 COCHAIR SHIVLER: Period, and then strike
15 "in excess of available state funding."
16 SENATOR MASSIE: Yeah, some of that you
17 could use some of the existing wording that fits into my
18 amendment as well. But yes.
19 COCHAIR SHIVLER: In other words, strike
20 the remainder of 16, 17, 18 and 19.
21 COCHAIR DEVIN: Second.
22 COCHAIR SHIVLER: We have a second.
23 Any discussion?
24 Those in favor, please say aye.
25 Opposed.
212
1 Have that, Dave?
2 MR. NELSON: Yes.
3 SENATOR MASSIE: Mr. Chairman, one
4 question, last one, with regard to Lander, were you going
5 to ask this also?
6 COCHAIR DEVIN: Well, we need to fix it, I
7 guess.
8 SENATOR MASSIE: Lander has already issued
9 their bonds and when they issued their bonds it was in
10 expectations of a mill levy supplement. With this
11 language here we're saying they're not going to get a mill
12 levy supplement.
13 Are there some problems or at least I wanted to
14 bring that up so folks understand what the implications
15 are of the language on page 4 and 5.
16 COCHAIR DEVIN: Mr. Cochair.
17 COCHAIR SHIVLER: Madam Cochair.
18 COCHAIR DEVIN: Mine was slightly
19 different, which I guess I need to clarify. Then, as I
20 understand it, Lander has a bond guarantee -- has already
21 been given a bond guarantee, and I was more concerned
22 about the bond guarantee part of it because I think we
23 can't -- this would discontinue both and we -- since
24 that's out there and the bonds have been sold, we probably
25 need to take care of that.
213
1 I am not -- I have mixed -- on the other piece I
2 have mixed feelings because their obligation now is only
3 going to be to the enhancements for their bond versus
4 their contribution to the necessities, so I think they are
5 two separate issues. And so it wasn't the same issues.
6 It is the same school, Lander, but they are two separate
7 issues.
8 Is that clear, or is that clear as mud?
9 REPRESENTATIVE SIMPSON: It is clear. It
10 is confusing, but it is clear.
11 SENATOR MASSIE: Mr. Chairman, the reason
12 I brought up the other one is obviously when the bonds
13 were voted on in Lander I assume that there was a
14 discussion. I obviously don't live in Lander, but I
15 assume that there was a discussion that if this was passed
16 not only was Lander going to get the $20 million that the
17 legislature appropriated to it, but also there was going
18 to be some kind of bond supplement or mill levy supplement
19 that came along with it. And at the time that may or may
20 not have been true.
21 I just wanted to throw it out to this committee.
22 If there's anything that we need to do or anything that we
23 should be aware of, I wanted to put it out. I don't know
24 if there's anyone in the audience that needed to comment
25 on that or not.
214
1 REPRESENTATIVE SIMPSON: Mr. Chairman, is
2 it possible for the State to assume that bonded
3 indebtedness? I mean, that may be a way to --
4 SENATOR MASSIE: Yes, there is, actually.
5 REPRESENTATIVE SIMPSON: -- to pay for
6 that school with bonded indebtedness even though it has
7 been appropriated.
8 REPRESENTATIVE BAKER: There's --
9 Mr. Chairman.
10 COCHAIR SHIVLER: Representative Baker.
11 REPRESENTATIVE BAKER: There is certainly
12 a way that, yes, the State can pick up and pay off any
13 bonds that it wishes to.
14 REPRESENTATIVE SIMPSON: Mr. Chairman,
15 you're protecting the purchasers of the bonds.
16 COCHAIR SHIVLER: I'm sorry.
17 COCHAIR DEVIN: Mr. Cochair, I guess I
18 would have the sentiments that we need to probably draft
19 the language that would give the bond guarantee, since it
20 has already been granted; however, I think we need more
21 information as we proceed along here of what is an
22 adequate facility versus what is enhancements, because
23 Lander in the end is only going to have to pay for the
24 part that's enhancements, as I read any of this. We're
25 going to need to pay for the rest of it. And I think
215
1 probably the $20,000 more than covers it, but one of the
2 reasons that they -- I mean, I've heard estimates --
3 20,000 -- I'm sorry -- 20 million. Only a zero or two.
4 MR. NELSON: It is late.
5 COCHAIR DEVIN: But anyway, I've heard
6 figures anywhere from 13 to 15 million would have built a
7 building that covered the adequacy pieces and that the
8 extra is for things like three gyms, separate facilities
9 in some cases, et cetera, and they truly are community
10 enhancements.
11 And that's still to be -- we still have contract
12 people, I think, working on trying to sort that out with
13 Lander. So I wouldn't be real keen on moving a piece that
14 would not undo a part that's already been granted. A bond
15 guarantee, we probably need that language in here, and I
16 would think that staff would probably draft that. But I'm
17 not real ready personally to move on any mill levy
18 supplement for enhancements in this case when we've
19 already probably appropriated more money than this
20 project --
21 MR. NELSON: You will get information back
22 too from the state department on the district's response
23 to the concerns that were expressed by Hunkins and, you
24 know, they were notified of this, why did you do this, how
25 come, you know, get more information that way also.
216
1 COCHAIR SHIVLER: You say that's coming?
2 MR. NELSON: Yes.
3 COCHAIR DEVIN: And, Mr. Chairman, I think
4 that this bill already -- this issue already resides in
5 Joint Appropriations Committee, so we would have a couple
6 of opportunities. One would be that depending on what
7 develops it could be amended into the Joint Appropriations
8 piece with the budget bill, or as this bill comes forward,
9 if we have sufficient more information to make decisions,
10 we could amend at that time.
11 I don't think we have the information to support
12 it, personally.
13 COCHAIR SHIVLER: Are you through with
14 that?
15 SENATOR MASSIE: Mr. Chairman, yes, and
16 we've been talking all day about the various contingencies
17 that surround this issue and all the things that we have
18 to take care of. And I just wanted to throw that out in
19 the end so that everyone understands there's this other
20 issue out there that we may or may not want to deal with
21 somewhere down the line. If the amendment comes along as
22 Senator Devin noted, we would have a better understanding
23 of what that means.
24 COCHAIR SHIVLER: Senator Cathcart.
25 SENATOR CATHCART: Mr. Chairman, I think I
217
1 share that sentiment specifically regarding Lander, as
2 especially those in the Senate because that's where that
3 budget amendment and budget footnote language originated.
4 The number was picked out of the air, frankly, $20
5 million. That is plenty of money to build a school at
6 Lander.
7 The problem was, and we encountered it in
8 Appropriations, was it said we shall appropriate 20
9 million. It didn't say up to 20 million. I certainly
10 think 20 million is adequate to do everything.
11 With that said, I personally don't think we
12 should provide mill levy supplement to enhancements.
13 COCHAIR SHIVLER: I think we have someone
14 in the audience that would like to speak.
15 MS. SCOTT: I'm Mary Keaton Scott, with
16 George K. Baum and Company and have worked with Lander on
17 their project for a couple of years and no one from the
18 district could be here today and I'll try to give you what
19 I know about the project, and it is similar to what
20 Senator Massie said.
21 After the February decision the district did ask
22 if they had to have the bond election and they were told
23 yes, they did have to have it. And I don't think anyone
24 contemplated -- I certainly didn't hear any discussion in
25 February or March regarding whether or not the mill levy
218
1 supplement would continue to apply to school district's
2 debt.
3 And they did go to the voters and did tell them
4 the impact of the mill levy increase taking into account
5 the mill levy supplement, and I think rightfully so. That
6 was the law at the time. And I think they've gone through
7 the process the entire way and tried to ask questions that
8 they felt were relevant.
9 And they've always received answers to those
10 questions and they have followed that advice, answers from
11 the Attorney General's Office, answers from the Department
12 of Education, and they did request that their grant fund
13 be released, I understand, in October and were told by the
14 state department -- and I think Mrs. Hill can help me on
15 this or shed some additional light because I was not
16 involved in those conversations -- that they did have
17 to -- they could not release the grant funds pending
18 further discussions with the legislature.
19 And so they had bills coming in and they felt
20 they had to issue the bonds and start covering the cost of
21 the project. They couldn't wait until the legislature met
22 in February, so it seems to me they're being held -- this
23 discussion with regards to the mill levy supplement
24 applying to the enhancements has come about since the
25 October decision and in regards to Mr. Hunkins'
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1 interpretation of that opinion.
2 And I think I'm speaking as an advocate, I
3 guess, for the district and knowing the history I guess a
4 little bit, but I do think when they held the election in
5 good faith, they talked about the mill levy supplement and
6 told their voters what the mill levy increase would be
7 absent -- taking into account the mill levy supplement.
8 So it is really difficult for the district to
9 sit here now and say they're not going to receive the mill
10 levy supplement based on information that is really quite
11 new with regards to the mill levy supplement applying to
12 the enhancements.
13 So with that I'm sure that they would be happy
14 to provide you with any chronology of events with regards
15 to their discussions with the state department and the
16 Attorney General's Office and the advice they requested
17 and what advice they received.
18 So I'm sure they would be more than happy to
19 respond to any requests for additional information, and I
20 just thought I would interject that.
21 COCHAIR SHIVLER: Thank you, Miss Scott.
22 Senator Anderson.
23 SENATOR ANDERSON: Could someone -- thank
24 you, Mr. Chairman -- provide figures. I know we put the
25 20 million in. What would be the amount of the mill levy
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1 and then the mill levy supplement? How does that break
2 out in dollars?
3 MS. BYRNE: Mr. Chairman, I ran those
4 numbers for FY '03. The mill levy supplement for Lander
5 on the new issue would be 132,432. They have an
6 outstanding debt right now, some old debt. Combined their
7 mill levy supplement would be 172,085. They have old debt
8 and this new issue, if you wanted to include that.
9 SENATOR ANDERSON: So about 300,000.
10 MS. BYRNE: Don't add those figures. I'm
11 sorry. The total is 172,000. We'll round it. Would be
12 for next year's mill levy supplement to the district.
13 That's based on the latest assessed valuations and student
14 enrollments.
15 COCHAIR SHIVLER: So you don't put those
16 together; in other words, they're going to refinance both
17 bonds?
18 MS. BYRNE: Both bonds. They were allowed
19 to come in for application to the state department for
20 mill levy supplement. Both of them would be combined as
21 payment for principal and interest. The mill levy
22 supplement would be assessed against that.
23 COCHAIR SHIVLER: Miss Scott.
24 MS. SCOTT: It would pay approximately a
25 third of their debt payment. The mill levy prior to the
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1 bond issue was 2.34 mills and the projected increase net
2 of the mill levy supplement was 1.5 mills for a total of
3 3.8 mills. That is what the voters were presented, taking
4 into account the mill levy supplement. So I haven't done
5 the math to see what 130 some thousand would add to
6 their --
7 MS. BYRNE: It would still be about 32
8 percent of the total payment would be paid by the mill
9 levy supplement.
10 COCHAIR SHIVLER: Mary Kay.
11 MS. HILL: Mr. Chairman, there are a
12 sufficient number of lingering questions that are
13 questions unique to Lander. There needs to be -- the
14 department is aware that there needs to be a definition of
15 which features of the project are, in fact, enhancements.
16 And there were a number of discussions during
17 Joint Appropriations Committee of debate in August when
18 the funds were freed up of what state funds could be used
19 for and what the committee was -- their instruction that
20 state funds could not be used for.
21 The mill levy supplement program, though much
22 beloved to us, has been declared unconstitutional now in
23 every round by the Supreme Court, so it becomes really an
24 issue that we have to turn over to the Attorney General's
25 Office for a direction in terms of how to proceed because
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1 there are implications for that mill levy supplement
2 program that could carry forward into some of your other
3 bond issues, not only for the pipeline projects but also
4 local bond issues down the road.
5 So we are preparing the next round of
6 Lander-specific questions that will be forwarded to the
7 Attorney General's Office with a request for guidance on
8 those.
9 COCHAIR SHIVLER: Senator Anderson.
10 SENATOR ANDERSON: Thank you. I think
11 this question is rhetorical. It is so off the wall, but
12 given the emergency nature of the situation that
13 precipitated the situation originally, the condition of
14 the building being unsafe, how does the current condition
15 relate to any emergency funding that we might be able to
16 provide in order to meet that condition, the current
17 bonding situation being a portion of that condition?
18 In other words, they've incurred an obligation
19 in good faith that's related to an emergency situation.
20 We have an emergency funding source out there. Is there
21 such a way that we can take those emergency funds and
22 apply them to the situation we're discussing now?
23 MS. HILL: Mr. Chairman, Senator, no. The
24 emergency funds are specific for certain uses that are
25 intended to be temporary in nature.
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1 To go back to the Lander situation, Lander --
2 the funding for Lander came in through an amendment
3 offered on the Senate side and that footnote was separate
4 and distinct from the footnote that provided funds for the
5 other pipeline districts. And it was contingent on Lander
6 submitting the schematic design documents going through a
7 value engineering process. Though the funds -- once the
8 district complied with that requirement those funds were
9 then to be made available.
10 Part of that was also that the district would
11 meet the bonding requirements, and to date the department
12 has had a position that local resources needed to be
13 expended before state resources could be tapped. So
14 Lander, given their fast-track circumstance compared to
15 the pipeline districts, was allowed to tap into state
16 funds once the bonding requirement was in place.
17 Then you fast forward to October 2nd and we
18 received that Campbell III decision and so the discussions
19 at that point with the district were very tentative and
20 that we couldn't -- we knew we could not require the
21 bonding. And that point was made very clear to the
22 district post-October 2nd, that the State may not require
23 a bonding.
24 The district was very eager and probably remains
25 so to move forward for its new facility because they're
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1 strapped and they've got scheduling difficulties and some
2 very difficult circumstances. And they wanted to bid and
3 I believe continue to want to bid in what they would
4 consider to be a favorable bidding climate this winter.
5 So while they were advised late this fall that
6 we knew we could not require the bonding, we also were not
7 at liberty to release state funds given the current state
8 of the law, and so you received, I believe, Madam Cochair
9 and Mr. Cochair, a letter from the district subsequent to
10 some of those conversations saying that the district after
11 analyzing all of its options and understanding the
12 uncertainty involved -- that the district in order to be
13 able to put out bids in that favorable bidding climate was
14 going to go ahead and issue the bonds so that they could
15 begin the design process that would be subsequent to the
16 bid process later on this winter.
17 So to answer your question, after about 15
18 minutes, we can't use emergency funds for those, but there
19 are very unique questions that pertain only to Lander that
20 will require further scrutiny.
21 COCHAIR SHIVLER: Thank you, Mary Kay.
22 REPRESENTATIVE SIMPSON: Mr. Chairman,
23 what was the total amount of the bond issuance for Lander?
24 MS. BYRNE: 6 million.
25 MS. HILL: 6 million, and change.
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1 REPRESENTATIVE SIMPSON: Mr. Chairman, it
2 seems to me that -- I mean, obviously the school is going
3 to cost more than 6 million to build even at the adequacy
4 standard. Maybe the appropriations committee should
5 consider paying off the bond. They already have the 20
6 plus the 6.
7 SENATOR CATHCART: And 20 is plenty.
8 COCHAIR SHIVLER: That's a $15 million
9 project.
10 REPRESENTATIVE SIMPSON: I mean, you
11 know --
12 COCHAIR DEVIN: Well, Mr. Cochair, I need
13 to ask of staff, since we have a bond guarantee issue
14 sitting out there on that, do we need to amend this bill
15 to the point that they are included?
16 MS. BYRNE: You do.
17 COCHAIR DEVIN: In the bond guarantee
18 since that has already been done.
19 MR. NELSON: My understanding, Madam
20 Chairman, is that when the bonds will be issued
21 December 1 -- is that the date the actual bonds are
22 issued?
23 MS. SCOTT: The bonds are sold and dated
24 November 1.
25 MR. NELSON: So the actual issuance date,
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1 they got their approval apparently from the State Loan and
2 Investment Board like in mid-October or something at that
3 meeting for issuance, so we would just change that date to
4 November 1. I could do that.
5 REPRESENTATIVE BAKER: But, Madam Chair,
6 we can't back up on a guarantee that's been issued.
7 COCHAIR DEVIN: But if we don't amend this
8 bill we're essentially doing that. Do you have wording
9 for that or could we ask that --
10 MR. NELSON: I could do it right now,
11 Madam Chair. Page 2, line 7, I think we delete the
12 language part of February only and insert on or before
13 November 1, 2001 only. That would then cover that one
14 bond issue.
15 MS. SCOTT: Excuse me, Madam Chair. Did
16 you say prior to November 1?
17 MR. NELSON: On or before November 1.
18 COCHAIR SHIVLER: Madam Cochair.
19 COCHAIR DEVIN: I would move that
20 amendment. The amendment was to on here put on or before
21 November 1st, 2001, and that would allow the guarantee
22 only of that bond issue because it has already been
23 granted, and the bonds have gone out on the market, and
24 they did sell some of those very, very recently, but
25 nonetheless, the guarantee was there. And so I think we
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1 need to do that because the bill will stop the guarantee
2 if we don't. So that's the one piece we probably do need
3 for sure.
4 REPRESENTATIVE SIMPSON: Second the
5 amendment.
6 COCHAIR SHIVLER: Second on that.
7 Is there any discussion on that?
8 SENATOR MASSIE: Question.
9 COCHAIR SHIVLER: Those in favor of
10 that -- is that your motion?
11 COCHAIR DEVIN: That was mine.
12 COCHAIR SHIVLER: -- of Senator Devin's
13 motion, please say aye.
14 Opposed.
15 REPRESENTATIVE BAKER: Ex post facto, it
16 is a constitutional guarantee. It can't be undone.
17 COCHAIR SHIVLER: So we changed it
18 November 1st.
19 REPRESENTATIVE BAKER: Don't need it.
20 COCHAIR DEVIN: Mr. Cochair, I guess I
21 will just reiterate, which I think is becoming clear, the
22 issues on this are complex enough that we don't know
23 standards, we don't have our data back on what is the
24 adequate building versus what are the enhancements. Yes,
25 the vote went out to the people with being promised a mill
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1 levy that was a local decision when some of this was
2 known, although it was also a good faith piece.
3 But on the other hand, in good faith the voters
4 maybe need to be told they don't have to pay for that
5 basic piece anymore and do they still -- it wasn't
6 presented to them the choice of the enhancements. So my
7 interest in this bill moving on and the reason that we
8 kept it on the table is that we don't end up in this muddy
9 situation in any other district.
10 But I'm not sure we got the data to go any
11 further, but I would like to see this piece proceed so
12 that we don't end up with the situation with any other
13 district.
14 But I don't know that I have the data to do
15 anything more with Lander today.
16 REPRESENTATIVE BAKER: Do you need a
17 motion on the bill or is it before --
18 MS. BYRNE: We do.
19 COCHAIR SHIVLER: We do need a motion.
20 Was that a motion you just --
21 COCHAIR DEVIN: I will make it a motion.
22 COCHAIR SHIVLER: We have a motion.
23 Do we have a second?
24 SENATOR ANDERSON: Second.
25 REPRESENTATIVE BAKER: Second.
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1 COCHAIR SHIVLER: Two seconds. We're in
2 good shape.
3 MR. NELSON: I need a roll call. This is
4 a roll call thing.
5 Is there a house designation on this one or is
6 this just to be determined by the cochairs?
7 COCHAIR SHIVLER: Let's give this one to
8 the Senate. Is that all right?
9 COCHAIR DEVIN: Unless it needs to go with
10 the other capital piece.
11 MR. NELSON: Do you want to as cochairs
12 designate?
13 COCHAIR DEVIN: Let's do that.
14 (Roll call taken.)
15 MR. NELSON: Nine ayes.
16 COCHAIR SHIVLER: Madam Cochair.
17 COCHAIR DEVIN: We were asked in the large
18 committee the question of fire and the inability of
19 districts to get fire and disaster insurance, and we were
20 asked if we had done anything about that. I believe that
21 I asked staff and they indicated that the department has
22 looked into it.
23 MR. NELSON: Yes, and was unable to find
24 any identification of that.
25 COCHAIR DEVIN: They've not had any
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1 problems with that, not had anything brought to them, so
2 we have nothing that would appear to be able to address at
3 this point in time. So I wanted you to know.
4 I had no other issues on my notes that we were
5 supposed to follow up with.
6 REPRESENTATIVE BAKER: Mr. Chairman.
7 COCHAIR SHIVLER: Well, committee, this is
8 probably our last meeting unless there's some kind of --
9 do you have something?
10 REPRESENTATIVE BAKER: I have one point to
11 make. I have been like a bulldog trying to get enrollment
12 numbers for 2001, the current school year. Fall
13 enrollment numbers and projections have been made that
14 they probably would not be falling as much as before. The
15 numbers are actually close to as high as they've ever
16 been. These are preliminary numbers. We've lost another
17 1760 students.
18 COCHAIR SHIVLER: How does that go with
19 the -- I haven't looked at it yet -- the little schedule
20 we made up last year, what did that predict?
21 REPRESENTATIVE BAKER: That predicted
22 about 1400, I believe.
23 COCHAIR SHIVLER: So we lost more than
24 that.
25 REPRESENTATIVE BAKER: We lost a little
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1 higher than that. I don't remember exactly.
2 COCHAIR SHIVLER: I have a copy. What was
3 it?
4 REPRESENTATIVE BAKER: 1760. Those
5 numbers are not exact but they're within 5.
6 MS. BYRNE: Within 5.
7 REPRESENTATIVE BAKER: And, Mary, thank
8 you very much for being my --
9 COCHAIR SHIVLER: Thank you, committee. I
10 think we can be proud of our work. I hope the Senate and
11 the House feel that way when we get it to them next year.
12 REPRESENTATIVE SIMPSON: Good job,
13 Cochairs.
14 SENATOR ANDERSON: You've done an
15 excellent job and so has staff. I feel a little like a
16 hockey goalie in a game where they've lost three points.
17 COCHAIR SHIVLER: Any other comments?
18 We appreciate the public being here.
19 Dave.
20 MR. NELSON: I just wanted to point out
21 that the Select Capital Finance and Investments Committee
22 will have legislation similar to yours with respect to
23 bond mill levy supplement, the bond guarantee program and
24 also the financing, so this may have to be worked out
25 during the session because they will come forward with
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1 some recommendations also.
2 COCHAIR SHIVLER: All right.
3 Thank you again.
4 (Meeting proceedings concluded
5 4:55 p.m., November 29, 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 232 pages constitute a full, true and correct
8 transcript.
9 Dated this 17th day of December, 2001.
10
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12 JANET DEW-HARRIS
Registered Professional Reporter
13 Federal Certified Realtime Reporter
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