Legislature(2011 - 2012)CAPITOL 106

04/03/2012 08:00 AM House STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 351 POLICE OFFICER PROTECTIONS/CERTIFICATION TELECONFERENCED
Heard & Held
+ HB 345 WAIVE CDL SKILL TEST FOR CERTAIN VETERANS TELECONFERENCED
Moved Out of Committee
+ SB 53 COMMISSION ON THE STATUS OF WOMEN TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 351-POLICE OFFICER PROTECTIONS/CERTIFICATION                                                                     
                                                                                                                                
8:04:02 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN announced  that the first order of  business was HOUSE                                                               
BILL  NO.  351,  "An  Act  establishing  procedures  relating  to                                                               
issuance, suspension,  or revocation  of certification  of police                                                               
officers by  the police standards  council; making  certain court                                                               
service  officers   subject  to   certification  by   the  police                                                               
standards council;  making confidential certain  information that                                                               
personally identifies  a police  officer; relating  to requesting                                                               
or requiring  police officers  to submit  to lie  detector tests;                                                               
repealing a  provision exempting  certain police officers  from a                                                               
prohibition against requiring certain  employees to submit to lie                                                               
detector tests; and providing for an effective date."                                                                           
                                                                                                                                
8:05:03 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MIKE  HAWKER, Alaska State  Legislature, presented                                                               
HB 351 as  sponsor.  He stated that the  proposed legislation was                                                               
introduced  at  the  request  of   the  Public  Safety  Employees                                                               
Association  (PSEA) and  would ensure  that  police officers  are                                                               
afforded  protection of  their civil  liberties  when faced  with                                                               
unproven   allegations   or   threats  related   to   their   job                                                               
performance.    He  directed  attention   to  a  matrix  [in  the                                                               
committee  packet], which  shows  four general  areas within  the                                                               
legislation:   Licensure  Impacts for  Misconduct; Definition  of                                                               
Police  Officer;  Administration  of   Lie  Detector  Tests;  and                                                               
Confidentiality  of Personal  Information.   Currently, he  said,                                                               
revocation  and  refusal  to  issue  a  permit  is  left  to  the                                                               
discretion of the Alaska Police Standards Commission.                                                                           
                                                                                                                                
REPRESENTATIVE  HAWKER  said under  HB  351  suspension would  be                                                               
allowed  without a  hearing; revocation  and refusal  to issue  a                                                               
permit  would be  allowed after  a  hearing and  decision if  the                                                               
allegations  were proven  by clear  and convincing  evidence; and                                                               
suspension, revocation,  or refusal to issue  a certificate based                                                               
on a disciplinary action that  has been reversed or removed based                                                               
on  an official  proceeding outlined  by a  collective bargaining                                                               
agreement, personnel  rules, or the Administrative  Procedure Act                                                               
would be prohibited.                                                                                                            
                                                                                                                                
REPRESENTATIVE  HAWKER  said  court services  officers  would  be                                                               
added  to  the  definition  of police  officer.    Regarding  the                                                               
administration   of  lie   detector  tests,   he  mentioned   [AS                                                               
23.10.037],    which   currently    prohibits   employers    from                                                               
administering   lie  detector   tests   to   employees  and   job                                                               
applicants.  He  indicated that HB 351 would repeal  a section of                                                               
law that  exempts police officers  from the  current prohibition.                                                               
He indicated  that [job applicants]  are not supposed to  be part                                                               
of that exemption, and he said  there is an amendment prepared to                                                               
address that.  He stated  that under HB 351, personal information                                                               
would   remain  confidential   unless  the   officer  voluntarily                                                               
authorizes its release in writing.                                                                                              
                                                                                                                                
8:13:37 AM                                                                                                                    
                                                                                                                                
DAVE   SEXTON,  Executive   Director,  Alaska   Police  Standards                                                               
Council, Department  of Public Safety  (DPS), said under  HB 351,                                                               
the council would  have to follow along with decisions  made at a                                                               
hearing, for example.   Currently, he said,  although the council                                                               
takes many  sources under advisement, it  is totally independent.                                                               
He relayed that  when an officer in an agency  is terminated, the                                                               
hiring agency is required to  report that termination, as well as                                                               
report  whether the  officer resigned  under investigation  or in                                                               
lieu  of   investigation,  and  whether  the   agency  recommends                                                               
decertification.   He  said the  council  takes that  information                                                               
under advisement.   He said there  are a number of  ways that the                                                               
council can  start an investigation  on its own, for  example, in                                                               
response to  reading an article  in the newspaper or  receiving a                                                               
tip from  a citizen;  however, most of  the time  the information                                                               
received is from the hiring agency.                                                                                             
                                                                                                                                
MR. SEXTON emphasized  that revocation is rare.   He relayed that                                                               
at any  particular time there  are 3,000 officers in  Alaska, and                                                               
in  the  last  five  years  the  council  has  revoked  only  six                                                               
certificates, and  those were for  serious criminal matters.   He                                                               
said his  staff does  the primary  investigation, and  many times                                                               
decides at that level that there is  no reason to revoke.  If the                                                               
matter goes to  council, the council thoroughly  vets the matter.                                                               
He  reemphasized  the  need  for  the  council  to  maintain  its                                                               
independence.  He noted there has  been one instance in which the                                                               
hearing officer ruled  to give the officer his job  back, but the                                                               
council revoked  the certificate anyway.   He indicated  that the                                                               
hearing  officer  had ruled  on  a  procedural issue,  while  the                                                               
council  considered that  the behavior  of the  officer had  been                                                               
egregious and unprofessional in nature.                                                                                         
                                                                                                                                
8:17:29 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  directed attention to Section  1 of the                                                               
proposed  bill,  which would  amend  AS  18.65.240(c).   He  said                                                               
currently there is  no requirement for a notice and  a hearing in                                                               
statute.   He asked if Mr.  Sexton has received or  requested any                                                               
legal opinions regarding the constitutionality of the statute.                                                                  
                                                                                                                                
8:18:54 AM                                                                                                                    
                                                                                                                                
MR. SEXTON deferred  to the Department of Law, but  said that the                                                               
council gives notice.                                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG asked Mr. Sexton  if Section 1 of HB 351                                                               
would   bring  the   statute  into   conformance  with   existing                                                               
regulations.                                                                                                                    
                                                                                                                                
MR. SEXTON reiterated that currently the council gives notice.                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG  referenced page 1, lines  12, and asked                                                               
if current  regulations allow  the accused  to request  a hearing                                                               
for a suspension as well as for a revocation.                                                                                   
                                                                                                                                
MR. SEXTON answered that currently  the council does not have the                                                               
authority  to suspend;  language  in Section  1  would give  that                                                               
authority.   He  stated  that the  council  supports having  that                                                               
capability.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  Mr. Sexton  if he  would support                                                               
allowing  the  accused officer  to  request  a hearing  before  a                                                               
suspension.                                                                                                                     
                                                                                                                                
MR. SEXTON  replied that the  council has not yet  discussed that                                                               
matter.                                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  would explore that  issue when                                                               
the bill is heard by committees of referral.                                                                                    
                                                                                                                                
8:21:28 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN directed  attention to  the fiscal  note                                                               
prepared  by  David  Sexton, Executive  Director,  Alaska  Police                                                               
Standards Council [included in the committee packet].                                                                           
                                                                                                                                
MR.  SEXTON clarified  that although  his name  is on  the fiscal                                                               
note, it was actually prepared by his staff.                                                                                    
                                                                                                                                
REPRESENTATIVE JOHANSEN observed  that it is a  zero fiscal note,                                                               
but  noted language  in the  analysis portion  states that  ["DPS                                                               
could potentially  be required  to pay  hundreds of  thousands of                                                               
dollars in back  wages to cover the period of  time from the date                                                               
of termination  until the  date of the  decision."]   He remarked                                                               
that it  is unusual  for HB  351 not  to have  a referral  to the                                                               
House Finance  Committee.  He  asked Mr.  Sexton to point  to the                                                               
section in HB 351 that refers to the possible cost to DPS.                                                                      
                                                                                                                                
MR.  SEXTON  answered   that  the  language  is   in  Section  4,                                                               
[paragraph  (7)], subparagraph  (D), on  page 3,  lines 5-7,  and                                                               
would add to the definition of police officer:                                                                                  
                                                                                                                                
                         (D) a person who is designated                                                                     
     under  AS  22.20.130  to  assist  the  commissioner  of                                                                
     public  safety in  the execution  of the  authority and                                                                
     duty vested by AS 22.20.100 - 22.20.140;                                                                               
                                                                                                                                
8:23:57 AM                                                                                                                    
                                                                                                                                
MR.  SEXTON  said the  reason  for  the  cost  is that  if  court                                                               
officers are brought  in under the definition  of police officer,                                                               
then they  would have to have  the same training.   He said under                                                               
HB 351,  there are 50-plus  court officers  who would have  to be                                                               
trained.   In response  to Representative  Johansen, he  said the                                                               
expense  would not  be incurred  by the  Alaska Police  Standards                                                               
Council, but would be incurred by the department.  He added:                                                                    
                                                                                                                                
     Part  of [the  Department of]  Public Safety  has since                                                                    
     started discussions with the  union.  Everybody's under                                                                    
     the  agreement  that we  can  bring  the court  service                                                                    
     officers in  without this change,  and this  change ...                                                                    
     was taken out  of the Senate version of the  bill.  So,                                                                    
     we're just  doing it administratively now,  bit by bit,                                                                    
     and that won't  have the fiscal impact.   So, ... we're                                                                    
     currently looking  at handling it  administratively and                                                                    
     not in this bill.                                                                                                          
                                                                                                                                
REPRESENTATIVE  JOHANSEN said  he  appreciates that  information,                                                               
but opined  that it is  irrelevant to the  committee's discussion                                                               
of the proposed bill.                                                                                                           
                                                                                                                                
8:25:58 AM                                                                                                                    
                                                                                                                                
MR. SEXTON,  in response to  Representative P.  Wilson, explained                                                               
the  reason the  court services  officers have  been added  is to                                                               
give  them the  ability to  serve warrants  and make  arrests; it                                                               
increases their abilities.                                                                                                      
                                                                                                                                
CHAIR LYNN opined that that is "quite a jump" in abilities.                                                                     
                                                                                                                                
MR.  SEXTON, in  response to  Chair  Lynn, said  a court  officer                                                               
could give a warrant in the court room.                                                                                         
                                                                                                                                
MR.  SEXTON,  in  response  to  Representative  P.  Wilson,  said                                                               
currently court  officers act as  bailiffs who maintain  order in                                                               
the courtroom and transport prisoners.   In response to a follow-                                                               
up  question, he  deferred to  the department  representatives to                                                               
speak to  how they envision  using court services  officers under                                                               
HB 351.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  P.   WILSON  surmised  that  if   court  services                                                               
officers are going  to be asked to  do a lot more,  then they are                                                               
going to  want an increase  in pay,  which would be  reflected in                                                               
the fiscal note.                                                                                                                
                                                                                                                                
MR. SEXTON said current discussions  with the union have elicited                                                               
an agreement that a pay raise would not happen.                                                                                 
                                                                                                                                
8:28:29 AM                                                                                                                    
                                                                                                                                
MR. SEXTON,  in response to  the chair,  said under HB  351 court                                                               
services  officers  would be,  in  theory,  fully trained  police                                                               
officers; however, he  said he cannot speak to how  DPS would use                                                               
them.  In  response to a follow-up question, he  said he does not                                                               
know  the  current pay  difference  between  police officers  and                                                               
court services officers.                                                                                                        
                                                                                                                                
8:29:12 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER asked  if the courts have  expressed a need                                                               
for  their  court  services  officers  to  have  an  increase  in                                                               
abilities.                                                                                                                      
                                                                                                                                
MR. SEXTON answered not that he is aware.                                                                                       
                                                                                                                                
8:29:35 AM                                                                                                                    
                                                                                                                                
MR.  SEXTON,   in  response  to   a  series  of   questions  from                                                               
Representative   Seaton,  confirmed   that   the  Alaska   Police                                                               
Standards  Council bases  its conclusions  on the  Administrative                                                               
Procedures  Act, which  requires preponderance  of evidence.   He                                                               
offered his  understanding that  under HB  351 the  council would                                                               
need to "follow decisions made  outside to hearings."  He relayed                                                               
that if the standard for  proving allegations is changed to clear                                                               
and convincing  evidence, then  the assumption  is that  a higher                                                               
burden of proof will  be required.  He said he  does not know how                                                               
that will  "shake out,"  but said it  would separate  the council                                                               
from  the  four dozen  boards  and  commissions that  follow  the                                                               
Administrative Procedures Act.                                                                                                  
                                                                                                                                
8:32:07 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN asked  who would  do the  extra work  in                                                               
reaching the higher  burden of proof if the  standard for proving                                                               
allegations is raised.                                                                                                          
                                                                                                                                
MR.  SEXTON suggested  that the  council may  already be  finding                                                               
clear and convincing evidence.   He said the council is comprised                                                               
of  13   members,  including  law  enforcement   and  corrections                                                               
administrators,  citizens at  large,  and union  members, all  of                                                               
whom take  their jobs seriously.   He reiterated that out  of 200                                                               
cases there have  been only six revocations.  He  stated that the                                                               
council takes  only serious  cases.   He said  there would  be no                                                               
more staff to  address finding clear and  convincing evidence, so                                                               
the burden would fall on existing staff.                                                                                        
                                                                                                                                
8:34:24 AM                                                                                                                    
                                                                                                                                
MR. SEXTON, in response to  Representative Gruenberg, offered his                                                               
understanding that clear and convincing  evidence must be used in                                                               
order to disbar  an attorney at law.  In  response to a follow-up                                                               
question, he  said he has not  heard of any challenges  as to the                                                               
constitutionality of requiring only  preponderance of evidence in                                                               
matters related to the council.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  stated his intent  to find out  more on                                                               
the matter.                                                                                                                     
                                                                                                                                
8:36:18 AM                                                                                                                    
                                                                                                                                
JOHN  SKIDMORE,   Division  Director,  Legal   Services  Section,                                                               
Criminal Division, Department of  Law (DOL), offered his personal                                                               
background.  He stated that in  the role of supervisor to special                                                               
prosecutions,  he was  responsible for  reviewing all  cases that                                                               
involved   officers  and   would  address   all  officer-involved                                                               
shootings.  He said he also  reviewed conflict cases.  He related                                                               
that in  his current position, he  acts as the legal  advisor for                                                               
the Alaska Police  Standards Council.  Regarding HB  351, he said                                                               
he would address the topic of  licensure impacts, as shown on the                                                               
aforementioned matrix.                                                                                                          
                                                                                                                                
8:38:42 AM                                                                                                                    
                                                                                                                                
MR. SKIDMORE directed attention to Section  1, on page 1, line 9,                                                               
through page 2, line 5, of  HB 351.  He offered his understanding                                                               
that  Section  1  would  repeal AS  18.65.240(c),  which  is  the                                                               
provision  that  gives the  council  the  ability to  revoke  the                                                               
license or  certificate of  a law enforcement  officer.   He said                                                               
"it" does not  specify that "we" would  follow the Administrative                                                               
Procedures Act; however,  he noted that within the  Act, which is                                                               
referenced on page 2, line 1,  as AS 44.62.330 - 44.62.630, it is                                                               
specifically  stated that  the  Alaska  Police Standards  Council                                                               
must follow the  Act.  He said  under the Act there  is a hearing                                                               
to which anyone is entitled  and during which the hearing officer                                                               
makes findings of  fact and recommendations to the  council.  The                                                               
council  then  exercises  its  own  independent  judgment  as  to                                                               
whether to follow the recommendation  of the hearing officer.  He                                                               
stated that  this is  the same  procedure as  is followed  by the                                                               
Alaska Bar Association, but the  association is not controlled by                                                               
the Administrative Procedures Act.                                                                                              
                                                                                                                                
8:41:47 AM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE stated  that under  HB 351,  the discretion  of the                                                               
council would  be removed, which  he opined  is not a  good idea.                                                               
He said  the 13 people serving  on the council decide  whether or                                                               
not [the officer in question]  has fallen below the minimum level                                                               
of the expectations  for the standards that are  set for officers                                                               
across  the  state.    Under  HB 351,  the  person  making  those                                                               
decisions  would  be  a  hearing   officer  who  is  not  in  law                                                               
enforcement,  and the  council  would  not be  able  to revoke  a                                                               
license unless the hearing officer  had first made that decision.                                                               
He stated that society is built  on trust that people will follow                                                               
the rules of the state or  be held accountable by law enforcement                                                               
officers.  He talked about the  importance of being able to trust                                                               
law enforcement  officers, because  without that trust  the whole                                                               
system falters.  He  said that is why the decision  of who is and                                                               
is not an appropriate officer should remain within the council.                                                                 
                                                                                                                                
8:44:21 AM                                                                                                                    
                                                                                                                                
MR. SKIDMORE stated that there are  also issues with how [HB 351]                                                               
would  affect  the  criminal  justice  system's  function.    For                                                               
example, he said  as a prosecutor he is obligated  to disclose to                                                               
the  defense whether  an officer  is  deemed to  be dishonest  or                                                               
there are  problems with his/her  credibility.  The  defense will                                                               
ask "those questions"  during the trial, the jury  will judge the                                                               
officer, and judges may not be  willing to issue a search warrant                                                               
to the  officer in  the future.   Current  law ensures  that only                                                               
trustworthy officers  are certified,  and if [the  council] finds                                                               
one that  is not trustworthy,  it is  invested with the  power to                                                               
remove him/her.   The proposed  legislation would  eliminate that                                                               
ability and  give the  decision to  a sole  hearing officer.   He                                                               
asked the committee not to let that happen.                                                                                     
                                                                                                                                
8:45:52 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN asked  what the  qualifications are  for                                                               
the single hearing officer to which Mr. Skidmore referred.                                                                      
                                                                                                                                
MR.  SKIDMORE answered  that the  specifics are  included in  the                                                               
Administrative Procedures Act.                                                                                                  
                                                                                                                                
REPRESENTATIVE  JOHANSEN  offered   his  understanding  that  Mr.                                                               
Skidmore's testimony implies that [a  hearing officer] is not the                                                               
right  person to  [make those  decisions], and  he said  he would                                                               
like to know why.                                                                                                               
                                                                                                                                
MR.  SKIDMORE  said that  while  he  cannot relate  how  [hearing                                                               
officers] are  selected, part of  his concern is that  the person                                                               
selected is  not likely  to be  a member  of the  law enforcement                                                               
community.  Furthermore, he reiterated  his concern in giving the                                                               
decision  making to  one individual  rather  than to  a group  of                                                               
individuals that can bring different points of view.                                                                            
                                                                                                                                
8:49:15 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  P. WILSON  asked  if  the reason  for  HB 351  is                                                               
because someone lost his/her license and is disgruntled.                                                                        
                                                                                                                                
8:50:11 AM                                                                                                                    
                                                                                                                                
MR. SKIDMORE mentioned  recent court cases, but said  he does not                                                               
know  if  those  cases  were  the  instigators  of  the  proposed                                                               
legislation.   In  the  cases,  he said,  even  though the  court                                                               
determined that  the officers had  engaged in  egregious conduct,                                                               
because  the  department  had  a  history  of  not  firing  those                                                               
officers  in the  past who  engaged  in similar  conduct, it  was                                                               
determined that  it would  not be  fair to  fire the  officers in                                                               
question.   He  directed attention  to Section  3, which  read as                                                               
follows:                                                                                                                        
                                                                                                                                
          *Sec.3. AS 18.65 is amended by adding a new                                                                         
     section to read:                                                                                                           
                    Sec. 18.65.244.  Deference to prior                                                                       
     resolutions.     Notwithstanding   AS  18.65.240,   the                                                                  
     council may not  suspend, revoke, or refuse  to issue a                                                                    
     certificate   to   a   police  officer   based   on   a                                                                    
     disciplinary  action against  the  police officer  that                                                                    
     has been reversed or removed as the result of                                                                              
                         (1) an arbitration or grievance                                                                        
     proceeding under a collective bargaining agreement;                                                                        
               (2) a grievance, hearing, or other                                                                               
     proceeding under applicable personnel rules; or                                                                            
                (3) a proceeding under AS 44.62                                                                                 
     (Administrative Procedure Act).                                                                                            
                                                                                                                                
MR. SKIDMORE said  lines 10-19 state that the  council would also                                                               
be  bound by  what happens  in employment  law rather  than being                                                               
allowed to exercise its own  discretion and judgment.  He offered                                                               
further details.                                                                                                                
                                                                                                                                
MR.  SKIDMORE talked  about another  case, which  involved sexual                                                               
harassment and  dishonesty, both of  which are of concern  to the                                                               
council.  He  said there was no question that  the harassment and                                                               
dishonesty  occurred;  the  question  was  what  the  appropriate                                                               
sanction would  be.  He  said the answer is  completely different                                                               
depending   on   whether   the  focus   is   on   employment   or                                                               
certification.  He offered an  example, in which a lawyer engages                                                               
in  criminal conduct.   He  said  the lawyer's  employer may  not                                                               
ultimately be able to fire the  lawyer, but if the bar decides to                                                               
revoke the  lawyer's license,  then he/she would  not be  able to                                                               
practice  law anyway.   He  said he  thinks the  view is  that if                                                               
litigation  results in  someone  being able  to remain  employed,                                                               
then it is unfair that his/her  license could then be taken away.                                                               
He   said  he   understands  that   viewpoint  but   respectfully                                                               
disagrees,  because  the two  processes  are  separate:   one  is                                                               
employment law,  while the  other is a  statewide standard  - the                                                               
minimum  of what  should apply.   He  said there  are boards  and                                                               
councils across the state to uphold  those standards.  He said he                                                               
has worked  in places  in the  state where  he is  unsure whether                                                               
that the litigation  that would be involved  in employment issues                                                               
would be  "the same level  of litigation."   He stated,  "Even if                                                               
it's dealing with APD or the  Alaska State Troopers, I don't even                                                               
want  to rely  on  that,  because the  council  conducts its  own                                                               
independent investigation and reaches  its own conclusions, and I                                                               
don't think  it should  have to  be bound by  what occurs  in the                                                               
employment litigation context."                                                                                                 
                                                                                                                                
8:57:35 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN  offered   his  understanding  that  Mr.                                                               
Skidmore had  said that Section  3 would  limit the council.   He                                                               
stated his belief  that the legislature confirms  each member [of                                                               
the council].                                                                                                                   
                                                                                                                                
MR. SKIDMORE confirmed that is correct.                                                                                         
                                                                                                                                
REPRESENTATIVE   JOHANSEN   ventured   that   the   legislature's                                                               
confirmation of  members is a  good indication they  are capable.                                                               
He asked  if Mr. Skidmore  is saying  that Section 3  would limit                                                               
the information that [the council] would have to make decisions.                                                                
                                                                                                                                
MR.  SKIDMORE answered  no.   He clarified  that Section  3 would                                                               
require  the council  to follow  along  with what  happens in  an                                                               
arbitration  or  a grievance  under  collective  bargaining.   He                                                               
added, "So,  it's not that  it limits the information  they have;                                                               
it just [limits] what they can do."                                                                                             
                                                                                                                                
8:59:31 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  P.  WILSON said  she  has  a problem  with  that,                                                               
because  there are  times  when she  has felt  the  outcome of  a                                                               
collective  bargaining  agreement was  unsafe.    She offered  an                                                               
example of a school district that  could not do something about a                                                               
person who  was saying and doing  things that were "not  good for                                                               
students."   She opined that  the current ability of  the council                                                               
to override a decision is good.                                                                                                 
                                                                                                                                
MR.  SKIDMORE   noted  that  teachers  are   governed  under  the                                                               
Administrative Procedures Act; therefore,  the example offered by                                                               
Representative P. Wilson is right on point.                                                                                     
                                                                                                                                
9:01:27 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PETERSEN asked Mr. Skidmore  to clarify if what he                                                               
is saying is that this could lead down a slippery slope.                                                                        
                                                                                                                                
MR.  SKIDMORE responded  that  he  could not  have  said it  more                                                               
clearly than that.                                                                                                              
                                                                                                                                
9:02:01 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER  referred to  the mission statement  of the                                                               
council, which read as follows:                                                                                                 
                                                                                                                                
          To produce and maintain a highly trained and                                                                          
     positively motivated professional, capable of meeting                                                                      
     contemporary law enforcement standards of performance.                                                                     
                                                                                                                                
REPRESENTATIVE   KELLER   said   Mr.  Skidmore's   testimony   is                                                               
convincing; however, he  noted that the mission  statement has no                                                               
mention of maintaining the public's trust.                                                                                      
                                                                                                                                
MR.  SKIDMORE  responded  that  he  equates  "professional"  with                                                               
someone in  whom the public  can place its  trust.  He  said that                                                               
his experience  as head  of special  prosecutions brought  him to                                                               
consider whether  individuals who hold positions  of public trust                                                               
should be sentenced for criminal  conduct beyond what the average                                                               
citizen would.   He  stated his  belief that  the answer  to that                                                               
question  is yes,  because it  is the  violation of  public trust                                                               
that  is so  important.   He  offered  an example.    He said  he                                                               
believes  that  the  vast  majority  of  people  working  in  law                                                               
enforcement right now are professionals.                                                                                        
                                                                                                                                
9:05:42 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  directed attention to the  words "reversed                                                               
or removed"  in Section 3, and  he asked for clarification  as to                                                               
the difference between them.                                                                                                    
                                                                                                                                
9:07:01 AM                                                                                                                    
                                                                                                                                
MR. SKIDMORE answered  that a reversal is  the ultimate decision.                                                               
He said he is  not certain of the meaning of  removed in the bill                                                               
language,  but ventured  that  it  may mean  the  removal from  a                                                               
personnel  file  any mention  of  an  allegation.   He  said  the                                                               
council already takes into consideration  what has happened in an                                                               
employment context, but should not be bound by that information.                                                                
                                                                                                                                
9:08:31 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHANSEN,  in response to  Representative Keller's                                                               
previous  remark, proffered  that  mission  statements are  often                                                               
written  by a  group of  people  trying to  figure out  a way  to                                                               
present the  actual statutory requirements.   He read  an excerpt                                                               
of  subsection  (a)  of  AS  18.65.240,  which  read  as  follows                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     Sec. 18.65.240.  Standards.                                                                                                
          (a) A person may not be appointed as a police                                                                         
     officer,  except on  a probationary  basis, unless  the                                                                    
     person  (1)   has  satisfactorily  completed   a  basic                                                                    
     program  of police  training approved  by the  council,                                                                    
     which  includes  at  least   12  hours  of  instruction                                                                    
     regarding   domestic   violence   as  defined   in   AS                                                                    
     18.66.990, and  (2) possesses other  qualifications the                                                                    
     council has  established for  the employment  of police                                                                    
     officers,  including minimum  age, education,  physical                                                                    
     and  mental  standards, citizenship,  moral  character,                                                                    
     and experience.  The council shall prescribe  the means                                                                    
         of presenting evidence of fulfillment of these                                                                         
     requirements.                                                                                                              
                                                                                                                                
REPRESENTATIVE   JOHANSEN  said,   "It's  not   in  the   mission                                                               
statement; it's in the statute that  this body at some point over                                                               
time has passed.   And I think that may be the  basis for some of                                                               
the testimony that we've had today."                                                                                            
                                                                                                                                
9:09:49 AM                                                                                                                    
                                                                                                                                
JAKE  METCALF,   Executive  Director,  Public   Safety  Employees                                                               
Association,   Inc./American   Federation   of   State,   County,                                                               
Municipal  Employees (PSEA/AFSCME)  Local  803, said  PSEA/AFSCME                                                               
Local  803 represents  state troopers,  court services  officers,                                                               
airport police  in Anchorage and  Fairbanks, and  police officers                                                               
in Ketchikan,  Sitka, Juneau, Fairbanks, Soldotna,  Dutch Harbor,                                                               
and Dillingham.   He relayed that prior to  his current position,                                                               
he served as  an assistant attorney general  and attorney general                                                               
in  Bethel,  and  as  a  prosecutor  in  the  Office  of  Special                                                               
Prosecutions, where  he was a  colleague of Mr.  Skidmore.     He                                                               
said  as  a  prosecutor  he   dealt  with  misconduct  by  police                                                               
officers.                                                                                                                       
                                                                                                                                
MR. METCALF stated  that PSEA/AFSCME Local 803  believes that the                                                               
APSC has a job that is  important to the people PSEA/AFSCME Local                                                               
803  represents and  the  job  that those  people  do.   He  said                                                               
PSEA/AFSCME Local  803 does not want  to take away any  of APSC's                                                               
powers.   He  said PSEA/AFSCME  Local 803  helps police  officers                                                               
surrender  their certificates  when  it  is time  to  do so,  but                                                               
believes that the  process should be a fair one.   He stated that                                                               
a police officer  who has had his/her  certificate revoked cannot                                                               
work anywhere  else in the  country.  He  said this is  not wrong                                                               
for those  who are bad  police officers,  but for those  who have                                                               
been accused unfairly, without the  full facts, it can ruin their                                                               
lives.   He stated that  PSEA/AFSCME Local 803 does  not disagree                                                               
with testimony  stating that  there have not  been many  cases of                                                               
revocation, but  wants to ensure  that the  process is fair.   He                                                               
said the  proposals made in  HB 351  would make the  process fair                                                               
and  would  not take  away  anything  from  the APSC,  but  would                                                               
actually give the council more tools.                                                                                           
                                                                                                                                
9:13:37 AM                                                                                                                    
                                                                                                                                
MR.  METCALF, regarding  licensure  impacts  of misconduct,  said                                                               
PSEA/AFSCME Local  803 has  asked that  suspension be  allowed in                                                               
the process.   Currently the  council has  no power to  suspend a                                                               
license; all it can do is revoke or grant a certificate.                                                                        
                                                                                                                                
MR. METCALF  referred to [paragraph  (3), in Section 1],  on page                                                               
2,  which read:   "(3)  following the  filing of  a statement  of                                                               
issues,  hearing, and  decision under  AS 44.62.330  - 44.62.630,                                                               
refuse  to issue  a certificate  to an  applicant, if  refusal is                                                               
consistent with  the decision."   He  said PSEA/AFSCME  Local 803                                                               
thinks that the  person who is coming under  revocation should be                                                               
given notice, that there should be  a hearing, and that the rules                                                               
of the  APA should be  followed.   He said PSEA/AFSCME  Local 803                                                               
does  not  believe that  is  the  case  currently.   He  gave  an                                                               
example, in which someone was  given the opportunity to surrender                                                               
his/her license, but  had not been given notice as  to the reason                                                               
for decertification.   He said  PSEA/AFSCME Local 803  hopes that                                                               
HB  351 will  lay out  groundwork for  the council  for the  fair                                                               
treatment of people.                                                                                                            
                                                                                                                                
MR.  METCALF  referred to  Section  2,  which would  require  the                                                               
council  to  "prove the  conduct  alleged  in the  accusation  or                                                               
statement  of  issues by  clear  and  convincing evidence."    He                                                               
recollected that Mr.  Skidmore had said that  the bar association                                                               
is outside of the Administrative Procedure  Act.  He said the Act                                                               
addresses  consideration of  the preponderance  of evidence.   He                                                               
said that  is the lowest burden  of proof that the  Act requires;                                                               
however, an  agency is allowed  to use  a higher burden  of proof                                                               
under the  Act.  Mr. Metcalf  listed the three burdens  of proof:                                                               
preponderance  of the  evidence, clear  and convincing  evidence,                                                               
and beyond  a reasonable doubt.   The latter is used  in criminal                                                               
trial, while  clear and convincing  is used in  employment trial.                                                               
He  said  PSEA/AFSCME Local  803's  "changes"  would protect  all                                                               
police  officers,  not  just  those  with  collective  bargaining                                                               
agreements.                                                                                                                     
                                                                                                                                
9:18:19 AM                                                                                                                    
                                                                                                                                
MR. METCALF stated that  collective bargaining agreements include                                                               
clauses that make the decisions  of the arbitrator binding on the                                                               
employee and the  employer.  He said the  language in PSEA/AFSCME                                                               
Local 803's  agreement with  the state  troopers has  existed for                                                               
over 30  years.  He  said there is  a standard that  is followed.                                                               
If there is an issue regarding  employment, a hearing is held, in                                                               
which each  side can present  relevant evidence.   The arbitrator                                                               
is trained in employment matters  and makes the binding decision.                                                               
He  said in  recent cases  the state  has not  liked the  binding                                                               
decision  and the  matter has  been brought  to the  Alaska State                                                               
Superior Court and the Alaska  Supreme Court.  He mentioned cases                                                               
where both courts decided that  the arbitrator had made the right                                                               
decision.  Further,  a hearing officer decided  that the employee                                                               
in  question  does  not  deserve   to  have  his/her  certificate                                                               
revoked.  Mr. Metcalf indicated that  six years may have gone by,                                                               
during which  the officer  in question has  not worked,  and that                                                               
officer may  think the case has  been settled, but the  APSC then                                                               
overturns  all the  decisions.   He  said  PSEA/AFSCME Local  803                                                               
thinks that the council should  pay attention to the decisions of                                                               
both parties, the  Alaska Supreme and Superior  Court judges, and                                                               
the hearing officer chosen by both parties.                                                                                     
                                                                                                                                
MR. METCALF said  PSEA/AFSCME Local 803 thinks  Section 1-3 would                                                               
make the system  fairer and give the council  more tools, without                                                               
placing  burden or  taking away  any of  the standards  currently                                                               
outlined in statute.                                                                                                            
                                                                                                                                
9:23:13 AM                                                                                                                    
                                                                                                                                
MR.  METCALF, regarding  Section  3 and  the  deference of  prior                                                               
resolutions, said PSEA/AFSCME Local 803  wants the council to pay                                                               
attention   to   arbitration,    personnel   rules,   and   court                                                               
arbitration, but  it also believes  that the council can  make an                                                               
independent decision based on new facts.                                                                                        
                                                                                                                                
9:26:20 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON asked what the  purpose is for suspending a                                                               
certificate.                                                                                                                    
                                                                                                                                
9:26:32 AM                                                                                                                    
                                                                                                                                
MR. METCALF answered that one purpose  may be to use a suspension                                                               
until  such   time  as  the   council  makes  a  decision   on  a                                                               
termination.   It makes it  possible for the officer  in question                                                               
to deal with a problem,  for example drug addiction, before being                                                               
allowed to come back to work.                                                                                                   
                                                                                                                                
REPRESENTATIVE SEATON offered his  understanding that Mr. Metcalf                                                               
had noted instances  where the APA has not been  followed, and he                                                               
asked Mr. Metcalf if he has gone to court to address that issue.                                                                
                                                                                                                                
MR. METCALF said  there are cases in process.   He said last week                                                               
PSEA/AFSCME Local  803 received  letters from APSC  regarding the                                                               
actions that  the council is  taking.  He said  PSEA/AFSCME Local                                                               
803 would rather have statutes that  set up a fair system that is                                                               
clearly defined  for APSC,  with full  disclosure of  the actions                                                               
being taken  against the officer  involved, and with  due process                                                               
followed.                                                                                                                       
                                                                                                                                
REPRESENTATIVE SEATON  said he is  confused, because  Mr. Metcalf                                                               
is asking  for statute to be  changed when the APA  is already in                                                               
statute and includes full hearing requirements.                                                                                 
                                                                                                                                
MR. METCALF  explained that PSEA/AFSCME  Local 803 is  not asking                                                               
to  move  away from  the  APA,  but is  asking  that  the Act  be                                                               
followed and that the APSC be  given guidance as to how to follow                                                               
it correctly.                                                                                                                   
                                                                                                                                
9:29:55 AM                                                                                                                    
                                                                                                                                
STEVE SORENSON, General Council,  Corporate Board, Public Service                                                               
Employees  Association  (PSEA), stated  that  the  intent of  the                                                               
proposed  legislation is  to make  sure the  council follows  the                                                               
APA.   Regarding  the  information provided  by  Mr. Metcalf,  he                                                               
stated  that back  in December,  the council  voted in  executive                                                               
session to  take away someone's  certificate, but  without notice                                                               
to the officer  and without due process.   Echoing Mr. Metcalfe's                                                               
testimony,  he outlined  the process  that should  have occurred.                                                               
He  said the  council should  make the  determination whether  to                                                               
revoke  a certificate  at  the end  of the  process,  not at  the                                                               
beginning.                                                                                                                      
                                                                                                                                
REPRESENTATIVE SEATON said that before  the next hearing he would                                                               
like to hear a  discussion of the APA and how  it falls within an                                                               
occupational  licensing  board  and   whether  that  involves  an                                                               
administrative hearing officer or is an employment action.                                                                      
                                                                                                                                
9:33:49 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  P. WILSON,  regarding  the aforementioned  cases,                                                               
said she  cannot imagine that the  officers had no clue  they had                                                               
done something big enough to result in council action.                                                                          
                                                                                                                                
MR.  SORENSON  confirmed that  in  none  of  the cases  were  the                                                               
officers informed  of the  council's action  in December;  it was                                                               
not until March that any of them were notified.                                                                                 
                                                                                                                                
9:38:06 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PETERSEN  referred to  language in Section  1 that                                                               
would allow  the council to  suspend an officer's  certificate if                                                               
that officer did not meet  the standards [under AS 18.65.240(c)].                                                               
He asked if the reason for  the suspension would be to allow time                                                               
for due process.                                                                                                                
                                                                                                                                
9:38:48 AM                                                                                                                    
                                                                                                                                
MR.  METCALF said  he thinks  that is  one reason.   Another,  he                                                               
said, is to give a middle  ground between granting and revoking a                                                               
license.                                                                                                                        
                                                                                                                                
9:39:20 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PETERSEN asked if the  suspension could be used as                                                               
a form of punishment.                                                                                                           
                                                                                                                                
9:39:38 AM                                                                                                                    
                                                                                                                                
MR. METCALF answered yes, and  he reiterated his previous example                                                               
of an officer that may have a substance abuse issue.                                                                            
                                                                                                                                
9:39:53 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHANSEN asked if PSEA  would still support HB 351                                                               
if the language  in Section 1 regarding suspension  were the only                                                               
language left in the bill.                                                                                                      
                                                                                                                                
9:40:26 AM                                                                                                                    
                                                                                                                                
MR. SORENSEN answered yes.                                                                                                      
                                                                                                                                
REPRESENTATIVE  JOHANSEN opined  that saying  the council  is not                                                               
following the  APA is  a serious  allegation.   He asked  if PSEA                                                               
instigated the proposed legislation "as a result of this case."                                                                 
                                                                                                                                
9:41:57 AM                                                                                                                    
                                                                                                                                
MR. METCALF  said he  respects people on  "the board"  but thinks                                                               
that  current  statutes  have  no direction,  and  that  lack  of                                                               
direction adversely affects police officers.                                                                                    
                                                                                                                                
9:42:58 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER  said in future  he wants to know  what the                                                               
procedure   is   that   would   prevent   recertification   after                                                               
revocation.                                                                                                                     
                                                                                                                                
[HB 351 was held over.]                                                                                                         
                                                                                                                                

Document Name Date/Time Subjects
01 HB0351A.pdf HSTA 4/3/2012 8:00:00 AM
HB 351
02 HB 351 Sponsor Statement.pdf HSTA 4/3/2012 8:00:00 AM
HB 351
03 HB 351 Sectional Analysis.pdf HSTA 4/3/2012 8:00:00 AM
HB 351
04 HB351 Background.pdf HSTA 4/3/2012 8:00:00 AM
HB 351
05HB 351 Support Letters.pdf HSTA 4/3/2012 8:00:00 AM
HB 351
06 HB351-DPS-APSC-03-31-12.pdf HSTA 4/3/2012 8:00:00 AM
HB 351
07 HB351-DPS-JUD-03-31-12.pdf HSTA 4/3/2012 8:00:00 AM
HB 351
08 HB351-DOA-LR-2-29-12.pdf HSTA 4/3/2012 8:00:00 AM
HB 351
01 HB 345.pdf HSTA 4/3/2012 8:00:00 AM
HB 345
02 HB 345 Sponsor Statement.pdf HSTA 4/3/2012 8:00:00 AM
HB 345
03 HB 345 AK CDL Statute (1).pdf HSTA 4/3/2012 8:00:00 AM
HB 345
04 HB 345 FederalCDL Statute and Waiver.pdf HSTA 4/3/2012 8:00:00 AM
HB 345
05 HB 345 Connecticut CDL Waiver (1).pdf HSTA 4/3/2012 8:00:00 AM
HB 345
06 HB 345 New York CDL Waiver (1).pdf HSTA 4/3/2012 8:00:00 AM
HB 345
07 HB 345 Pennsylvania CDL Waiver.pdf HSTA 4/3/2012 8:00:00 AM
HB 345
08 HB 345 Washington CDL Waiver.pdf HSTA 4/3/2012 8:00:00 AM
HB 345
09 HB 345 Federal Medical Reqmnts.pdf HSTA 4/3/2012 8:00:00 AM
HB 345
10 HB 345 Federal Hours of Service Regs (1).pdf HSTA 4/3/2012 8:00:00 AM
HB 345
11 HB345-DOA-DMV-3-23-12.pdf HSTA 4/3/2012 8:00:00 AM
HB 345
00 SB0053A.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
01 CS SB53 SSTA Version M.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
02 SB53 Sponsor Statement.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
03 SB 53 Explanation of Changes.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
04 SB 53 Background Information.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
05 SB 53 Statistics.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
06 SB 53 Annual Reports.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
07 SB 53 Letters of Support.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
08 SB53 Letter of Support Alaska CSW 3-29-12.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
09 SB53 AARP Support Letter.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
10 SB 53 Fiscal Note.pdf HSTA 4/3/2012 8:00:00 AM
SB 53
09 HB351 Comparison Table.pdf HSTA 4/3/2012 8:00:00 AM
HB 351