Legislature(2011 - 2012)CAPITOL 106
04/05/2012 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB351 | |
| Confirmation Hearing(s): Alaska Public Offices Commission | |
| SCR17 | |
| SB53 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SCR 17 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 351 | TELECONFERENCED | |
| += | SB 53 | TELECONFERENCED | |
HB 351-POLICE OFFICER PROTECTIONS/CERTIFICATION
8:07:52 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."
8:08:57 AM
REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, as
sponsor, introduced HB 351. He explained that his office is
working on a committee substitute for HB 351 that would be
supported by people on both sides of the issue, and while that
version is not yet ready, there is a committee substitute for
the committee's consideration that he described as "sufficiently
mature." He requested that the committee not move out HB 351
today.
8:10:16 AM
REPRESENTATIVE KELLER moved to adopt the proposed committee
substitute (CS) to HB 351, Version 27-LS1352\M, Wayne, 4/4/12,
as a work draft.
REPRESENTATIVE SEATON objected for the purpose of discussion.
8:10:40 AM
JULIE LUCKY, Staff, Representative Mike Hawker, Alaska State
Legislature, reviewed the changes in Version M. She said
because no one stated an objection to the use of suspension, it
remains in the bill. The primary concern expressed at the last
hearing, she reviewed, was that the Alaska Police Standards
Council's (APSC's) hands not be tied to a decision made by a
hearing officer or to a decision made by a court of arbitration
when the council judges that the officer in question should be
disciplined for objectionable behavior. To address that
concern, she said, Section 1 now would allow the council to
revoke the certificate of a police officer or refuse to issue a
certificate to an applicant following filing of an accusation
and delivering notice of it. She said Version M removes the
requirement that the council's refusal or revocation must be
consistent with the decision of the hearing officer, because
that requirement is limiting to the council. She offered her
understanding that under the current Administrative Procedure
Act (APA), if the council does deviate from the decision of a
hearing officer, it must support its reason in writing.
8:13:14 AM
MS. LUCKY said no changes were made in Section 2, which requires
the council to prove the conduct of the accused by clear and
convincing evidence. She acknowledged that this issue is a
point of contention, and that some would want the proof to be a
preponderance of evidence. She said that is a policy call for
the committee to make. Ms. Lucky said Section 3 prohibits the
council from taking action on ["a proceeding to revoke, suspend,
or refuse to issue a certificate to a police officer"] that is
under dispute or has been taken up by a court; however, Version
M would add certain circumstances [paragraphs 1-7, on page 2,
line 25, through page 3, line 21], under which the council would
could make exceptions to that prohibition.
8:16:47 AM
MS. LUCKY, in response to Representative P. Wilson, stated that
the overall intent of Section 3 is to separate employment
actions taken through collective bargaining from revocation
actions taken when an officer fails to meet the standards set by
the council.
8:20:43 AM
MS. LUCKY, in response to Representative Seaton, said, "These
seven exceptions would be the exceptions to considering evidence
that has already been decided through another process or is
currently in dispute in another process."
REPRESENTATIVE SEATON asked Ms. Lucky to confirm that AS
18.65.244 relates only to actions following court cases or
grievance procedures.
MS. LUCKY said Representative Seaton's summation is correct.
8:23:31 AM
REPRESENTATIVE P. WILSON remarked that sometimes appeals take a
long time, and she ventured that "this" would allow [the officer
in question] to continue making appeals and "be able to do what
he wants."
MS. LUCKY indicated that that is correct, except in the case of
the previously mentioned seven exceptions.
REPRESENTATIVE P. WILSON proffered that an officer being
investigated for sexual misconduct, as long as it did not occur
while on duty, would be allowed to keep [working] until the
appeal process was completed.
MS. LUCKY said that is how she interprets [Section 3], which was
reworked in response to concerns expressed by the committee at
its last hearing of HB 351.
8:25:37 AM
REPRESENTATIVE SEATON asked if Version M would give [the
council] subpoena power, another avenue for obtaining
information.
MS. LUCKY said that is not addressed in Version M, which was
written by a bill drafter, and she said she would like to get
more information from the bill drafter. She said, "It would
only apply to court cases [and] arbitration where the
termination had been reversed."
REPRESENTATIVE SEATON pointed to the phrase, "or is in dispute",
on page 2, line 14, and said, "It looks like they could not use
any of that information to do it."
MS. LUCKY responded, "That is correct, other than misconduct
that is enumerated in items 1-7; that's my understanding."
8:28:10 AM
MS. LUCKY noted that the original bill version adds court
services officers to the definition of "police officer" in
Section 4, and Version M offers no further changes. She
indicated that there is a trend toward adding court services
officers already in the making, and the sponsor is considering
an amendment to delay the effective date of Section 4 "if that's
happening anyway." In response to the chair, she confirmed that
the amendment is included in the committee packet. Ms. Lucky
said Sections 5-6 address the administration of a lie detector
test. She related that in response to committee discussion at
the last hearing, the sponsor has clarified, [with the addition
of paragraph (3) in Version M], his intent "that this apply to
current employees and not bar the use of lie detector tests
during the application process." She stated that no changes
were made to Section 7, which addresses the confidentiality of
personal information held by the employer and includes the
following exceptions of that which could be released for
inspection, provided the officer was legally arrested: a
photograph of the officer, information included in a 9-1-1 call,
a police or investigative report, a complaint made to a law
enforcement agency, and a witness statement. She said the only
objection heard regarding Section 7 is regarding the release of
photos. She indicated that concern has been expressed that
photos would have to be taken down in all the police stations.
She said that is not the intent of the sponsor. She said the
sponsor envisions the waiver process to include a form signed at
the beginning of the hiring process regarding the release of
photographs.
8:31:47 AM
REPRESENTATIVE KELLER, regarding the aforementioned Section 3,
paragraph 7, questioned "who would notify the police officer of
those circumstances." He said he is trying to get clarification
on the "large section related to refusal to answer."
MS. LUCKY suggested someone else may be better able to explain
that portion of Version M.
8:33:23 AM
REPRESENTATIVE P. WILSON directed attention to Section 6, on
page 4, and noted that Version M takes away the "or" on line 25
between the first two reasons that ["A public employer may not
discharge, threaten, or otherwise discriminate against an
employee regarding the employee's compensation, terms,
conditions, location, or privileges of employment"]; therefore,
both reasons would have to apply together.
MS. LUCKY responded that that is not the intent of the sponsor.
She offered her understanding that by moving the "or" from
between the first two paragraphs to between the second and newly
added third paragraph [on line 28], the "or" would apply to all
three paragraphs.
8:35:50 AM
REPRESENTATIVE SEATON, regarding Section 1, asked about the
purpose of a suspension. He said he is troubled by changing the
council to one that upholds minimum requirements to a council
that is disciplinary and issues suspensions.
MS. LUCKY responded that one circumstance in which suspension
may be a better choice is when an officer is seeking treatment
for chemical or alcohol addiction and could be sent to a
recovery program while under suspension. She suggested that it
may be helpful to be able to suspend someone so that he/she does
not have to go through the process of being recertified.
REPRESENTATIVE SEATON said he wants the people on both sides of
the issue to address it.
8:39:34 AM
REPRESENTATIVE GRUENBERG directed attention to a legal
memorandum in the committee packet from the Alaska Civil
Liberties Union (ACLU), and offered his understanding that under
HB 351, the council will be able to suspend the certificate of
an officer before filing an accusation or a statement of issues.
He asked if it is the intent of the sponsor that the council
should be required to provide any statement of reasons to the
officer.
MS. LUCKY answered that the sponsor is responding to a concern
regarding voluntary relinquishment of a license. She explained
that it is the sponsor's intent to allow an immediate suspension
when it perceives "something is going wrong," so that there is
time to go through the process without the first step being
decertification or revocation. She reiterated the sponsor's
intent to make further improvements to the proposed legislation.
MS. LUCKY, in response to Representative Gruenberg, said the
issue of hearings is covered under AS 44.62.330-630, which is
the Administrative Procedure Act.
8:43:26 AM
MS. LUCKY, in response to Representative Petersen, requested
that the aforementioned amendment in the committee packet be
ignored for the time being.
8:44:19 AM
REPRESENTATIVE GRUENBERG said he is particularly interested in
looking at the contours of what rights a person in the position
of an accused police officer has under due process. He opined
that HB 351 has many constitutional and policy issues to
consider.
8:46:47 AM
REPRESENTATIVE JOHANSEN, regarding Representative Seaton's
mention of suspensions, noted that AS 18.65.240 includes
standards related to education and the physical and mental make-
up of an officer. He said these are issues that can be
addressed and corrected. He said he would like the council to
have the flexibility [to suspend an officer] and for the issue
of suspension to not be restricted to the idea of immorality or
lying.
8:48:03 AM
MS. LUCKY echoed Representative Johansen's remark regarding
allowing the council to use suspension as a tool, and emphasized
that the proposed legislation would not bind the council to
having to suspend someone.
8:48:31 AM
REPRESENTATIVE GRUENBERG mentioned past legislation addressing
the removal of a University of Alaska regent. He remarked that
someone could be under suspension and be under a temporary
disability, and that person should be able to seek a hearing and
reinstatement during the process.
MS. LUCKY [nodded] in response to the chair asking her if she
understands the concern.
8:49:40 AM
REPRESENTATIVE P. WILSON posited that the committee needs to
narrow down the issue related to personal identification.
8:50:16 AM
REPRESENTATIVE SEATON removed his objection to the previously
stated motion to adopt the proposed committee substitute (CS) to
HB 351, Version 27-LS1352\M, Wayne, 4/4/12, as a work draft.
There being no further objection, Version M was before the
committee.
8:51:36 AM
RICHARD BURTON testified that although he is a member of the
Alaska Police Standards Council, he was not testifying in an
official capacity, but was there to impart some history
regarding the council and its standards. He related his
involvement in drafting the language that became the original
police standards law, through Senate Bill 1, in 1971. He said
he served as the commissioner of the Department of Public Safety
during Governor Jay Hammond's term of office and Governor Walter
Hickel's last term of office, and he can offer insight from his
time on the council, which currently totals 14 years. He said
before statehood there were no police standards and "Alaska was
a pretty wild and wooly place." He offered examples. He opined
that since statehood, the state has done a good job in creating
state police, highway patrol, and local law enforcement.
8:54:39 AM
MR. BURTON said when HB 351 was introduced he was shocked,
because he has never seen any officer treated so badly as to
warrant fixing a system that is not broken. He offered to
answer questions. He observed that many issues contained in the
bill belong in the collective bargaining arena. In response to
Representative Keller, he offered further details regarding the
history of law enforcement in the territory of Alaska and into
early statehood. He said there are two definitions in law: a
police officer, which is a person with a badge on the street,
and a peace officer, which could be a deputy marshal or Federal
Bureau of Investigation (FBI) agent, for example. He said
because peace officers do not use patrol cars, answer calls, or
write tickets, he does not see that they need the same level of
training.
8:58:31 AM
REPRESENTATIVE JOHANSEN asked Mr. Burton to address the possible
fiscal impact under HB 351 that may result from training the
additional people.
MR. BURTON offered his understanding that there would be an
additional 400 hours of training, some of it physical, and he
ventured that some court services officers would not be capable
of completing such training. He indicated that the court
services officers would lose the skills they acquired in that
training if those skills were not utilized and kept current.
REPRESENTATIVE JOHANSEN noted that HB 351 would not be heard by
the House Finance Committee. He stated concern about the fiscal
impact.
CHAIR LYNN said the committee needs to delve into that issue.
MR. BURTON said the training would probably occur over several
years and cost "several hundreds of thousands of dollars."
9:02:15 AM
REPRESENTATIVE P. WILSON asked Mr. Burton what he thinks about
giving the ability to suspend to the council.
MR. BURTON said he is not certain how it would be useful. He
said substance abuse problems currently are being handled
administratively through management. He indicated that a police
chief should be able to take care of these problems on his/her
own, rather than foisting them off on the council.
9:03:31 AM
MR. BURTON, in response to Representative Keller, said he cannot
recall an instance where an officer whose certification was
revoked was subsequently rehired. He said what bothers him the
most in the proposed legislation is the change from
preponderance of evidence to clear and convincing evidence. He
opined that it is not right to single out the council to have to
reach a higher standard of proof.
9:05:08 AM
REPRESENTATIVE PETERSEN questioned whether the idea behind
having court services officers increase their training may be
because of increased threats to court personnel.
MR. BURTON responded, "[If] somebody wants to do something,
they're going to do it, and having a degree or high level of
education's not going to stop it." He said currently there are
good people who are dedicated to their jobs providing security.
9:06:34 AM
REPRESENTATIVE SEATON, regarding the provision in HB 351 that
would not allow the council to consider evidence closely related
to disciplinary action under certain circumstances, asked Mr.
Burton if the council has independent authority to generate
subpoena evidence.
MR. BURTON offered his understanding that the council has used
subpoenas to get records.
REPRESENTATIVE SEATON referred to the aforementioned seven
exceptions and asked Mr. Burton if he has concerns about not
being able to gather that information.
MR. BURTON related that he received Version M just this morning,
but said, "It's not real clear how binding some of the previous
action would actually be to prohibit the council from performing
what is statutorily their responsibility." He said he does not
know if this language has to do with a loophole, and he does not
want to offer further opinion before hearing what the council's
attorney has to say.
9:10:16 AM
CHAIR LYNN handed the gavel to Vice Chair Keller.
9:10:42 AM
SHELDON SCHMITT, Police Chief, Sitka Police Department; Chair,
Alaska Police Standards Council (APSC), testified on behalf of
APSC in opposition to HB 351. He explained that he thinks the
proposed legislation would erode the standards to which the
council currently holds police officers. He opined that the
standards are needed now more than ever, and he said he thinks
the proposed legislation would erode the authority of APSC and
undermine the public trust in Alaska's law enforcement.
9:12:32 AM
REPRESENTATIVE SEATON asked Mr. Schmitt if the use of
suspensions would change the mission of the council.
MR. SCHMITT answered that it may. He said there are other
states that have suspension as part of their purview, and he
said he can envision suspension being a tool for the council to
use in specific cases. However, he expressed concern over
turning the council into a disciplinary agency rather than just
a regulatory agency.
9:14:22 AM
REPRESENTATIVE PETERSEN asked if the authority to suspend might
give due process more time to take place.
MR. SCHMITT said he thinks that is a persuasive argument. He
said most departments put the police officer on administrative
leave - paid or unpaid - in order for that due process to take
place, which is, in effect, a suspension.
9:15:46 AM
REPRESENTATIVE P. WILSON asked Mr. Schmitt if he thinks that
under HB 351, a police officer could use the fact that he/she
could be suspended as an excuse to "take a chance a little bit
more than normal."
MR. SCHMITT said he thinks Representative P. Wilson is getting
to the heart of the matter and the reason that he is
uncomfortable with HB 351 in general. He said he has learned as
a lieutenant that the departments with the most instances of bad
behavior are usually the departments in which management has
failed to take disciplinary action. He said taking firm
disciplinary action is basic to the health of any organization.
He agreed that the knowledge that a person could get by with
just a suspension may promote bad behavior.
9:17:43 AM
The committee took a brief at-ease.
9:18:37 AM
JAKE METCALFE, Executive Director, Public Safety Employees
Association, Inc./American Federation of State, County,
Municipal Employees (PSEA/AFSCME) Local 803, stated that under
351, court service officers, which are not currently certified,
would be certified. He described court services officers as:
having jurisdiction within the courts, wearing a badge, carrying
a gun, wearing a uniform, transporting prisoners between court
houses in vehicles and on airplanes, and investigating crimes
that "happen on the court house," serving warrants, and serving
process. He related an incident in January when a person in
custody tried to make a run for the door during a court hearing
and the court services officer caught the man, arrested him, and
put him into custody. He said PSEA thinks that court services
officers do the type of duties that police officers do. Mr.
Metcalfe pointed out that under statute, Village Public Safety
Officers (VPSOs) in rural communities are certified; they do
limited investigations of misdemeanor crimes, but they don't
carry weapons. He said PSEA thinks that certifying court
services officers would address a liability problem in the
state. He said PSEA's members who are court services officers
want to be certified. Mr. Metcalfe said there are three basic
certification levels: basic, intermediate, and advanced. He
said PSEA believes that "a certification under those areas is
very possible and needed for court services officers." He
compared court services officers to airport police and
university police. He said PSEA sees [certification] as
something that would improve policing and be good for the court
system, as well as something that is long overdue.
9:22:25 AM
MR. METCALF addressed the issue of suspension, which he stated
PSEA thinks of as a tool. He said Representative Johansen hit
the nail on the head with his comments about suspension. He
said suspension would not be mandatory, but would be available
to address emotional issues and could be used, for example, in
response to some Class A misdemeanors instead of revoking the
certification of an otherwise good police officer. He said PSEA
supports the ability of APSC to certify and revoke
certifications, but thinks the time has come to "modernize that"
in a fair manner. He urged the committee to pass Version M.
9:24:22 AM
REPRESENTATIVE JOHANSEN asked Mr. Metcalf if he believes the
training for the court officers would incur cost to the state.
MR. METCALF responded that any kind of training would cost
money; however, he said the court services officers already get
training, so it would depend on how much extra training they
would be given. He mentioned the police academy in Sitka,
Alaska, and said the department would be the best judge of who
would need to be sent there.
REPRESENTATIVE JOHANSEN questioned whether court services
officers would expect an increase in pay after completing
additional training.
MR. METCALF said that is an issue he thinks will not be brought
forth, because the court services officers have a classification
that would not change; they would not be doing the same duties
as police officers. In response to a follow-up question from
Representative Johansen, he said it is not the intent of PSEA to
respond to the increased training requirements under HB 351 by
asking for the classification level of court services officers
to be raised.
9:28:12 AM
REPRESENTATIVE P. WILSON said she would like to know the current
number of hours of training undergone by court services officers
and police officers and how much the hours for court services
officers would change under HB 351.
MR. METCALF offered his understanding that "the basic is 400
hours," but he said he could bring the exact numbers to the next
hearing.
9:28:56 AM
REPRESENTATIVE SEATON said the committee heard that termination
notices are sent to the council, but asked whether
administrative leave or other personnel actions are sent. He
said, "I'm unaware of why you would get to the level of where
you would need a suspension of a license when the employer puts
people on administrative leave for those kinds of reasons."
9:30:19 AM
MR. METCALF responded by offering his understanding that when a
person is terminating, the department sends over an F4 form,
which explains the reason for the termination. He said in
addition to getting notice from the department, there can be
complaints filed by the public about the conduct of the police
officer or APSE could read a story about the conduct of the
police officer or the police officer could report him/herself.
[HB 351 was held over.]