Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/21/2012 01:30 PM JUDICIARY


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01:30:02 PM Start
01:30:22 PM Confirmation Hearing(s): || Parole Board
01:37:00 PM Violent Crimes Compensation Board
01:41:47 PM Police Standards Council
01:51:42 PM Commission on Judicial Conduct
02:00:35 PM HB80
02:03:47 PM SB7
02:05:47 PM SB110
02:39:08 PM SB151
02:43:15 PM SB198
03:15:38 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Board Confirmations TELECONFERENCED
Police Standards Council:
Brad Reich, Kiana; Gustaf Sandahl, Kenai; Sheldon
Schmitt, Sitka; Jamie Sunderland, Unalaska;
Ronald Taylor, Anchorage
Commission on Judicial Conduct:
Robert Sheldon, Anchorage
State Board of Parole:
Michael Stark, Juneau
Violent Crimes Compensation Board:
Dr. Regina Chennault, Anchorage
+ Bills Previously Heard/Scheduled TELECONFERENCED
= HB 6 REMOVING A REGENT
Scheduled But Not Heard
= SB 200 EYEWITNESSES AND LINEUPS
Scheduled But Not Heard
= HB 80 SELF DEFENSE
Moved HB 80 Out of Committee
= SB 110 HUMAN TRAFFICKING/SEX OFFENSES
Moved CSSB 110(JUD) Out of Committee
= SB 151 FETAL ALCOHOL SPEC. DISORDER AS MITIGATOR
Moved CSSB 151(JUD) Out of Committee
= SB 210 CRIMES AGAINST CHILDREN
Scheduled But Not Heard
= SB 198 POLICE OFFICER PROTECTIONS/CERTIFICATION
Heard & Held
= SB 7 FELONS' RIGHT TO VOTE OR BE JURORS
Moved SB 7 Out of Committee
        SB 198-POLICE OFFICER PROTECTIONS/CERTIFICATION                                                                     
                                                                                                                                
2:43:15 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 198.                                                                             
                                                                                                                                
SENATOR BILL WIELECHOWSKI, sponsor of  SB 198, explained that the                                                               
bill provides increased protections  and basic due process rights                                                               
for  police officers  faced with  potential  revocation of  their                                                               
certificates. Revocations  would require a standard  of clear and                                                               
convincing evidence and follow  the Administrative Procedure Act.                                                               
The  bill also  allows  the Alaska  Police  Standards Council  to                                                               
suspend  rather  than revoke  a  certificate  when the  situation                                                               
warrants  the lesser  punishment.  Additional provisions  provide                                                               
increased  protection of  personal  information  and address  the                                                               
issue of polygraph tests. He  noted that the bill packet included                                                               
information   on   a  U.S.   Supreme   Court   decision  on   the                                                               
unreliability of polygraph tests.                                                                                               
                                                                                                                                
2:45:36 PM                                                                                                                  
DAVE SEXTON, Executive Director,  Alaska Police Standards Council                                                               
(APSC),  said the  mission statement  of  APSC is  "To produce  a                                                               
highly  trained and  positively motivated  professional officers,                                                               
capable  of meeting  contemporary  law  enforcement standards  of                                                               
performance." He  listed the core  services provided by  APSC and                                                               
said  SB  198  cuts  to  the   heart  of  several  of  these.  He                                                               
articulated three primary concerns.                                                                                             
                                                                                                                                
MR. SEXTON  said the first concern  is that SB 198  would inhibit                                                               
APSC's   ability   to   decertify  an   officer.   This   happens                                                               
infrequently,  just  six  times  in   the  last  five  years.  He                                                               
explained that  APSC staff  investigates reported  misconduct and                                                               
gives the  matter to the full  council if it is  appropriate. The                                                               
full council reviews the facts  before taking any action, and the                                                               
officer has the  option of appealing the APSC  action through the                                                               
court system.  Requiring the council  to give  substantial weight                                                               
to  prior  decisions  and  to  adopt  a  standard  of  clear  and                                                               
convincing  evidence singles  out  the  APSC and  holds  it to  a                                                               
different standard than  the 48 other boards  and commissions, he                                                               
said.                                                                                                                           
                                                                                                                                
MR.  SEXTON   said  the  second   area  of  concern   relates  to                                                               
restricting  the   use  of   polygraphs  during   a  disciplinary                                                               
proceeding.  Because   polygraphs  are   allowed  in   both  pre-                                                               
employment and  in investigative  situations, the  APSC questions                                                               
lowering that  standard. He  said he  was not  aware of  a single                                                               
decertification decision that hinged on a polygraph test.                                                                       
                                                                                                                                
MR.  SEXTON  said  the  third  area of  concern  relates  to  the                                                               
requirement to stop providing photographs  of officers in action.                                                               
The bill  would prohibit showing  pictures of police  officers in                                                               
positive situations  or hanging officers' pictures  in city hall.                                                               
This  strips  APSC  of  management  rights  to  run  progressive,                                                               
community-oriented   departments.  Finally,   he   asked  for   a                                                               
discussion about a longtime goal of  the APSC to remove the words                                                               
"full time" from  the definition of "police  officer." This would                                                               
bring  part  time,  seasonal, and  reserve  officers  under  APSC                                                               
oversight, and  protect cities and  jurisdictions that try  to do                                                               
the  right thing  by hiring  additional  help only  to find  that                                                               
their employees are operating outside regulations.                                                                              
                                                                                                                                
He concluded stating that APSC opposes much of SB 198.                                                                          
                                                                                                                                
2:53:12 PM                                                                                                                    
CHAIR FRENCH directed  attention to Section 7, page  3, lines 28-                                                               
29, and  asked if he thought  that a police officer  would object                                                               
to having  his or  her picture  hung in  city hall,  and withhold                                                               
authorization.                                                                                                                  
                                                                                                                                
MR. SEXTON replied  that was the concern. If  an officer withheld                                                               
his or  her authorization there  would not be a  complete picture                                                               
of the department.                                                                                                              
                                                                                                                                
CHAIR FRENCH  asked if he  really thought a police  officer would                                                               
object to having his or her picture displayed.                                                                                  
                                                                                                                                
MR. SEXTON questioned  why the provision was in the  bill if that                                                               
was not the purpose.                                                                                                            
                                                                                                                                
SENATOR  WIELECHOWSKI  asked if  he  would  object to  keeping  a                                                               
police officer's home address confidential.                                                                                     
                                                                                                                                
MR.  SEXTON said  APSC believes  that confidentiality  is already                                                               
covered, but did not objection to restating it in the bill.                                                                     
                                                                                                                                
2:54:40 PM                                                                                                                  
JOHN  SKIDMORE, Director,  Criminal Division,  Department of  Law                                                               
(DOL), reviewed  his professional credentials. Most  recently, he                                                               
was  in charge  of  special prosecutions  that included  conflict                                                               
cases dealing  with peace officers.  In his current  position, he                                                               
provides legal advice to the Alaska Police Standards Council.                                                                   
                                                                                                                                
MR. SKIDMORE  asked the committee  to reconsider  two provisions.                                                               
The first  concern is that  Section 3 would  bind the APSC  in an                                                               
employment  action  taken  with  an officer.  He  said  the  APSC                                                               
strives  to  set  minimum  standards across  the  state  for  all                                                               
officers to  meet initially and  after they become  officers. The                                                               
APSC  wants  standards of  conduct  to  be consistent,  but  this                                                               
provision requires the council to  give substantial weight to the                                                               
significance of prior decisions  by individual departments, their                                                               
lawyers,  and court  decisions. He  questioned why  the committee                                                               
would want to  bind the council's decision-making about  who is a                                                               
good, quality officer.                                                                                                          
                                                                                                                                
2:59:30 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  if  he believes  that  the  council                                                               
should give some  weight to prior arbitrations  and court appeals                                                               
that found in favor of an  officer if that officer is the subject                                                               
of a subsequent termination case.                                                                                               
                                                                                                                                
MR. SKIDMORE said  it is not a  problem if the intent  is for the                                                               
council  to consider  that something  occurred in  the past.  The                                                               
problem   is  that   the  legislative   intent  and   meaning  of                                                               
"substantial weight" is not clear.  If the council's decision has                                                               
to mirror  something that happened  in the past,  that interferes                                                               
with the  ability of the  council to have consistency  across the                                                               
state.  He  said he  gets  nervous  when  he  does not  know  the                                                               
legislative intent.                                                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI responded  that this  was establishing  the                                                               
legislative intent.                                                                                                             
                                                                                                                                
SENATOR PASKVAN  opined that nothing  in the language  would bind                                                               
the council.  To the contrary,  the council would simply  have to                                                               
explain  why the  appellate procedure  or administrative  hearing                                                               
officer decision is or is not significant.                                                                                      
                                                                                                                                
MR. SKIDMORE  said he was  comfortable with that reading.  He was                                                               
testifying  to  achieve the  legislative  intent  to ensure  that                                                               
someone could not  come back and argue the  opposite. The council                                                               
is capable of articulating a difference, he said.                                                                               
                                                                                                                                
SENATOR PASKVAN reiterated that he  did not perceive the language                                                               
to include a binding requirement.                                                                                               
                                                                                                                                
3:04:14 PM                                                                                                                    
MR.  SKIDMORE said  a second  concern relates  to Section  2 that                                                               
requires the  council to  use the  clear and  convincing evidence                                                               
standard to prove  the alleged conduct. He said  he believes that                                                               
people in public service and law  enforcement ought to be held to                                                               
a  higher standard,  because  of their  position  of trust.  This                                                               
society trusts  that people are  not going  to break the  law. If                                                               
they  do, society  trusts  that law  enforcement  will help  hold                                                               
those people accountable.  When someone breaks the  law, there is                                                               
a  breakdown in  some trust,  and when  it is  a law  enforcement                                                               
officer or someone in that  public service the violation of trust                                                               
is twofold. The  law was broken, and the person  who was supposed                                                               
to be upholding law is the  one who broke it. That is significant                                                               
and  very  offensive because  it  infringes  upon the  trust  and                                                               
credibility  that society  holds in  those institutions  that are                                                               
supposed to provide protection.                                                                                                 
                                                                                                                                
He said he  heard the sponsor say that some  organizations have a                                                               
higher standard  of evidence  than clear  and convincing,  but he                                                               
did not know which ones.                                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI relayed  that his  staff asked  Legislative                                                               
Research to  provide that information,  but his  understanding is                                                               
that  the  Alaska  Bar  Association  (ABA)  uses  the  clear  and                                                               
convincing  evidence  standard.  He  offered to  follow  up  with                                                               
clarifying information.                                                                                                         
                                                                                                                                
MR.  SKIDMORE  pointed out  that  the  ABA  was  not one  of  the                                                               
organizations listed under  AS 44.62.330-44.62.630, the governing                                                               
Act  set forth  in  the bill.  To increase  the  burden of  proof                                                               
indicates  that the  Legislature does  not trust  the credibility                                                               
and discretion  of the council. That  seems counterproductive, he                                                               
said.                                                                                                                           
                                                                                                                                
3:09:04 PM                                                                                                                    
JAKE  METCALFE,  Executive   Director,  Public  Safety  Employees                                                               
Association  (PSEA)  Local  803,  said he  represents  about  800                                                               
certified  and  non-certified  police  department  employees.  He                                                               
briefly  reviewed his  legal career  and said  he wanted  to talk                                                               
specifically about  the burden of  proof, consideration  of prior                                                               
arbitration decisions, and why PSEA supports the bill.                                                                          
                                                                                                                                
He described  three PSEA termination cases  where the arbitrators                                                               
ruled that  the employees should  get their jobs back.  The state                                                               
challenged each  ruling in  superior court and  lost. Two  of the                                                               
cases  went  to   the  state  supreme  court   that  upheld  both                                                               
decisions.  Two  of  the  cases  went  to  the  Police  Standards                                                               
Council,  and the  council revoked  one certificate.  The hearing                                                               
officer  challenged   the  decision  because  there   was  not  a                                                               
preponderance of proof.                                                                                                         
                                                                                                                                
MR. METCALFE said  that when the facts do not  change between the                                                               
arbitration hearing and council hearing,  it is reasonable to ask                                                               
the council to pay attention  to those decisions and then require                                                               
the same standard  that has been followed  through the employment                                                               
procedure.                                                                                                                      
                                                                                                                                
3:14:14 PM                                                                                                                    
SENATOR WIELECHOWSKI expressed a desire to hear different views                                                                 
on the display of photographs, and weighing the public trust                                                                    
against the employee's right to due process.                                                                                    
                                                                                                                                
CHAIR FRENCH suggested that dialogs could happen in offices and                                                                 
over the telephone. He held SB 198 in committee.                                                                                

Document Name Date/Time Subjects
HB 6 Version Y.pdf SJUD 3/21/2012 1:30:00 PM
HB 6
HB Explanations of Changes Version Y.pdf SJUD 3/21/2012 1:30:00 PM
HB 6
SB 151 version U.pdf SJUD 3/21/2012 1:30:00 PM
SB 151
SB 210 version D.pdf SJUD 3/21/2012 1:30:00 PM
SB 210
SB 200.ACLU Review.2012.03.16.pdf SJUD 3/21/2012 1:30:00 PM
SB 200
SB 210 Support Resolution.pdf SJUD 3/21/2012 1:30:00 PM
SB 210
SB 198 Letter of Support.pdf SJUD 3/21/2012 1:30:00 PM
SB 198
SB 200 Version I.pdf SJUD 3/21/2012 1:30:00 PM
SB 200
SB 200 Explanation of Changes Version I.pdf SJUD 3/21/2012 1:30:00 PM
SB 200
SB 110 version X.pdf SJUD 3/21/2012 1:30:00 PM
SB 110
SB 198 Support Letter APD Employees Association.pdf SJUD 3/21/2012 1:30:00 PM
SB 198
SB 198 Ver.E.PDF SJUD 3/21/2012 1:30:00 PM
SB 198