August 18 and 19, 2003
Joint Business Council Office, Fort Washakie, Wyoming (August 18, 2003)
Wyoming Honor Farm, Riverton, Wyoming (August 19, 2003)
Note: The Council met jointly with the Select Committee on Tribal Relations and the Joint Business Council of the Wind River Indian Reservation on August 18, 2003.
Representative Fred Parady, Chairman
Senator April Brimmer Kunz, Vice Chairman
Senator Irene Devin
Senator Keith Goodenough
Senator Rae Lynn Job
Senator Grant Larson
Senator Jayne Mockler
Senator John Schiffer
Representative Pete Anderson
Representative Tom Lockhart
Representative Randall Luthi
Representative Wayne Reese
Representative Ann Robinson
Representative Harry Tipton, Chairman
Senator Cale Case
Senator Bob Peck
Senator Bill Vasey
Representative Lorna Johnson
Representative Del McComie
Dan J. Pauli, Director; Mark Quiner, Assistant Director; Dave Gruver, Assistant Director; Dave Nelson, School Finance Manager; Mary Byrnes, Senior Legislative Analyst; Don Richards, Senior Research Analyst; Brian Farmer, Associate Research Analyst; Wendy Madsen, Legislative Information Officer
Please refer to Appendix 1 to review the Committee Sign-in Sheet for a list of other individuals who attended the meeting on August 19, 2003.
All meeting materials and handouts provided to the Committee by the Legislative Service Office (LSO), public officials, lobbyists, and the public are referenced in the Meeting Materials Index, attached to the minutes. These materials are on file at LSO and are part of the official record of the meeting.
The Council met jointly with the Wyoming Legislatureís Select Committee on Tribal Relations and the Joint Business Council of the Northern Arapahoe and Eastern Shoshone nations. The participants spent the majority of the day touring significant sites around the Wind River Reservation, including cultural sites, school facilities, and water projects. After the tour, Chairman Parady called the joint meeting of the Management Council, the Tribal Relations Committee, and the Tribal Business Council to order at 4:00 p.m. at the Saint Stephenís School. Please refer to Appendix 2 to review the Committee Meeting Agenda. The meeting focused on issues of common concern among the parties.
The participants discussed education issues, including funding related to reservation schools, attendance rates at the schools, innovative preschool programs, curriculum issues, and textbook needs. Mark Howell, Legislative Liaison for the Northern Arapahoe Tribe, noted that $185,000 had been appropriated for Saint Stephens School and they have been working with the Joint Business Council to release the funds. Currently, the money has not been released due to the concern of the Governor's Office regarding jurisdiction over the matter. The Governor would like jurisdiction to be in state court. Mr. Burton Hutchinson Jr., Joint Business Council Chairman, noted that holding up the agreement for the release of the funds is unfortunate since all parties are concerned for children.
Participants discussed water development needs on the reservation. Mr. Mike Besson, Wyoming Water Development Commission (WWDC) director, summarized water development issues between the State and the tribes and explained that the Joint Business Council has been working to resolve water issues on the reservation. Mr. Besson noted that the Eastern Shoshone Tribe has been working with the WWDC on surface water supplies for utilities. He summarized water litigation issues between the State and the tribes. Mr. Besson discussed legislation from the 2003 legislative session that helped resolve drinking water issues on the reservation and explained a water delivery project to increase the efficiency of flood irrigation projects on the reservation.
Senator Peck noted that a great deal of progress has been made related to water projects on the reservation and that the tribes are still working on upstream storage sites. He noted that legislation from the 2003 legislative session allowed the Joint Business Council to apply for WWDC funds. Mr. Gary Collins, Tribal Water Engineer, provided an overview of potential water development projects on the reservation. Please see Appendix 3. He stressed the need for the tribes to develop infrastructure for water projects and explained plans to apply for WWDC funds to develop such infrastructure.
Senator Kunz noted that the State and the tribes should work collaboratively and not become confrontational on the sovereignty issue.
Representative Doug Osborn and Roger McDaniel, Director of the Department of Family Services, provided the participants with information related to family service issues. The Joint Labor, Health, and Social Services Interim Committee is working on legislation for the 2004 legislative session to conduct a comprehensive study on meeting the needs of poor families in Wyoming. Mr. McDaniel also explained that many at-risk children from the reservation are placed in out-of-home placements off the reservations, including the Boysí and Girlsí Schools.
Senator Peck requested an update on tribal gaming activities on the reservation. Mr. Andy Baldwin, attorney for the tribes, said the tribes are still waiting for the Department of Interior to give guidelines on how to proceed. In the meantime, the tribes are moving forward with plans to build a gaming facility. He explained the three classes of gaming and said that the tribes are currently looking at a 3,000 square foot facility for bingo and eventually are considering a larger permanent facility. The tribes estimate that the gaming facility should create 300 jobs.
Chairman Parady summarized the three issues discussed by the participants: the release of funds for Saint Stephens School; the issues of sovereign immunity and water development projects; and family services issues. Senator Kunz thanked the Joint Business Council for hosting the meeting and providing lunch. The joint meeting ended at 4:45 p.m. and the Council recessed until the next morning. The Select Committee on Tribal Relations also recessed until its meeting the next morning.
Chairman Parady called the meeting to order at 8:10 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda. The Council thanked Mr. Gary Starbuck, Wyoming Honor Farm Superintendent, for hosting the meeting.
Minutes of the June 5, 2003 Management Council meeting were approved with no amendments.
Mr. Mark Quiner introduced Mr. Don Richards and Mr. Brian Farmer, the two new staff hired to fill the research positions authorized during the 2003 legislative session. Mr. Richards outlined proposed policies for the Councilís consideration related to the activities of the general research staff. He noted that staff have already received 10 research requests and have been actively working to produce research, while at the same time developing a long-term process to perform general research for the Legislature. Mr. Richards outlined three main policy issues relating to the new function for the Councilís consideration: who may request research and the prioritization of that research; whether staff will provide anticipatory research; and confidentiality of staff work product.
The Council discussed whether or not requests from individual members should be routed through Management Council first to assign them a priority. Representative Parady noted that part of the purpose of authorizing additional research staff within LSO was to strengthen research capacity for individual members. He suggested that Wyoming adopt a model similar to that in the Montana Legislature that limits the number of hours of staff time devoted to individual legislatorís research requests. Senator Mockler suggested that individual legislators should be allowed to make requests, as staff time allows, without Management Council approving the validity of the request. Representative Luthi suggested that staff use a model similar to prioritization for bill drafting requests, with the understanding that more research requests will come from individual members late in the interim. Senator Kunz moved that research requests be prioritized in the following order: requests from Management Council; requests from committees; and requests from individual members on a first come first served basis, with one-quarter of staff time reserved for individual member requests. She also requested that staff notify the Council if requests from individual members become excessive. The motion passed.
The Council discussed confidentiality issues related to research requests from individual members. Council members deliberated whether the need for individual members to make confidential requests was outweighed by the need for the legislative body to have access to additional research. Mr. Pauli stated that he did not anticipate that many legislators, if asked, would object to allowing staff to sanitize research and take out sensitive information to provide general information to the Legislature on different topics that are of general interest to all members. Following discussion, Representative Luthi moved that staff develop confidentiality provisions for individual legislator research requests that are similar to the confidentiality offered to members when requesting bill drafts. Specifically, the request and the associated requestor, as well as the written response from research staff will not be made available to other legislators without the consent of the requestor. The motion passed.
Mr. Pauli asked whether the Council wanted staff to prepare anticipatory research for legislative consideration, but cautioned that topics chosen by staff may not be topics the Legislature wishes to pursue. Mr. Pauli suggested that it may be more appropriate for staff to bring suggestions for research topics to the Management Council and then the Council can decide whether or not staff should research the issue. Senator Larson moved that staff bring ideas for anticipatory research to the Management Council for the Councilís approval. The motion passed.
The Council also considered ideas for research topics for the new staff to prepare and approved three research topics related to K-12 education, corrections, and the University of Wyoming block grant for interim work for the new research staff. The Council requested a succinct summary of the federal No Child Left Behind Act, including penalties, sanctions, and costs of complying. Related to corrections, the Council requested an assessment of out-of-state placements, state prison populations, and populations in county jails, and a consideration of the potential need for new prison construction. The Council requested a history and summary of the University of Wyoming block grant funding design, the trend of the block grant as a percent of the total budget, the criteria for inclusion in the block grant, and an analysis of what components are included and excluded from the grant. Mr. Pauli added that he will send a periodic reminder to the Council prior to Council meetings asking members to bring ideas for future research to each Council meeting.
The Council directed staff to prepare a letter for review by the Speaker and President addressed to individual members informing them about the new research service and policies related to the operations of the function and describing how individual legislators can use the function. Senator Job also suggested that the letter include a reminder about other research services available to individual legislators from organizations such as the Council of State Governments and the National Conference of State Legislatures. Senator Larson encouraged the staff to recommend policy guidelines to address problems that may occur during the development of this new function.
Senator Kunz moved that the Council resolve itself into Executive Session to discuss school finance litigation with Attorney General Pat Crank and Chief Deputy Attorney General, Mike OíDonnell. The motion passed and the Council resolved itself into Executive Session. After the update, the Council returned to open session.
Chairman Parady explained that the State will receive $50 million from the federal government in two payments of $25 million each under the Jobs and Growth Tax Relief Reconciliation Act of 2003. He explained that a recent recommendation by the Governor to the State Loan and Investment Board (SLIB) to distribute $5 million to local governments from incoming federal funds raised issues about the constitutional authority between the legislative and executive branches of government. Chairman Parady requested that LSO review this issue and noted that there is a difference of opinion between legislative staff and the Attorney Generalís Office about how these funds can be distributed. Both LSO and the Attorney General have provided legal analysis regarding this matter. Please see Appendix 4. Chairman Parady noted that the Governor suggested that a vote by the SLIB Board regarding the distribution of these funds be delayed until the Management Council has an opportunity to discuss this issue and expressed his appreciation that the SLIB Board was willing to delay a decision on this matter until the Management Council could consider the issue.
Attorney General Pat Crank explained the Attorney Generalís position that the Governor has the authority to transfer these funds through the B-11 process into an agency of state government to distribute these funds. He stated that the Governor used the B-11 process to transfer the $5 million to the SLIB Board to distribute to local governments. He noted that the $5 million the Governor elected to distribute to local governments was an arbitrary figure and is not aware of any other federal money with fewer strings attached. He noted that because Wyoming has a citizen legislature, the Governor needs authority to accept unanticipated federal funds when the Legislature is not in session and Wyoming could lose federal funding if the Governor does not have this authority. He stated that the Governor submitted a certification to the federal government for the State to receive the funds. See Appendix 5. Mr. Crank provided the Council with information regarding other federal funds the Governor has distributed during the interim without legislative approval. He noted that these distributions conserved general fund resources. Senator Mockler noted that all of the examples provided were for programs that were specifically authorized by the Legislature and that the Legislature had appropriated funds to these programs and that the funds in question have not been earmarked for a specific program.
Mr. Dave Gruver explained that LSO has provided its legal analysis regarding the distribution of these funds, but neither the Legislature nor the Management Council has taken an official position on this issue at this time. LSO concluded that the Governor does not have the authority to distribute the funds without legislative appropriation. He explained that there are certain circumstances under which the Governor can distribute funds absent legislative approval, but that none of these exceptions are applicable to this debate. He noted that if funds have been appropriated by the Legislature through the budget process then the Governor is authorized to expend additional amounts for that program. However, he noted that these federal funds were not authorized for a specific purpose other than to provide essential state services. He explained that the Legislature may wish to consider what authority it wants to give the Governor under these types of circumstances.
The Council members discussed their understanding of the purpose of the federal act and several Council members raised concerns regarding the Governorís distribution of these funds without legislative approval. Senator Larson noted that his concern with the Governorís distribution of these funds is not with the legality of the action, but that the Governor did not consult with the Legislature about how the money should be distributed. Chairman Parady noted that it is an inherent part of the legislative process to debate fiscal priorities and raised concern that the Governor did not consult with the legislative branch. The distribution represents a singular decision not reached through consensus in open debate, which is the hallmark of the legislative process.
Senator Kunz asked Mr. Crank if there was any provision in the federal legislation that required the funds to be distributed immediately and questioned why the distribution could not be delayed until the Legislature met. Mr. Crank noted that there was a desire to distribute the funds to cities and counties as quickly as possible and that some counties had already included the funds in their budgets. Senator Kunz expressed concern that counties included the funds in their budget prior to distribution. Representative Luthi noted that allowing legislative debate on the distribution of the funds allows the State to consider the best use of the funds. He also noted that the Governor should use the B-11 process sparingly because the Legislature needs to protect its authority to appropriate funds. Chairman Parady noted that the purpose of the Management Council discussion is not to reach resolution on this issue at this time, but to begin the discussion about the distribution of these funds. He noted that members of Management Council will continue to discuss this issue with the Governor.
Chairman Parady asked Mr. Crank to provide an update on water litigation issues within the Attorney Generalís Office. Representative Anderson expressed concern regarding expertise that may be lost by no longer using contracted legal services during the continued negotiations on the North Platte settlement. Mr. Crank noted that, as discussed at the last Council meeting, the Attorney Generalís Office is examining past use of contract counsel. He explained that contract counsel played a vital role in the Attorney Generalís Office strategy in the past.
While he plans to continue to use outside counsel in the future, external counsel will be used in a consultant capacity and not as primary legal representation, which he believes is the role of the staff in the Attorney Generalís Office. The Office continues to use outside counsel in a consultant capacity, assisting internal staff, on the North Platte litigation. Mr. Crank explained that a great deal of work on the North Platte settlement agreement is non-legal work that can be done by the State Engineerís Office. He noted the State Engineer and the director of the Water Development Office will be acting as Wyoming representatives on the North Platte cooperative agreement, with legal assistance provided by the Attorney Generalís Office as needed.
Senator Kunz explained that at the last Council meeting the issue arose whether it is appropriate for non-legislators to chair sub-committees of select legislative committees. A letter from Senator Hanes explaining the situation in regard to subcommittees of the Select Committee On Juveniles was distributed prior to the meeting. The Council agreed that legislators generally should be in charge of sub-committees. Senator Kunz suggested that this issue could be resolved by leadership notifying committee chairmen or by addressing it through a rule change, if necessary. The Council members also discussed the growing use of sub-committees in completing interim work. Senator Kunz expressed concern with the number of sub-committees that have been appointed to conduct interim work. She suggested that this issue be considered at the next Council meeting to determine the appropriate uses of sub-committees. She suggested that each committee be allowed to appoint not more than two sub-committees per interim without Management Council approval. Chairman Parady noted that he is a strong supporter of the use of sub-committees and has asked the house chairmen to assign sub-committees in each committee because he believes it gives newer members an opportunity to take more of a leadership role in the committee process. He agreed that sub-committees should be required to have a minimum number of members and the Council should review the sub-committee process.
Ms. Kathy Emmons, Department of Workforce Services Director, provided the Council with an update on the Departmentís progress. Please see Appendix 6. Ms. Emmons described the programs that were transferred to the Department from other agencies and explained programs that were not moved because they were vetoed in the enabling legislation for the Department. She also explained the division and regional structure of the agency. Ms. Emmons noted that she has been working closely with the directors from the Department of Family Services and the Department of Employment during this transition.
Ms. Emmons does not anticipate cost savings from the program transfers because of the complexity of the programs that they are administering. Representative Reese asked if transferring programs to the new agency has succeeded in providing streamlined services to citizens. Ms. Emmons replied that her agency is continuing to review how to offer a broad array of services to citizens in the most inclusive manner, but that it is difficult to train one employee to have the level of knowledge necessary to effectively explain all programs available. She said the goal is to co-locate employees who offer different services in the same facility. Senator Schiffer inquired about the participation of community colleges in workforce development. Ms. Emmons stated that the community colleges could play an important role in workforce development in the state. Senator Devin noted that the Education Committee has been working for several years to encourage colleges to recognize their responsibilities in this area. The Council members requested that Ms. Emmons provide a report to the chairmen of the Joint Appropriations Committee about the activities of the colleges related to workforce development.
Chairman Parady requested that the discussion related to the Professional Teaching Standards Board rules be delayed until the next Council meeting.
Senator Mockler requested an update on the status of the Oil and Gas Commission rules that were put on the non-consent list for Management Councilís review. Mr. Gruver explained that the rule review found that the Commissionís promulgation of a repeal of a rule related to credits on oil and gas production on new wells that expired in March of 2003 was premature. The Oil and Gas Commission agreed with the LSO Rule Review and the LSO recommendation that the Governor line-item veto the repeal of that rule. Senator Kunz moved that the Council adopt the LSO recommendation. The motion passed.
Mr. Tucker Fagen, the Chief Executive Officer of the Wyoming Business Council, and Steve Achter, Director of Investment Ready Communities at the Business Council, provided the Council with an update on the promulgation of rules by the Wyoming Business Council to distribute funds related to the Business Ready Community Grant and Loan Program. Mr. Achter estimated that decisions on grant applications should be finalized in April or May of 2004. Chairman Parady noted that an accelerated timeline for the grant awards would be useful, so that the Legislature knows the demand for the funds prior to the beginning of the 2004 Budget Session. The Council members provided a number of suggestions to Mr. Fagen and Mr. Achter related to the proposed rules.
Senator Mockler suggested that the Business Council include a public comment period prior to the award of grant funds. Senator Larson recommended that the language regarding what types of entities the funds will be awarded to be expanded to be inclusive of needs in addition to industrial and business parks. Senator Schiffer raised concerns about the constitutionality of Section 5 of the draft rules, questioning if the proposed rules provide a subsidy to an individual private business. Mr. Fagen noted that the statute is clear that funds can only be awarded for infrastructure projects. Senator Kunz noted that there is a tension between bringing new businesses into a community without additional competition hurting existing businesses. She recommended that the purpose of the rules be expanded to explain that the intent of the program is not to hurt existing businesses.
Mr. Gruver explained that LSO has raised one area of concern with the proposed rules related to private entities owning infrastructure. Senator Job suggested that the Business Council review the purpose section of the rules to clarify that applicants for the grant funds must be governmental entities. Mr. Achter stated that there could be situations in which the developer of a business park could include privately funded infrastructure. Mr. Fagen and Mr. Achter stated they would review the proposed rules in light of the recommendations made by members of the Management Council.
Mr. Gruver explained to the Council that LSO received rules from the Department of Agriculture that need to be approved by Management Council as part of the rule review process. He noted that the changes to the rules are non-controversial. LSO received the rules late in the promulgation process and needs Management Council approval of the rule review immediately to forward to the Governor, so that the Department will not need to begin the promulgation process again. The Council approved the rules.
Rules approved by postcard ballot
Appendix 6A lists the Council's action on rules taken by mail ballot since the last meeting at which rules were considered.
Mr. Jim ďBubbaĒ Shivler, the Director of the School Facilities Commission, provided the Council with an update on the school facilities capital construction process. The Commission has received preliminary figures from school districts related to their five-year plans for capital construction and major maintenance projects. See Appendix 7. Mr. Shivler noted that the current figures are preliminary numbers and the Commission is to begin evaluating the requests district by district. The Commission must accept or reject each districtís plan by September 30, 2003. He said that the Commission would ensure that the estimates are in line with the Commissionís guidelines and if the Commission rejects the district plan, the district has 60 days to resubmit their plan.
He noted that Commission engineers and architects have been visiting each district to determine if preliminary requests for the Five-Year Plan are appropriate. He explained that the Commission has three options regarding each districtís five-year plan. Based on Commission guidelines for projects, the Commission can accept, modify, or reject the plans. Mr. Shivler senses the Commission will reject most of the district plans, allowing the districts to modify and resubmit their plans. If districts resubmit plans that do not follow the Commissionís project guidelines, the Commission does have the option to modify the plan, but the Commission would prefer the districts to make these determinations. Mr. Shivler noted that the State has already spent in excess of $300 million on capital construction projects for the pipeline schools and major maintenance. Mr. Shivler will provide the Council with firmer figures related to the capital construction and major maintenance requests at the Councilís October meeting.
The Council discussed the Joint Transportation and Highways Committee request to add the issue of graduated licenses to the interim work, as requested at the June Council meeting. Representative Anderson moved to approve that the Transportation Committee add graduated licenses to its 2003 interim topics. The motion failed.
Mr. Pauli explained that the Select Committee on Legislative Technology has proposed several changes to the Management Council policy related to laptop computers. Recommended changes include clarification that one-third of the computers will be replaced each year without specifying when the purchase of new computers will be made, to allow technology staff to obtain the best prices on equipment. The Select Committee also recommended removing the requirement to install the Groupwise e-mail system on laptops, because of the infrequent use of this software by legislators. The Committee recommended, this year, new computers be distributed to the House and Senate on a 2:1 ratio and distributed within each house based on seniority. In the future, computers will be replaced on a rotating bases, with clarification in the policy that laptops that have been in service for three years will have to be turned in for replacement. Finally, the Committee recommended that legislators should be allowed to purchase more than one surplus computer at fair market price. Representative Lockhart moved to accept the changes to the Management Council computer policy recommended by the Select Committee on Legislative Technology. The motion passed.
Mr. Steve Sommers provided the Council with a summary from the July Consensus Revenue Estimating Group (CREG) update. He noted FY03 investment income and sales and use tax are running behind projections, but that mineral revenues are running well ahead of projections. He explained that investment income fell short of the CREG estimate by $17 million and sales and use tax revenues appear to be about $10 million short of the CREG estimate. These two revenue sources are major contributors to the general fund. He said the CREG is looking at making negative adjustments to those figures in the future. He noted that severance taxes and federal mineral royalties are running well ahead of projections, with an extra $200 million received for FY03. He estimated that the State should have in excess of $400 million to carry over in the next biennium even after the negative adjustments for investment income and sales and use taxes for consideration of exception budget requests during the 2004 Budget Session.
Representative Anderson asked Mr. Sommers if the fiscal staff have compared different formulas for gas valuation related to 02HB0087. Mr. Sommers explained the analysis staff has completed to date. The Speaker requested that staff look into the availability of the most recent data regarding natural gas valuation. Mr. Sommers said that his staff will provide a response regarding this issue to the Council at a future date.
Ms. Wendy Madsen explained the ongoing development of the responsibilities of the legislative information officer. She noted that the authorization of the additional research staff will allow more focus on other information services, specifically legislator education, civic and public education efforts, media relations, and information management. She explained that in the area of media relations, the information officer can provide logistical assistance to the media, training to the media about the legislative process, publicize activities of the Legislature, and promote the legislative institution. The Council generally agreed that the information officer should not act as a spokesperson for the Legislature and should not draft news releases for individual members. However, the information officer can help coordinate media interviews with members of the Legislature and can provide training for individual members about how to draft news releases and coordinate other media relations training.
Ms. Madsen also provided information to the Council about Americaís Legislators Back to School Week, sponsored by the National Conference of State Legislatures. She explained that the purpose of the event is to focus national attention on civic education during the same week across the country. Senator Job moved to send information about NCSLís Legislatorís Back to School Week to all legislators and curriculum directors in the state and to have the information posted on the Department of Educationís website for teachers. The motion passed.
The Council considered a request from the Joint Corporations, Elections and Political Subdivision Committee for additional funding for interim committee work. The Council approved the additional $7,000 requested by the Committee to complete its interim work.
The Council also considered a request for additional funding from the Joint Subcommittee on State Employee Benefits. Senator Kunz noted that this request also relates the Councilís discussion about the appropriate uses of sub-committees. Senator Mockler moved to approve the request for $7,610 for the Joint Subcommittee to complete its interim work. The motion passed.
Senator Schiffer raised an issue regarding meetings of the Joint Appropriations Committee. He noted that the Appropriations Committee is being stretched more, but he believes that it would be useful for committees with appropriations in their bills to be able to have a full hearing on this legislation prior to the session. He suggested that the first two days of budget hearings could be reserved for committees to present legislation that contains major appropriations and recommended that the Council look at this issue in the future.
The Council will meet again on October 9 and 10, 2003 in Gillette. Senator Mockler requested that Superintendent of Public Instruction, Trent Blankenship, provide an update on the activities of the Department of Education at the next Council meeting, similar to the update provided by the Department of Workforce Services.
There being no further business, Chairman Parady adjourned the meeting at 3:20 p.m.
Representative Randall Luthi, Secretary