Legislature(2003 - 2004)
04/23/2004 02:12 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 551 - DRUG FELONY DISQUALIFIES TEACHER Number 0411 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 551, "An Act relating to the issuance of teacher certificates to and revocation of teacher certificates of persons convicted of felony drug offenses and to the issuance of limited teacher certificates to persons convicted of certain crimes involving a minor and felony drug offenses." CHAIR McGUIRE, speaking as Chair of the House Judiciary Standing Committee, sponsor of HB 551, surmised that the committee would be amending the bill such that the new language being inserted [on page 1] would only reference misconduct involving a controlled substance in the first degree - AS 11.71.010. REPRESENTATIVE GARA indicated that he would also like to try to keep in some of those second, third, and fourth degree crimes by defining them; for example, keeping in and defining the crimes involving a school zone. CHAIR McGUIRE suggested that such a change could be done conceptually. Number 0318 RYAN MAKINSTER, Staff to Representative Lesil McGuire, Alaska State Legislature, presented HB 551 on behalf of Representative McGuire, Chair, House Judiciary Standing Committee, sponsor of HB 551. He said that recent news articles have highlighted the fact that there have been a few teachers who have been convicted of drug convictions. And although there is no desire to have a person's youthful mistakes keep him/her from pursuing the goal of being a teacher, or to punish great teachers for youthful mistakes, HB 551 does focus on the issue of felony drug convictions. He acknowledged that members have a desire to alter the bill such that it will focus specifically on first degree crimes involving controlled substances, which, he surmised, involve activities at a "criminal enterprise" level or manufacturing activities, or activities with the intent to distribute. MR. MAKINSTER relayed that HB 551 does not pertain to "personal use or private possession." He posited that Representative Gara has the right idea in wanting to retain reference to some second and third degree crimes involving controlled substances because there is specific language in those statutes that addresses drug offenses [occurring on or near] school zones and [involving minors]. CHAIR McGUIRE referred to Amendment 1 and said she liked it; Amendment 1, a handwritten amendment with handwritten corrections, read [original punctuation provided]: At page 1 line 10 delete "- 11.71.040" At Page 1 line 11 after "subsection, [sic]" insert "or under AS 11.71.020 - .040 if the conviction is for Distribution, or for possession or manufacturing with the intent to distribute, or in violation of AS 11.71.030(a)(3)(A) or AS 11.71.030[sic](a)(4). Number 0201 REPRESENTATIVE GARA offered to explain Amendment 1. He said: Ideally what we want to do is get at people who are selling drugs, people who are manufacturing or possessing with the intent to sell drugs, and the school zone things also. ... So, we can clearly do [crimes in the] first degree, we can clearly do the school zone things because those statutory provisions are very identifiable, [but] where my proposed amendment gets a little vague is [where] I also add any of the second through fourth degree [crimes] that involve possession or manufacturing with the intent to distribute. [That's because] distribute could be sharing with the person next to you - distribute isn't defined as sales. And so we could be a little overbroad and say manufacture or possess with the intent to distribute, but we would, arguably, possibly, be getting into people who are sharing in a room with a bunch of friends when they're 19 years old, because that is distribute under the statute. So then I thought about saying distribute with the intent to sell, but the truth is, the way the criminal process works, when you get convicted of a crime - let's say you get convicted of [a] second or third degree crime ... - the records will show you were convicted under that statute [but] it's going to be very hard to figure out what the conduct was that you were convicted of. We won't know whether you were trying to sell or not sell. And so there's really no perfect answer, to trying to answer those questions, for those people who do second or third or fourth degree crimes, whether they were trying to make money off of it or not. So we could be under broad and just be safe and do first degree [crimes] and then the school zone violations and the school bus violations, or we could try [to] figure out a way to do this ... thing about second and third and fourth degree manufacturer and distributions, but we'll never know whether those were sharing distributions or sales distributions. ... I don't really know what to do about those. My sense is, leave them out, we flag it for the school district, and the school district doesn't hire them ... - but maybe they do. ... I don't have the perfect answer. TAPE 04-72, SIDE A Number 0001 MR. MAKINSTER, in response to a question, said that a person's teaching certificate could be revoked if he/she is [convicted], whether for a current offense or a past offense that has come to light; being convicted could also prevent someone from obtaining a teaching certificate. REPRESENTATIVE SAMUELS said he didn't think that a person should necessarily have something he/she did when younger held against him/her; however, if one is already a teacher and is convicted of selling a controlled substance, he/she should lose his/her job. REPRESENTATIVE GARA responded: I think that's the hard part [about] addressing [this issue]; you do want to get all the people who sell, but this statute's not defined in terms of [selling]. The first degree [crime] ... is defined in terms of [selling] - so hard drugs, if you sell them, you're disqualified - but in the second and third and fourth degree, the crime is for distribution. And distribution [wouldn't have to] be sales, it could be passing [a controlled substance] around a room. ... I think also the second, third, and fourth degrees are different drugs, [and] I don't know the difference between any of them [just by] looking at the statute. I can't tell you ... what a [schedule IA, IIA, or IIIA] drug is. ... This is one of those areas where you either get overbroad and bring in too many things, or don't bring in enough. I don't know how to bring in exactly the number, unless we said at the end, for purposes of this bill, [that] distribution is only distribution for financial gain. ... I think that's what we would want, but I don't think we're going to be able to know [just] by looking at the conviction whether that was a distribution for financial gain - we'll get a record [showing that a person was] convicted of AS 11.71.020, and we won't know what the conviction was for. REPRESENTATIVE SAMUELS reiterated his belief that should a teacher be convicted of selling or distributing [a controlled substance] to a minor, that teacher should lose his/her teaching certificate. Number 0312 REPRESENTATIVE GARA offered his belief that such behavior is covered under the statute pertaining to misconduct involving a controlled substance in the first degree. In response to a question, he noted that the bill includes the language, "or a law or ordinance in another jurisdiction with elements similar to an offense described in this subsection", and that this is not a new provision. "It's done in the criminal law now; ... in various circumstances, something that you do outside, depending on the elements, can count towards a higher sentence or ... extradition," he added. REPRESENTATIVE OGG indicated that he is inclined to have the bill pertain to all felons [who are convicted of this type of crime], and offered his belief that someone who just shares a small amount of a controlled substance, as opposed to selling it, would be a misdemeanant, not a felon. REPRESENTATIVE SAMUELS asked where the line would be drawn regarding the amounts being distributed. CHAIR McGUIRE noted that the bill currently applies to all felons who are convicted of this type of crime, but that testimony in the House Special Committee on Education indicated that there would be more comfort with the bill if it only applied to first and second degree convictions or even just first degree convictions. REPRESENTATIVE OGG noted that the chair of the Professional Teaching Practices Commission (PTPC) is present to testify. CHAIR McGUIRE indicated a preference for narrowing the scope of the bill before taking public testimony. She noted that AS 11.71.030(a)(2) also pertains to delivering a controlled substance to a minor, and asked Representative Gara whether he intended to include a reference to that provision in Amendment 1. REPRESENTATIVE GARA posited that they probably ought to add that reference. CHAIR McGUIRE noted that crimes involving marijuana are referenced in the statute pertaining to misconduct in the fourth degree - AS 11.71.040; that there is a court opinion that affirms a person's right, under the Alaska State Constitution's privacy clause, to grow marijuana for personal use and smoke it in the privacy of one's own home; and that with regard to misconduct involving marijuana, the bill pertains only to felony level crimes. REPRESENTATIVE GARA recommended either having the bill pertain to crimes of misconduct involving a controlled substance in the first degree and those connected with schools and minors, or having the bill, as proposed via Amendment 1, pertain to all crimes that are "possession or distribution in amounts that are reflective of the intent to distribute" but know that it might be difficult to determine such by just looking at what level of crime a person is convicted of. With the latter option, he surmised that they would have to rely on school districts to screen teachers and prospective teachers appropriately. Number 0759 REPRESENTATIVE GARA made a motion to amend Amendment 1 such that it includes at the end: ", or AS 11.71.030(a)(2)". There being no objection, Amendment 1 was amended. Number 0776 REPRESENTATIVE GARA made a motion to adopt Amendment 1 [as amended]. REPRESENTATIVE OGG asked why AS 11.71.030(a)(3)(B), which pertains to possession on a school bus, isn't included in Amendment 1 [as amended]. REPRESENTATIVE GARA said leaving it out is a mistake; therefore, Amendment 1 [as amended] should include reference to AS 11.71.030(a)(2) and AS 11.71.030(a)(3). CHAIR McGUIRE suggested that Amendment 1 [as amended] be withdrawn and reoffered, as a new Amendment 1, to that effect. REPRESENTATIVE OGG noted that currently there is no AS 11.71.030(a)(4). REPRESENTATIVE GARA acknowledged that error and explained that "AS 11.71.030(a)(4)" should instead read "AS 11.71.040(a)(4)". REPRESENTATIVE GRUENBERG asked whether just saying "AS 11.71.040(a)(2)-(4) would be sufficient. REPRESENTATIVE GARA said no. CHAIR McGUIRE concurred, and pointed out that the intent is to have reference to AS 11.71.030(a)(2) and (3) and AS 11.71.040(a)(4); therefore, Amendment 1 should read: At page 1 line 10 delete "- 11.71.040" At Page 1 line 11 after "subsection, [sic]" insert "or under AS 11.71.020 - .040 if the conviction is for Distribution, or for possession or manufacturing with the intent to distribute, or in violation of AS 11.71.030(a)(3), or AS 11.71.030(a)(2), or AS 11.71.040(a)(4). Number 1050 CHAIR McGUIRE asked whether there were any objections to adopting the foregoing as a new Amendment 1. There being none, Amendment 1 was adopted. Number 1066 LARRY WIGET, Executive Director, Public Affairs, Anchorage School District (ASD), noted that members should have in their possession the Anchorage School District's position statement regarding HB 551. He went on to say: Currently the law prohibits the [Department of Education and Early Development (DEED)] from issuing a teaching certificate to a person who has been convicted of a crime - or an attempt, solicitation, or conspiracy to commit a crime - involving a minor. The proposed revisions to HB 551 would not require that a crime had any connection (indisc. - microphone interference) that there was a nexus to the classroom or teaching. Drug convictions have [been] singled out from other felonies [into] class by themselves without any ability to look at the totality [of] individual situations. ... I believe it would be the preference of the ASD to follow more along the guidelines that [are being] suggested in a letter that I just received this afternoon ... from the Professional Teaching Practices Commission, in which the commission has asked its executive director to draft a regulation that would expressly include felony level crimes involving possession of a controlled substance to the list of crimes of moral turpitude. This regulation provides guides to school districts in making employment decisions regarding (indisc.) The commission believes that this will address the concern that prompted the proposed amendment to HB 551 - that's basically our position .... Number 1165 BONNIE BARBER, Executive Director, Professional Teaching Practices Commission (PTPC), clarified that the PTPC currently views possession of a controlled substance for the purpose distribution as a crime of moral turpitude, and noted that the PTPC has revoked the teaching certificate of someone convicted of such a crime. However, although this is the PTPC's current practice, the current regulation does not specifically include such a crime in its list of what constitutes moral turpitude. Because of this lack, she relayed, the PTPC has asked her to draft an amendment to add felony possession to the current regulation pertaining to moral turpitude. CHAIR McGUIRE indicated that the committee is focusing on a statutory fix and would not be opposed to the PTPC also addressing the issue via a change in regulations. REPRESENTATIVE GARA concurred, adding, that the legislature certainly has every intention of letting the PTPC decide that there is additional conduct for which it will not hire a teacher or for which it will terminate a teacher. Number 1265 LAWRENCE LEE OLDAKER, Chair, Professional Teaching Practices Commission (PTPC), after mentioning that he is a professor emeritus at the University of Alaska Southeast, noted that he is providing members with a formal written statement by the PTPC. He went on to say that the PTPC opposes the [change proposed via HB 551] because although the PTPC does not countenance felony behavior involving controlled substances, the PTPC is capable of handling such matters on an individual basis without making such behavior something for which a person would automatically have his/her teaching certificate revoked for life. MR. OLDAKER, too, mentioned that the PTPC is considering altering the current regulation regarding acts of moral turpitude in order to bring it more in line with what is being proposed via HB 551, and indicated that although the PTPC does not condone felony behavior involving controlled substances, it is willing to take into account that a person can change over time and, thus, having a felony conviction for actions taken when he/she is young might not necessarily be a sufficient reason to revoke a teaching certificate for life. CHAIR McGUIRE remarked that the comments from testifiers are well taken, and that the committee is endeavoring to limit HB 551 so that it applies only to the most serious conduct. MR. OLDAKER noted that since 1990 there have been five revocations related to felony convictions involving a controlled substance, and eight revocations related to other behavior. "So we have taken ... effective steps," he opined. CHAIR McGUIRE agreed, but added that as a matter of state policy, she feels it is appropriate to include the proposed change in statute while still allowing the PTPC the latitude to address issues regarding behavior that constitutes moral turpitude. "We're just trying to draw the line at those really serious offenses and the ones that it sounds like you already take action on anyway," she concluded. MR. OLDAKER, in response to comments, clarified that the PTPC is considering adding felony possession of a controlled substance to the list of conduct that is considered moral turpitude. REPRESENTATIVE GARA relayed that some members of the legislature are reluctant to make possession, even felony possession, cause for precluding someone from teaching later on in life. MR. OLDAKER agreed to keep that in mind. At the request of Representative Gruenberg, on an unrelated topic, Mr. Oldaker mentioned some changes to the PTPC's rules of operation that he'd like to see instituted. Number 1737 REPRESENTATIVE GRUENBERG moved to report HB 551, as amended, out of committee with individual recommendations and the accompanying fiscal note. There being no objection, CSHB 551(JUD) was reported from the House Judiciary Standing Committee.
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