Legislature(1997 - 1998)
03/25/1998 03:21 PM House L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 319 - EMPLOYEES: NO EXPECTATION OF PRIVACY Number 0311 CHAIRMAN ROKEBERG announced the committee's next order of business was "An Act relating to an employee's expectation of privacy in employer premises." HB 319 read: * Section 1. AS 23.10 is amended by adding a new section to article 7 to read: Sec. 23.10.450. No employee expectation of privacy in employment site. In the absence of a specific agreement to the contrary, an employee has no expectation of privacy with respect to premises and equipment supplied by the employer, and an employer may have reasonable access to premises and equipment supplied by the employer to the employee. In the absence of an agreement permitting the employee to limit the employer's access to premises and equipment, an employee shall permit the employer to have access to the employer's premises and equipment, including information stored on a computer or computer network supplied by the employer. Number 0321 JANET SEITZ, Legislative Assistant to Representative Norman Rokeberg, came forward to present HB 319. She stated the sponsor became interested in this area because of the case in Fairbanks involving the University of Alaska. She said HB 319 basically said an employee would have no expectation of privacy on an employer's premise or using an employer's equipment, absent a specific agreement. This was to encourage employers and employees to set out parameters for use of an employer's premises and equipment. Ms. Seitz noted the bill packet contained support letters from the Alaska State Chamber of Commerce and the Alaska Miners Association. The sponsor statement read: House Bill 319 addresses a contemporary issue. With the advent of modern technology and the use of same in office places, many employees are using employer's equipment to access the Internet and send e-mail messages. While some employers have policies in place that make the employer's policy on this use plain, many do not. House Bill 319 would make it clear that, absent an agreement to the contrary, an employee has no expectation of privacy on an employer's premises. My 1998 House District 11 survey posed the following question: Should state law allow an employer the right to regulate all employee use of employer facilities and equipment? (i.e., internet, computer games, etc.). An overwhelming majority (341) favored such a law while a minority (86) opposed. A lawsuit involving the University of Alaska at Fairbanks brought this matter to my attention. An employee should not have the ability to use an employer's equipment and then not expect the employer to be able to terminate that employee for improper use of such equipment. House Bill 319 does permit the employee and employer to negotiate an agreement regarding access to premises and equipment. It is a step towards protecting both the employer and the employee and helping each party understand the other party's rights in the areas of workplace privacy and use of premises and equipment. I would urge your support of this legislation. MS. SEITZ asked if the chairman wished her to address the amendments. Number 0356 CHAIRMAN ROKEBERG answered in the affirmative, noting the amendments were marked A.1, A.2 and A.3. He designated amendment A.1 as Amendment 1, indicating the amendments clarified some issues in the bill. Number 0376 REPRESENTATIVE COWDERY made a motion to adopt Amendment 1, labeled 0-LS1211\A.1, Cramer, dated 3/20/98, for purposes of discussion. Amendment 1 read: Page 1, line 5, following "specific": Insert "written" Page 1, line 8: Delete "an" Insert "a written" Number 0389 MS. SEITZ stated Amendment 1 added the language "written" to ensure those agreements are specific written agreements. Number 0400 REPRESENTATIVE HUDSON made a motion to adopt Amendment 1. There being no objections, Amendment 1 was adopted. Number 0409 REPRESENTATIVE COWDERY made a motion to adopt Amendment 2, labeled 0-LS1211\A.2, Cramer, dated 3/25/98. Amendment 2 read: Page 1, line 4, following "site.": Insert "(a)" Page 1, following line 11: Insert a new subsection to read: "(b) In this section, "employer" means a person who has one or more employees and includes the state, the University of Alaska, the Alaska Railroad, and political subdivisions and public corporations of the state." MS. SEITZ stated Amendment 2 inserted a definition of "employer" so there would be no question in that section as to what an employer was. CHAIRMAN ROKEBERG confirmed that for clarity it meant private as well as public entities. MS. SEITZ answered in the affirmative. Number 0434 CHAIRMAN ROKEBERG asked if there were any objections to Amendment 2. There being none, Amendment 2 was adopted. Number 0438 REPRESENTATIVE COWDERY made a motion to adopt Amendment 3, labeled 0-LS1211\A.3, Cramer, dated 3/25/98. Amendment 3 read: Page 1, line 6: Delete "premises and" Insert "business premises and business" Page 1, line 7: Delete "premises and" Insert "business premises and business" Page 1, line 9: Delete "premises and" Insert "business premises and business" Page 1, line 10, following employer's": Insert "business" MS. SEITZ stated Amendment 3 added "business", making it clear the premises were to be the business premises, and the business equipment of the employer. She said there were some employers who provided residential lodging for their employees, such as construction and logging camps, and the ferry system. She indicated the amendment was intended to make sure those residential areas were not covered by the legislation. Number 0464 CHAIRMAN ROKEBERG asked if there were any objections to Amendment 3. There being none, Amendment 3 was adopted. Number 0478 REPRESENTATIVE RYAN indicated this bill represented no guarantee of privacy but negotiations would be allowed to be made. He asked if this would become subject to a collective bargaining negotiation as condition of employment. Number 0496 MS. SEITZ replied the state had an agreement for its employees to sign, noting it was in the bill packet [State Policy Regarding Personal Use of State Office Technologies, revised October 9, 1996]. She said perhaps Mr. McMullen from the Division of Personnel could answer the collective bargaining aspect of it better than she could. CHAIRMAN ROKEBERG commented he certainly could not and the committee would wait for that, if Representative Ryan did not mind. Number 0509 REPRESENTATIVE COWDERY gave the example of an employee who owned his own personal computer and asked if this addressed that situation. Number 0522 MS. SEITZ replied that she was not an attorney, but said they had inserted the word "business" in front of "premises and equipment", to read "employer's business premises and equipment". Ms. Seitz said she did not know, indicating it might be different relating to Representative Cowdery's own computer and Mr. McMullen or Ms. Redman might be able to expound on that since they dealt more with personnel matters. CHAIRMAN ROKEBERG asked if they were talking about a privately- owned computer in a business premises. Number 0548 REPRESENTATIVE COWDERY answered in the affirmative, noting he had his own computer in his office as well as state-owned computers, and he indicated he hope only he would have access to his personally-owned computer. CHAIRMAN ROKEBERG noted that was business equipment and on the premises. Number 0561 MS. SEITZ said Ms. Redman was indicating it would not cover a personally owned computer. CHAIRMAN ROKEBERG commented that would be his reading of it. REPRESENTATIVE COWDERY said he hoped so. Number 0577 REPRESENTATIVE KUBINA said that brought up a point, noting he was not sure who their employer would be. He commented they were state employees in a way and he asked if this gave somebody in the state, Legislative Council, the right to look on their personal computers as legislators. REPRESENTATIVE COWDERY said he hoped not. REPRESENTATIVE RYAN expressed his displeasure at that thought. Number 0594 REPRESENTATIVE COWDERY said he wanted that cleared up and that was why he spoke of that. SHIRLEY ARMSTRONG, Legislative Assistant to Representative Norman Rokeberg, directed the chairman's attention to the language, "business premises and equipment supplied by the employer". She indicated that did not include personally-owned computers. REPRESENTATIVE HUDSON asked, "What if it's connected at ... (indisc.) expense?" Number 0620 CHAIRMAN ROKEBERG commented, "Inasmuch as that we're a separate branch of government we ... can develop our own policy, but without an express contract to the contrary, there would be -- but who employs us is the issue, right?" REPRESENTATIVE KUBINA agreed it was a good question. Number 0636 REPRESENTATIVE RYAN commented they had received a medical package the previous year he had not been asked if he wanted, noting the decision had been made for him. He said there were certain policies on computers and service and whether someone had a personal one and so forth, noting these policies had been made without any consultation. Representative Ryan stated he had asked "leg (indisc.)" to give him an opinion on that. He said, "So there are a lot of people around here who like to take it upon themselves to make a lot of decisions that affect everybody else, and (indisc.) talk about that in caucus, (indisc.) special orders (indisc.) day, but I think you should be advised that - that possibility is there. Power abhors a vacuum." Number 0667 REPRESENTATIVE COWDERY indicated he was in favor of the legislation, referring to letters in the bill packet about past abuse, if there was the assurance that their personally-owned equipment was not subject to this. He indicated he had known of people using municipally-owned equipment for their personal business when he worked for the Municipality of Anchorage. Number 0700 WENDY REDMAN, Vice President for University Relations, University of Alaska, came forward to testify. She said, given the conversation she had just heard, her testimony would probably would not be viewed as particularly helpful. She stated the Tuttle case which had precipitated this action was the case at the University of Alaska [Fairbanks] where pornographic information was found for an employee. She noted the material was held on a "Zip" drive which was the employee's own piece of equipment in the workplace [Note: a Zip drive is a computer memory drive made by Iomega Corporation which stores information on removable Zip disks]. Ms. Redman said, therefore, in order to make the legislation effective in that instance, it would have to include language which said "property and information located on or within the business premises" to cover personal equipment people might have in the workplace. REPRESENTATIVE KUBINA commented, "A lot stronger." MS. REDMAN agreed. Number 0753 CHAIRMAN ROKEBERG stated that was Representative Kubina's analysis of a stronger language than the bill maintained. Number 0759 MS. REDMAN said stronger in some aspects, noting she would certainly recommend that there be language in there, and she said she thought "reasonable" probably did not go far enough. She said the university's suggested there be a statement that any access be for "good faith managerial purpose", that it be more specific than just "reasonable". According to the university's attorney, "good faith managerial purpose" was a phrase with some legal meaning and it excluded property of an employee which was obviously of a personal nature. She indicated this would include purses, lunch boxes or anything people brought into the office and took home in the evening. Ms. Redman noted, however, if employees chose to bring their own equipment into the workplace - computers, filing cabinets, Zip drives, whatever - it would be implied that if the employees were using this equipment in the workplace, then these employers should have the same access to this equipment that they have to equipment provided by the employer to the employee. She noted this would be the university's contention. Number 0832 MS. REDMAN said the university was clearly not interested in doing, nor had any history of doing, unreasonable searches of people's computers, offices or anything else at the university. However, she said the university did make it clear to its employees, as she thought the state did, that no one had a right to believe anything they were doing in the workplace was private. She said everything that went on that computer was subject to access by the supervisor. Ms. Redman indicated the university did not expect its employees to be using university time, computers, or equipment for personal business, or for any kind of communication of such a nature that it couldn't be viewed by anyone else. She added the university made that very clear to its employees. Number 0883 REPRESENTATIVE COWDERY indicated he thought the bill language, "an employer may have reasonable access to business premises and equipment supplied by the employer to the employee", would not apply to his own computer because it was not equipment supplied by his employer. He asked if he was correct, noting he could understand something like a Zip drive used in a state-owned computer, but was concerned about something like his own computer. Number 0913 MS. REDMAN replied she thought the way the bill was currently written that Representative Cowdery was correct. It would not cover his personal equipment. She indicated the university was suggesting a way to strengthen the bill and a way to get at the issue the university was faced with in the Tuttle case. She said the university would ask the bill be strengthened, as she said Representative Kubina had mentioned, to include all property and information located on or within. She indicated this would then include an employee's personal computer brought into the workplace. REPRESENTATIVE COWDERY said he could not support that. MS. REDMAN indicated she had somewhat guessed that. REPRESENTATIVE COWDERY indicated he thought they could make the bill clear that something brought in and used in a state-owned computer was included but a legislator's personal computer brought into his or her office could be excluded. Number 0958 REPRESENTATIVE KUBINA asked Ms. Redman to brief him on the lawsuit, noting he thought he understood what happened but asked what the courts had said. Number 0965 MS. REDMAN replied the case was currently on appeal. An employee had brought in a personal Zip drive and was pulling pornographic information, which was illegal because it was child pornography, off the Internet and storing the information on the employee's Zip disk, using the employee's Zip drive and this information came to the supervisor's attention. Ms. Redman said the person was terminated and sued. She noted the first court had been supportive of the university's position. She stated they knew of only one other similar case in the country. Ms. Redman said the issue then revolved around whether the university had a right to search the employee's personal property, the Zip disk, on which the information was found. She indicated it was the university's contention it did have that right because it was in the workplace, even though it belonged to the employee. Number 1025 REPRESENTATIVE KUBINA asked if the university had a policy at the time. MS. REDMAN answered in the negative and stated, "We (indisc.) not have a policy." REPRESENTATIVE KUBINA asked if the state had a policy now. MS. REDMAN answered in the negative. REPRESENTATIVE KUBINA asked if the university had a policy now. CHAIRMAN ROKEBERG said the state did have a written contract. MS. REDMAN indicated she believed Mr. McMullen could probably speak to that. REPRESENTATIVE KUBINA asked about the university now. MS. REDMAN replied it did not have one yet either. Number 1047 REPRESENTATIVE RYAN indicated universities, especially the University of Alaska, were known as bastions of academic freedom and he found this intriguing. He stated, "Perhaps it would be good to ratchet this down and name the university of Alaska could do this, could go after anything the employee brought in and to make that particular portion and the rest of us -- one thing I want to bring to your attention, if you purchase your private computer with your office funds that you have the LAA [Legislative Affairs Agency] go buy rather than taking the cash money up front, you're subject to the ethics law, and the ethics committee and everybody and his brother can come down [and] find out what's on your computer. I mean it's a wonderful situation of big brother around this joint, and it's getting worse every time you turn around. We have a privacy statute, (indisc.) constitutional provision which hasn't been tested very much. I think perhaps it's time that we start (indisc.) let the courts decide just what this really means." Representative Ryan noted he had his personally-owned computer in his office, stating, "If you come in there and try to read my e- mail or look at my history list to where I've been on the Internet, and I catch you, I guarantee you you're going to require medical attention." CHAIRMAN ROKEBERG said that was not what the bill did. REPRESENTATIVE RYAN said he knew and was just informing them of his personal office policy. CHAIRMAN ROKEBERG asked Ms. Redman how Mr. Tuttle had downloaded the information onto the Zip drive, questioning if he had used university equipment and an Internet service provider (ISP) supplied by the university. MS. REDMAN said that was correct. Number 1157 CHAIRMAN ROKEBERG indicated he thought that was the foundation of the university's case, commenting he was not so sure that the bill sponsor or the committee was willing to expand the scope to other privately-owned equipment. The chairman indicated he was going to entertain a conceptual amendment to clarify and make absolutely clear that privately-owned equipment was exempt before the bill moved out of the committee. Chairman Rokeberg also stated for the record that he had a legal opinion from legislative counsel regarding the constitutionality of the bill, particularly with the amendments the committee had made. He said the legal opinion indicated the term "reasonableness" needed to be included because of case law in Alaska citing Jones vs Jennings (ph) in 1990, an Alaska Supreme Court case. Number 1203 MS. REDMAN said she had one further question or clarification. She said she thought, and in discussing the legislation with the university's attorneys, that the second sentence of the bill, which began, as amended, "in the absence of a written agreement", seemed unclear and unnecessary. She said they were not clear what that added to the legislation and thought it actually seemed to make it a little more confusing. Ms. Redman noted, "If you're saying if the intent of the bill is that - that the employer ... has right to reasonable access to information on the business premise, then the second sentence seems to say now that the employee must actually permit the employer to come and look, ... which is -- maybe you intended it that way, but it does seem to negate the right to have access to information, so I'm a little unclear as to what the intent is." Number 1263 CHAIRMAN ROKEBERG replied the intent was to make sure they had the ability to go into the computer memory itself, asking, "But you want to wordsmith that?" MS. REDMAN said she thought the terms "business premises" and "business equipment" actually included that last clause; the phrase "information stored on a computer or computer network" was no longer necessary with the amendment just adopted regarding "business premises" and "business equipment". Number 1288 REPRESENTATIVE KUBINA indicated he thought the way it was currently written just made it clear the ability was there for employers to negotiate policies different from what the legislation stated, whether through collective bargaining agreements, individually, or anything else. He stated, "It's saying if there is no written agreement, that that also then implies, 'You may have a written agreement that says something different than this law.'" Number 1330 MS. REDMAN indicated she would leave it to the committee, stating, "But it seems ... to be clear that ... an employee, I mean I certainly wouldn't give an employer an agreement to -- I mean I'm not gonna sign anything [that] says you can come search anything I have, nor do I think any employee would. So - so you then end up in the situation where because you say now that an employee must - shall permit the employer to have access ..." REPRESENTATIVE KUBINA commented he did not think that was what it said. MS. REDMAN stated, "'In the absence of a written agreement permitting the employee to limit the employer's access,' the employee must permit it to be ... searched." Number 1372 REPRESENTATIVE KUBINA indicated he agreed with that reading, stating, "So in a collective bargaining agreement ... so in some kind of an agreement, the ... employer may agree to limit his own access because he's agreed to that with the employee." CHAIRMAN ROKEBERG stated that was correct. Number 1387 MS. REDMAN said, "So ... your intention is, ... these are collective bargaining agreements as opposed to personal or contractual agreements between an employee and an individual." CHAIRMAN ROKEBERG answered, "No, I think it would apply either way. That could be a term of it or ... in the absence. Let's see, (indisc.) in the absence of a written agreement." Number 1409 REPRESENTATIVE KUBINA added, "My point, you may hire someone at the university and ... the guy's going to have ... equipment. He wants to make it clear, 'Hey, I'm coming here to work on this research project and I want to make sure that this stuff is all proprietary stuff and you don't have any right to stick your nose into it,' and so you would sign an agreement ... saying so, and this law would not (indisc.) then prohibit that from happening." Number 1441 REPRESENTATIVE RYAN asked Chairman Rokeberg, as the sponsor, if his intention was that this would be a default provision. CHAIRMAN ROKEBERG indicated he did not understand the question. REPRESENTATIVE RYAN clarified, "In the absence of anything ..." CHAIRMAN ROKEBERG stated, "Well (indisc.), that's right ...." REPRESENTATIVE RYAN stated that was a default. CHAIRMAN ROKEBERG agreed. REPRESENTATIVE RYAN added, "But the door is open, except as ..." CHAIRMAN ROKEBERG indicated an affirmative. REPRESENTATIVE RYAN stated, "Good, so it's understood for the record." Number 1461 REPRESENTATIVE COWDERY asked if this would allow an employer to tap or monitor the phones of employees. CHAIRMAN ROKEBERG answered in the negative. MS. REDMAN answered in the negative. CHAIRMAN ROKEBERG commented if it did, he would withdraw it "in a heartbeat." Number 1479 REPRESENTATIVE HUDSON asked if it would allow an employer to use monitor cameras, for example. CHAIRMAN ROKEBERG answered in the negative and then indicated he was not sure. REPRESENTATIVE HUDSON added, "'Cause it's giving 'em access to the information, it doesn't say limitations." REPRESENTATIVE COWDERY added, "Banks and ..." CHAIRMAN ROKEBERG said he thought it would. MS. REDMAN stated she believed employers currently had those rights. CHAIRMAN ROKEBERG agreed, adding for security purposes or anything else. MS. REDMAN said, "For reasonable managerial purposes." Number 1530 SYLVIA SULLIVAN, President, Alaskans for a Just Society, testified next via teleconference from Valdez. Ms. Sullivan stated the bill had apparently been reworked with three amendments since she faxed her letter to the committee that afternoon. She commented one of the members, she was unsure which one, had spoken about the constitutionality of the bill which she said she had indicated in her letter. She stated, "This may seem like a simple bill to correct a situation for the university but it certainly has huge overriding problems with other industries as I had indicated -- with lodges, camps and that sort of thing, where ... the employer is requiring the employee to have the computer front desk activity files and stuff in their living quarters. Until this bill is very limited for the purposes that you want, we will have to oppose the bill. I also didn't receive from you, Representative Rokeberg, the drafting attorney's memorandum. Do you have one on this bill?" Number 1633 CHAIRMAN ROKEBERG answered in the negative and stated that was not an issue currently before the committee. He asked if that concluded her testimony. MS. SULLIVAN indicated she had very recently received the sponsor statement, noting the intent was what she thought but she thought the bill did not say that. She commented that was why she felt it was very important that the drafting attorney, "not any of the civilians, Janet Seitz or this other lady," be drafting the legislation for the sponsor without an attorney. Number 1671 CHAIRMAN ROKEBERG thanked Ms. Sullivan and assured her the legislation had been drafted by counsel. He noted to Mr. McMullen there had been a question about collective bargaining, and indicated other comments were welcome. Number 1695 MIKE McMULLEN, Personnel Manager, Division of Personnel, Department of Administration, came forward to testify. Mr. McMullen stated he thought he had been invited to answer questions. He said he understood Ms. Redman's point on line 9 to be that the last "permit" seemed to imply the employee still had some option of permitting or not permitting the employer to have access at that juncture. Mr. McMullen noted the committee might consider language like, "employee may not prohibit or interfere with an employer's access to the premises, equipment, et cetera". He said he thought the point was that absent an agreement, the employee had no choice; it was not a question of the employee permitting or not permitting, and the last "permit" in that line raised the question. Mr. McMullen indicated he thought he was there to answer the specific question of what does the state do and what has the state been doing under the telecommunications policy since it was adopted. Mr. McMullen noted the labor relations section for the executive branch was in the Division of Personnel, stating, "We see issues either at a ... consultation level when departments have an issue that they're not quite sure how to deal with it, we also see all the grievances that ... result from ... disciplinary actions taken." He noted that six cases of people misusing computer technologies had risen to the level of their attention since the executive branch policy went into effect. In one case the employee had resigned when confronted with the information. Three employees had been terminated, one received a suspension and one was reprimanded. Number 1838 MR. McMULLEN continued that in terms of discovering what might be going on out there, the Information Technology Group (ITG), formerly the Division of Information Services, monitored the state's World Wide Web traffic just in terms of managing the resource. He stated ITG noted when large documents were going across the system. He commented there was a standard about not sending large documents during daytime hours even as e-mail because it bogged the system down for everybody else. Therefore, he noted when ITG saw large documents going through it periodically checked those sorts of things for web site connections to inappropriate sites and passed that information along to the departments to follow up on. Mr. McMullen commented that potential violations were being identified and brought to the attention of management in the general maintenance and managing of the system. Number 1902 CHAIRMAN ROKEBERG noted he had not caught who was monitoring. MR. MCMULLEN replied it was ITG, the Division of Information Services. CHAIRMAN ROKEBERG confirmed it was an in-house ability. MR. MCMULLEN answered in the affirmative. He said ITG was the "computer folks" who ran the telecommunications system, data processing. CHAIRMAN ROKEBERG asked if they could snoop and see what was on the World Wide Web traffic and the e-mail traffic. Number 1929 MR. MCMULLEN indicated large documents going through came up in ITG's tracking and ITG would check the receiver and sender. He noted it basically went down to which account was producing the volume and also the site which may have been involved. Number 1953 REPRESENTATIVE KUBINA asked for confirmation that the Department of Administration was blocking out certain web sites so that people could not reach those sites. MR. MCMULLEN said he had not heard that the department had, but it would not surprise him if the department was doing that. Number 1967 REPRESENTATIVE KUBINA said he believed the department was, stating he thought they had been notified the department was identifying web sites which should be blocked. He commented that seemed like a never ending job as the World Wide Web continued to change, and he could not believe they were spending money doing that, but this was his understanding. He noted this was in the Department of Administration, asking if that was correct. MR. MCMULLEN confirmed it was in the Department of Administration. Number 1997 CHAIRMAN ROKEBERG asked if wasn't possible to buy blocking software, without having a lot of personnel time involved. Number 2007 REPRESENTATIVE RYAN indicated he wanted to know what pay range those purveyors of the public moral were employed at. MR. MCMULLEN confirmed Representative Ryan meant the personnel monitoring the web traffic. He stated they were probably in the state's 16 to 19 range. REPRESENTATIVE RYAN asked Mr. McMullen to show him where these people were employed in the BRU [Budget Review Unit] component, indicating he was not pleased with money being spent on "people sticking their nose in other people's business." Number 2060 REPRESENTATIVE HUDSON commented he was sure that wasn't the only thing these people were doing and asked Mr. McMullen to let them know, possibly in the same process, what else these people were involved with. Number 2072 MR. MCMULLEN stated the monitoring was the full traffic monitoring for the state's system, and any large volume traffic was being examined, whether illegal use of pornography after hours or someone sending large documents during the day, bogging the system down for everyone else. He indicated he would find the BRU. Number 2100 CHAIRMAN ROKEBERG said there had been an earlier question about any relationship between HB 319 and collective bargaining agreements. He asked if the legislation would impact any of that. Number 2113 MR. MCMULLEN replied not directly, stating the language allowed for specific agreements, which he was sure could be either an individual or a collective agreement. He noted the committee members had copies of the executive branch's policy each employee was being required to sign on hire. Mr. McMullen said violation of that policy subjected an employee to discipline in the same manner as violation of any other policy. He indicated the employee was subject to investigation, confrontation; the employee had to explain his or her side if covered by a grievance process including collective bargaining processes and the employees had a right to (indisc.) discipline which resulted from that, and so on. He stated this was just another sort of behavior the employer dealt with in the workplace. Number 2185 REPRESENTATIVE KUBINA asked Mr. McMullen if the bill did him any good. MR. MCMULLEN replied he had not seen Amendment 2 which he had been curious about, noting the bill as originally written did not cover the state but Amendment 2 might have taken care of that. CHAIRMAN ROKEBERG confirmed the committee had done that with Amendment 2. Number 2206 REPRESENTATIVE KUBINA asked, with the current policy, if the legislation really did anything. Number 2216 MR. MCMULLEN said he would defer that to the Department of Law, stating his impression was that for the state as a public employer, it probably already had almost everything the bill would give. He said it all had to do with that expectation of privacy, commenting, "As public employees in public buildings using public facilities there's not much that an employee should ever expect to be private." He indicated things like purses and purchases made during lunch hour to be taken home after work might be expected to be private, but not much else. Number 2264 REPRESENTATIVE KUBINA indicated to the chairman he would like to hear the Department of Law's or Legislative Legal and Research Services's response to that question, stating, "I mean it may mean how that is different -- what is this really doing compared to what they have the right to do? And maybe the question may be also ... how 'bout with private employers, ... is this law actually doing something other than what they already have the right to do?" CHAIRMAN ROKEBERG said the bill's intention was ensure a statutory foundation for companies to do this. Number 2313 REPRESENTATIVE KUBINA indicated he asked this because it was his impression from the university that HB 319 did nothing for the situation the university had been in which did cause a lawsuit. Number 2329 CHAIRMAN ROKEBERG replied that was because of the ownership of part of the equipment used in the "chain," but noted that situation was still in question. He stated, "Point of fact, there's a huge employment/employee (indisc.) number of different things, this one element of it that has to do with ... e-mail messages, ... computer games, all kinds of other activities; and frankly there's certain protective rights under, as I understand it, under federal law under even the Taft-Harkley (ph) Act as far as employee transmissions of messages, that unless there's an agreements to the contrary. So, this allows private companies ... and other -- even governmental subdivisions, to enter into agreements that specifically spell out those responsibilities. And this is the ... reoccurring theme of all employment relations law is to have a written policy so there is a complete and clear understanding between the employee and employer. The state of Alaska has been proactive in that and does have that particular contract and policy set forward. ... I would guess the majority of private businesses don't and they should. ... This is intended to encourage private people to do that and to implement those policies. In - in the absence of a policy they still have the right to avoid the litigation that ... could be caused by (indisc.). That's the intention of the bill ...." Chairman Rokeberg stated he would not take a recommendation from Representative Kubina to hold the legislation hostilely if he had any serious questions about this. Number 2478 REPRESENTATIVE KUBINA indicated he thought it could be done in the House Judiciary Standing Committee. [TESTIMONY INTERRUPTED BY TAPE CHANGE] TAPE 98-38, SIDE A Number 0001 REPRESENTATIVE RYAN "... (indisc.) this bill, and it basically says employer does not mean the Legislative Council for members of the state legislature. I want that clear so that no one gets theirselves thinking that they can start setting more policies and dictating what we're gonna do in our offices." Number 0047 CHAIRMAN ROKEBERG asked if there were any further questions for Mr. McMullen. There being none, he stated, "So Representative Ryan, going back to your conceptual amendment, you want to exempt the legislature from this law." Number 0053 REPRESENTATIVE RYAN said, "No, it says 'employer does not mean the Legislative Council or members of the state legislature'. I want that just clear that - that we don't work for them. I personally consider I work for 14,600 or now 15,000 people and I don't want someone coming along from 'leg' council putting out new policies and telling me all of a sudden that (indisc.) not gonna do something, 'cause I try to avoid a fight if I have to ..." CHAIRMAN ROKEBERG indicated he also felt his constituents were his employers. He asked, "If there was a petition from 14,000 of your constituents would you let 'em?" REPRESENTATIVE RYAN replied not if he paid for it out of his own pocket. Number 0109 REPRESENTATIVE COWDERY indicated he had asked for a private phone line into the Capitol Building when he brought his private computer to Juneau for the legislative session but they would not allow him a private line. In lieu of that he was told he could use their line in there and thought he might be using the line for the facsimile machine. He said he guessed the cellular phone option did exist but would be kind of expensive. Representative Cowdery stated he just thought if he owned his own equipment the mere fact he used the state's line did not allow the state to go into his equipment. He said he wanted to make that sure. He indicated he understood there were real problems in the area addressed and commented he had had this problem in business with an employee. Number 0188 CHAIRMAN ROKEBERG stated Ms. La Bolle had just arrived and she wanted to testify briefly on the bill. Number 0198 PAM LA BOLLE, President, Alaska State Chamber of Commerce, came forward to testify. She stated she was speaking in support of HB 319, commenting, "It is our feeling that if we own the equipment or the premises and have any of liability for the use ... of the equipment or the facility, then we should have access to that." She said she thought the amendment on written agreements was very good and mentioned written agreements in response to Representative Cowdery's concerns, indicating a written agreement might address legislators' concerns. Number 0303 REPRESENTATIVE COWDERY stated he had been referring his own personal equipment, indicating it had not been supplied in any way by the state. He mentioned bringing in a portable computer, for example, indicating he felt this was private and hoped this would not be unacceptable. Number 0336 MS. LA BOLLE said, in her interpretation, the legislation did not address equipment owned by the employee or someone other than the employer. She said she would expect to have access to computer files and such that were done on the Alaska State Chamber of Commerce's equipment on the Alaska State Chamber of Commerce's premises. Number 0375 CHAIRMAN ROKEBERG asked if there was anyone else who wished to testify on HB 319. There being no one, he stated the public hearing was concluded. Number 0389 REPRESENTATIVE COWDERY stated he would like to support HB 319 but hold the legislation over so that he could examine it. Number 0404 CHAIRMAN ROKEBERG suggested the committee could make a conceptual amendment excluding privately-owned equipment. He indicated there was also a draft of another conceptual amendment relating to the legislature. Chairman Rokeberg indicated the bill could then be moved and worked on in the House Judiciary Standing Committee, noting he would appreciate any more input. He asked for a conceptual amendment from the committee excluding privately-owned personal property. Number 0440 SHIRLEY ARMSTRONG, Legislative Assistant to Representative Norman Rokeberg, stated, "The bill does not, as written, include personal equipment because it says your personal equipment is not supplied by an employer; and then what I just gave Representative Rokeberg with regard to (indisc.) being an employee of the Legislative Affairs [Legislative Affairs Agency], you could say in the definition that ... for purposes of this section a legislator is not considered an employee of a political subdivision, because you really aren't." CHAIRMAN ROKEBERG stated,"Which is in the new definition [Amendment 2] and - and to Representative Cowdery's there, and voiced by a number of us, that's on line 6 ... 'supplied by the employer' ...." REPRESENTATIVE COWDERY indicated he was aware of the language. Number 0512 REPRESENTATIVE HUDSON made a motion to adopt the conceptual amendments, and asked to simply have that explanation for the record transmitted to the next committee of referral. Confirming the legislative exemption was to be conceptually added to the definition, he noted he thought that was all they needed. CHAIRMAN ROKEBERG asked about the personal equipment. MS. ARMSTRONG noted they could check to make sure that it was not covered. REPRESENTATIVE HUDSON commented he thought it was covered. CHAIRMAN ROKEBERG agreed with Representative Hudson, but asked the will of the committee. REPRESENTATIVE HUDSON indicated he thought the committee should move the legislation to the next committee with the current language and the addition of the definition of legislators. Number 0569 REPRESENTATIVE COWDERY commented he would put a "no rec" on it if the chairman wished to move the legislation. CHAIRMAN ROKEBERG indicated that was okay with him. He asked Representative Kubina if he had a problem with that. Number 0577 REPRESENTATIVE RYAN asked if the amendment exempting the legislature was going to pass in this committee. Number 0590 CHAIRMAN ROKEBERG answered in the affirmative. He said the motion by Representative Hudson before the committee was to adopt a conceptual amendment, stating, "To the effect that 'for purposes of this section a legislator is not considered an employee of a political subdivision' or words to that effect." There being no objections, the conceptual amendment was adopted. CHAIRMAN ROKEBERG indicated the bill would be examined and legislative counsel consulted to ensure that it did not apply to personal equipment. He noted this would be taken up in the next committee. Number 0633 REPRESENTATIVE COWDERY made a motion to move HB 319 as amended, with the attached zero fiscal note, to the next committee of referral. There being no objections, CSHB 319(L&C) was moved out of the House Labor and Commerce Standing Committee.
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