State Capitol, Room 30
Juneau, AK 99801-1182
Phone: (907) 465-3873
Fax: (907) 465-3922
PO Box 1441
Wrangell, AK 99929-1441
Phone: (907) 874-2318
Fax: (907) 874-3470
50 Front Street, Suite 203
Ketchikan, AK 99901
Phone: (907) 225-8088
Fax: (907) 225-0713
An Act exempting joint action agencies from regulation by the state or municipalities; relating to the relationship between a joint action agency and the public utilities that form the joint action agency; relating to powers and immunities of a joint action agency; requiring filing of the joint action agency agreement; relating to the financial affairs of a joint action agency; declaring certain joint action agencies to be political subdivisions for certain purposes; relating to liability and indemnification of officers, employees, and agents of joint action agencies; and defining 'agency agreement' as used with reference to joint action agencies.
February 25, 2001
Senator Robin Taylor's office at (907) 465-3873
The Twenty First Legislature passed legislation creating the Power Cost Equalization Endowment and authorizing the sale of the Four Dam Pool Projects to the local utilities and communities. The PCE Endowment was funded by an appropriation form the Constitutional Budget Reserve and from proceeds from the sale of the Four Dam Pool projects. Governor Knowles signed these bills (HB 446 & HB 447) into law in May 2000.
The Four Dam Pool Utilities and the State have been diligently working to complete this complex transaction by December 31, 2001. At closing, the proceeds from this sale will be deposited into the Power Cost Equalization Endowment.
The Four Dam Pool communities and utilities have created a Joint Action Agency (JAA), which will become the owners of the Four Dam Pool Projects. However, during the legal review of this new organization, a variety of technical issues were raised concerning the tax and regulatory status of the JAA, the powers of the JAA, and the relationship between the JAA and its member utilities.
Senate Bill 84 will resolve these issues so that the sale of the Four Dam Pool projects can be completed as envisioned and the Power Cost Equalization Endowment can be fully funded.
SB 84 specifically addresses the following four issues:
- DEBT, OBLIGATION OR LIABILITY OF THE AGENCY
Section 6 amends AS 42.45.310(c) to provide that debts, obligations and liabilities of a JAA formed under AS 42.45.310 are not the responsibility of any of the public utilities that form the agency. The amendment also provides that a JAA has the powers of a public utility and the immunities of a public utility.
- FEDERAL TAX STATUS OF JOINT ACTION AGENCY
Although the Joint Action Agency was formed by specific authorizing legislation, because its members are both municipal and cooperative utilities its characterization for federal tax purposes is uncertain. Obtaining favorable federal tax status as a "government entity" is essential for the Joint Action Agency to operate on a tax-exempt basis and have the ability to issue tax-exempt bonds and to provide maximum flexibility to allow local ownership of the individual projects in the future. A key factor relied on by the Internal Revenue Service in determining whether an entity has governmental status is the nature and scope of the entity's condemnation or eminent domain powers. Currently, the Joint Action Agency legislation is silent as to the Joint Action Agency's condemnation powers. To achieve the necessary federal tax treatment for the Joint Action Agency Section 6 of SB 84 amends AS 42.45.310 to provide that debts, obligations and liabilities of a joint action agency are not the responsibility of any of the public utilities that form the agency or the State and provides that a Joint Action Agency has the powers of a public utility and the immunities of a public utility. New paragraph (c)(5) specifically grants to the Joint Action Agency the eminent domain powers granted to the State and municipalities in order to carry out the Joint Action Agency's authorized purposes. This expanded condemnation power may be exercised, however, only within the boundaries of the power projects the Joint Action Agency purchases from the State.
- STATE TAX STATUS OF JOINT ACTION AGENCY
The Joint Action Agency's tax status under Alaska law is a central factor to determining the federal tax status of the Joint Action Agency. State law currently provides that the Joint Action Agency is "subject to state and local taxes to the extent any of the public utilities forming the agency is subject to that particular tax". The impact of this provision and the tax status of the Joint Action Agency under Alaska law are not clear, as the JAA is comprised of both cooperative member utilities and municipal member utilities. Section 9 of SB 84 amends AS 42.45.310 to exempt the Joint Action Agency from all forms of state and local taxation, other than amounts that are payable under the electric cooperative tax as a result of retail power sales by the Joint Action Agency.
- POTENTIAL LIABILITY OF MEMBER UTILITIES FOR CLAIMS AGAINST THE JAA
State law currently provides that the JAA will have a "separate and distinct legal existence from the public utilities" that form the JAA. However, neither AS 42.45.300 or AS 42.45.310 includes language that specifically insulates the public utilities that form the JAA from liability for claims against the Joint Action Agency. Given reported Alaska case law on shareholder liability and the absence of specific protections in the Joint Action Agency statute, there is some risk that claims against the JAA might also be asserted against the member utilities. To ensure that the Joint Action Agency is treated for all purposes as a separate and distinct legal entity from its member utilities, Section 7 of SB 84 amends AS 42.45.310 to include provisions similar to those contained in other Alaska statutes to expressly protect the member utilities from any liabilities of the Joint Action Agency. Section 13 of SB 84 is amended to limit the individual liability of directors and officers of the Joint Action Agency, consistent with the other Alaska statutory provisions.
- EXEMPTION FROM REGULATORY COMMISSION OF ALASKA REGULATION
Because the JAA is granted the powers of a "public utility" under AS 42.05, it is not entirely clear whether JAA is fully or only partially exempt from regulation by the RCA under AS 42.05. To create consistency within AS 42.05 with respect to the regulation of the Joint Action Agency, Sections 1, 2, 3 and 4 of SB 84 make conforming amendments to existing statutory provisions and add a new subsection (o) to AS 42.05.711 to provide that the Joint Action Agency is exempt from all RCA regulation with respect to its ownership and operation of and the power sales from the existing Four Dam Pool projects. This general regulatory exemption is, however, limited in duration and stays in place only until such time as the indebtedness incurred by the Joint Action Agency to the State in connection with the acquisition of the projects is retired.
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