Legislature(1995 - 1996)
04/10/1995 01:39 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
April 10, 1995
1:30 P.M.
TAPE HFC 95-80, Side 1, #000 - end.
TAPE HFC 95-80, Side 2, #000 - end.
TAPE HFC 95-81, Side 1, #000 - 650.
CALL TO ORDER
Co-Chair Mark Hanley called the House Finance Committee
meeting to order at 1:39 p.m.
PRESENT
Co-Chair Hanley Representative Martin
Co-Chair Foster Representative Mulder
Representative Brown Representative Navarre
Representative Grussendorf Representative Parnell
Representative Kelly Representative Therriault
Representative Kohring
ALSO PRESENT
Representative Con Bunde; Jerry Luckhaupt, Legislative Legal
Counsel, Legislative Affairs Agency; Margot Knuth, Criminal
Division, Department of Law; Paul Grant, Alaska Civil
Liberty Union; Rod Mourant, Staff, Representative Kott;
Darrel Johnson, Department of Health & Social Services;
Catherine Reardon, Director, Division of Occupational
Licensing; Helen Mehrkens, Department of Education.
SUMMARY
HB 28 An Act relating to the possession of weapons
within the grounds of or on the parking lot of
preschools, elementary, junior high, and secondary
schools or while participating in a
school-sponsored event; requiring the expulsion or
suspension of students possessing deadly weapons
on school grounds; and relating to school lockers
and other containers provided in a public or
private school by the school or the school
district.
CSHB 28 (FIN) was reported out of Committee with
"no recommendation" and with two zero fiscal notes
by the Department of Education and Department of
Public Safety, dated 2/22/95.
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HB 233 An Act extending until 1999 the termination date
of the Board of Clinical Social Work Examiners,
Board of Marital and Family Therapy, State Medical
Board, Board of Nursing, Board of Nursing Home
Administrators, Board of Psychologist and
Psychological Associate Examiners, Real Estate
Commission, and Hazardous Substance Spill
Technology Review Council; extending until 1996
the termination date of the Board of Marine Pilots
and the Correctional Industries Commission; and
providing for an effective date.
HB 233 was HELD in Committee for further
discussion.
HB 269 An Act relating to credits against certain taxes
for contributions to certain public educational
radio and television networks and stations and to
endowments for public educational radio and
television networks; and providing for an
effective date.
HB 269 was rescheduled.
HOUSE BILL NO. 28
"An Act relating to the possession of weapons within
the grounds of or on the parking lot of preschools,
elementary, junior high, and secondary schools or while
participating in a school-sponsored event; requiring
the expulsion or suspension of students possessing
deadly weapons on school grounds; and relating to
school lockers and other containers provided in a
public or private school by the school or the school
district."
REPRESENTATIVE CON BUNDE, sponsor HB 28, testified in
support of the legislation. He observed that the Federal
Gun Free Schools Act was passed by Congress in response to
increasing violence and guns in schools. This Act requires
school systems to implement programs for the control of guns
and weapons before receiving federal funding. He noted that
HB 28 prohibits the possession of deadly weapons and
defensive weapons on school grounds or in parking lots
adjacent to public or private schools. A person can obtain
permission to carry a prohibited weapon to use in an
existing gun range. The legislation provides for a one year
expulsion or suspension of a student that possesses a weapon
on school grounds. Expulsion or suspension of disabled or
special education students may be modified. The legislation
requires an annual statistical report be submitted by the
Department of Education regarding the number of students
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expelled and the types of weapons involved. He observed
that the legislation also allows locker searches in order to
determine compliance with school regulations and state laws.
Schools must display, in a prominent location, notification
of the search policy.
Representative Bunde emphasized that Alaska must comply with
the Federal Gun Free Schools Act or lose federal dollars.
He stressed that schools cannot function properly when
students and teachers are concerned about their safety.
In response to a question by Representative Mulder,
Representative Bunde clarified that probable cause would
remain in effect in regards to vehicle searches on school
property. If a student is caught with a gun they would have
to be expelled.
Representative Brown provided members with Amendment 1
(Attachment 1). Amendment 1 requires that each school
district adopt a policy providing for the "identification of
procedures and conditions for early reinstatement of
students suspended or expelled." She emphasized that
federal law allows the reinstatement of students if there is
a policy in place. Representative Bunde expressed concern
that exemptions do not nullify the penalty.
Representative Martin observed that ordinary citizens carry
weapons in the back of pick up trucks in relation to hunting
activities. He questioned the zero fiscal note accompanying
the legislation.
Representative Bunde expressed support for the use of
weapons in connection with hunting or personal protection.
He emphasized that guns could be carried in the trunk. Guns
located in racks behind windows in pickup trucks would have
to be removed. He stated that the Department of Education
has indicated that there will be no fiscal impact as a
result of the legislation.
Representative Brown asked if there is a definition of
"defensive weapon." Representative Bunde noted that
"defensive weapon" is defined in AS 11.81.900(b)(16).
In response to a question by Representative Brown,
Representative Bunde clarified that probable cause would not
apply to the search of school lockers. He emphasized that
the expectation of privacy is lower on public property.
Specific groups or certain areas of the school could not be
singled out.
Representative Brown questioned whether the sponsor would
support language requiring reasonable suspicion before
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allowing a search. Representative Bunde stated that he
would not support the language. He stressed that research
indicated that the removal of all school lockers reduced the
amount of violence or theft in schools. He added that
lockers are not private property and are often shared.
Representative Navarre asked if a distinction could be made
between preschool, elementary, junior high and secondary
school students. He also referred to the drafting style of
section 6.
MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW stated
that section 6 was properly drafted.
Representative Martin reiterated concerns in regards to the
inability to leave guns in truck racks.
Co-Chair Hanley pointed out that current law prohibits guns
on school grounds. He noted that the legislation adds
mandatory expulsion of students that defy the prohibition.
Representative Bunde agreed and added that the legislation
would also increase the sanction for possession of
unauthorized weapons by persons over the age of 21.
Representative Brown asked for an explanation of changes
made in sections 1 and 3. Ms. Knuth noted that sections 1 -
3 raise the penalty for possessing weapons on school
grounds from a class B to a Class A misdemeanor. She noted
that a class B misdemeanor is the lowest class crime in the
state of Alaska. There are more options for sanctions under
a class A misdemeanor.
Ms. Knuth noted that the only provision required by the
federal mandate is on page 3, lines 4 - 7. She observed
that this section only refers to handguns. Only the
possession of handguns would require the expulsion of
students under this provision.
Representative Grussendorf asserted that the legislation has
grown beyond what was requested by the Department of
Education. He suggested that section 6 would fulfill the
desires of school districts. Representative Bunde replied
that the schools want the ability to search school lockers.
HELEN MEHRKENS, PROGRAM MANAGER, DEPARTMENT OF EDUCATION
discussed federal requirements. She noted that federal law
requires that schools have a policy that will expel students
who bring a firearm to school or on school property for not
less than one calendar year, assure that schools are in
compliance, submit a one page report, and refer the student
to the law enforcement or juvenile delinquency system. She
noted that schools are not as safe as they once were.
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Representative Martin expressed concern that the student's
right to an education be fulfilled during their expulsion.
Representative Bunde noted that students can be educated
outside of the public school. He stressed that the safety
and rights of the majority should be supported.
Ms. Mehrkens assured, Representative Martin, that the
Department anticipates that the federal reporting
requirements will be a simple 3 to 4 hour process.
In response to a question by Representative Kelly,
Representative Bunde noted that federal law requires an
exemption for special education students. He acknowledged
that students with behavior problems would be special
education students. Ms. Mehrkens noted that special
eduction students cannot be expelled if they brought the
weapon to school in connection with their disability. If
the weapon was not brought in connection to their disability
the student would be expelled. The school would be required
to provide expelled special education students with
educational services in another setting.
Representative Brown referred to page 3, line 29 and page 2,
line 19. She questioned if page 2, line 19 needed to have
comas around "other than a loaded firearm" to clarify that
the deadly weapon would have to be in the vehicle's trunk or
a closed container in the vehicle. She observed that the
section provides an exception for adults over 21 to carry
deadly weapons in their vehicle's trunk.
(Tape Change, HFC 95-80, Side 2)
Discussion ensued in regards to the use of comas around
"other than a loaded firearm. Ms. Knuth concluded that it
would be clearer if the comas were placed.
Representative Brown asked why the definition was expanded
to include "deadly weapon." Ms. Knuth noted that current
law does not allow loaded firearms under any circumstance
including in the trunk of a car or a closed container. She
agreed that the bill expands from firearms to deadly weapons
those weapons that may be possessed in the trunk of a motor
vehicle or a closed container in the motor vehicle. She
stated that the provision would permit the possession of a
filet knife which was contained in the trunk of a car by a
person over 21 years of age.
Members continued to discuss the drafting of page 2, line
19. Ms. Knuth noted that the former law only restricted the
possession of firearms. The possession of deadly weapons is
a new crime. The exception for deadly weapons is being made
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on page 2, line 19, to allow possession in a closed trunk or
closed container. Students would not be allowed to have
knives or other deadly weapons. She clarified that federal
law does not include deadly weapons.
Ms. Mehrkens stated that most schools already use the
broader Alaska definition of weapon. She noted that 25
students have been suspended for weapon violations in the
largest school district.
Ms. Knuth noted that Section 6 (a)(1) is required by the
federal mandate. Section (a)(2), suspension of 30 days for
the possession of a deadly weapon is optional.
Representative Grussendorf questioned if the legislation
could be reduced to only include Sections 5 and 6. Ms.
Knuth stated that schools would like to expel students for
the possession of deadly weapons in addition to firearms.
She added that the legislation also changes the penalty.
Representative Bunde noted that raising the penalty was his
original motivation for introducing the legislation. The
federal requirement came later.
JERRY LUCKHAUPT, LEGISLATIVE LEGAL COUNSEL, LEGISLATIVE
AFFAIRS AGENCY observed that the intent of page 2, line 19,
is to allow an adult to possess a deadly weapon in the trunk
of a vehicle. He noted that the deadly weapon cannot be a
loaded firearm. He observed that the legislation would
require that a weapon be placed in a trunk or a closed
container in the vehicle. He conceded that the addition of
comas around "other than a loaded firearm" would clarify the
language. He emphasized that it would not be a crime to
possess a deadly weapon in the trunk, as long as it is not a
loaded firearm.
Representative Brown clarified that there is no requirement
that the container of trunk be locked.
In response to a question by Representative Martin, Mr.
Luckhaupt stressed that the federal requirement does not
address sanctions against possession of firearms by persons
who are not students. The penalty for possession by persons
who are not students is being increased.
Representative Bunde stressed that "out of sight, out of
mind" applies to the gun that is in a trunk or container in
a vehicle.
PAUL GRANT, ALASKA CIVIL LIBERTIES UNION stated that they
are in general support of HB 28. He expressed concern that
the current language does not set up standards for the
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exercise of discretion in regards to locker searches. He
stated that there should be a reasonable suspicion
requirement added to the locker search provision. Mr. Grant
provided members with a copy of his written testimony
(Attachment 2). He recommended that section 5 be deleted.
In response to a question by Representative Martin, Mr.
Grant clarified that probable cause is not needed to search
a school locker. He maintained that the constitution
requires a reasonable suspicion that there has been a
violation of school policy.
Representative Therriault suggested that posting a notice of
the school's locker search policy would tell the student
that they cannot expect confidentiality. Mr. Grant argued
that constitutional rights of privacy ought not to be
determined by written notices. He supported the notice
requirement but argued that it did not justify a search.
Mr. Grant noted that the Alaska Supreme Court has not ruled
on what constitutes "reasonable suspicion". He observed
that there has not been a warrant requirement in regards to
school searches. He noted that the Court has generally
ruled that there should be some greater standard than random
searches by school administrators. He argued that the state
of Alaska has, because of the specific right to privacy in
the Alaska Constitution, afforded some protection from
search and seizure that other jurisdictions have not
provided.
Representative Parnell agreed that there has not been a
ruling by the Alaska Supreme Court. He questioned if there
is a legitimate expectation of privacy in school lockers.
Representative Bunde provided members with statistics of
expulsions in Alaska school districts (Attachment 3).
Representative Martin reiterated concerns that there would
be fiscal impact as a result of the legislation.
Representative Bunde repeated that there is only a reporting
requirement. He emphasized that parents will have to be
responsible for the education of students excluded from the
school system. He emphasized that positive behavior be
rewarded.
Representative Brown MOVED to adopt Amendment 1. She spoke
in support of Amendment 1. Amendment 1 requires that each
school district adopt a policy providing for the
"identification of procedures and conditions for early
reinstatement of students suspended or expelled." She
stressed that the amendment is supported by the Department
of Education.
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Ms. Mehrkens stated that school districts appear to already
have procedures in place to allow students on a case by case
basis to come back into the school system.
Representative Martin observed that the legislation would
require a one year expulsion. Co-Chair Hanley stated that
the administrative officer may on a case by case basis
modify or reduce the suspension.
(Tape Change, HFC 95-81, Side 1)
Representative Brown argued that Amendment 1 would make the
decision to reinstate students less arbitrary. She stressed
that schools would set guidelines for making case by case
decisions.
Representative Parnell suggested that it would be hard to
assess expulsions on a case by case basis if procedures
exist.
Ms. Mehrkens gave examples of procedures by school
districts. She noted that the appeal process is generally
used. She stated that federal law is clear that the case by
case exemption needs to be addressed on an individual
student basis. General policy cannot be used for all
students. Representative Bunde suggested that guidelines
would circumvent the case by case review.
Ms. Knuth asserted that expulsion without alternative
education opportunities will result in a fiscal impact to
state criminal and social programs. She noted that the
Federal Gun Free Schools Act authorizes states to leave it
to the schools to come up with alternative placements. She
noted that students are expelled for a variety of other
reasons which do not have a comparable state requirement for
alternative placement.
Ms. Knuth stated that it makes sense to ask schools to
develop procedures for reinstatement. She suggested that
provisions could set out time frame lines for when things
occur, such as hearings.
Representative Bunde noted that the legislation requires due
process proceedings.
A roll call vote was taken on the MOTION to adopt Amendment
1.
IN FAVOR: Therriault, Brown, Kohring, Martin, Navarre,
Foster
OPPOSED: Mulder, Parnell, Hanley
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The MOTION PASSED (6-3).
Representative Brown provided members with Amendment 2
(Attachment 4). She noted that Amendment 2 would add a
reasonable suspicion standard to locker searches. She
referred to a Supreme Court ruling, involving the state of
New Jersey, that stated that by general rule a search of a
student by school officials is permissible if it does not go
beyond the scope or the circumstances justifying it and if
the search is based on reasonable grounds for suspecting
that it will uncover evidence that the student has violated
school rules.
Ms. Knuth stated that the Court ruled that the 4th Amendment
does apply to searches conducted by school officials. She
noted that the search in question was conducted on the
student's purse. She stressed that because school lockers
are the property of the school and students don't have to
use them, the 4th Amendment does not apply. She maintained
that the legislation is a codification of what the
constitutional law requires. She emphasized that the search
cannot be more invasive or intrusive than what is necessary
to find the type of contraband that schools are allowed to
search for in lockers. She spoke in support of the second
part of Amendment 2: "A search or examination under this
section may not be more intrusive than reasonably necessary
to meet the objectives of the search."
Representative Brown MOVED to divide the question. She
MOVED to adopt Amendment 2B, page 4, line 16, "A search or
examination under this section may not be more intrusive
than reasonably necessary to meet the objectives of the
search."
Ms. Knuth stated that Amendment 2B would clarify that a
wallet within the locker, or another small container in
which a gun would not fit, could not be searched. She
acknowledged that a school could search all the lockers.
Representative Bunde noted that students are notified in
regards to the school's search policy at the time they
register.
There being NO OBJECTION, Amendment 2B was adopted.
Representative Brown MOVED to adopt Amendment 2A, delete "to
determine compliance with" and insert "if the person
conducting the search is acting under reasonable suspicion
that the search will provide evidence of a past or present
violation of."
A roll call vote was taken on the MOTION.
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IN FAVOR: Brown, Kohring, Navarre, Foster
OPPOSED: Martin, Mulder, Parnell, Therriault, Hanley
Representatives Grussendorf and Kelly were absent from the
vote.
The MOTION FAILED (4-5).
Representative Brown MOVED to insert comas around "other
than a loaded firearm" on page 2, line 19. There being NO
OBJECTION, it was so ordered.
Representative Mulder MOVED to report CSHB 28 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes.
CSHB 28 (FIN) was reported out of Committee with "no
recommendation" and with two zero fiscal notes by the
Department of Education and Department of Public Safety,
dated 2/22/95.
HOUSE BILL NO. 233
"An Act extending until 1999 the termination date of
the Board of Clinical Social Work Examiners, Board of
Marital and Family Therapy, State Medical Board, Board
of Nursing, Board of Nursing Home Administrators, Board
of Psychologist and Psychological Associate Examiners,
Real Estate Commission, and Hazardous Substance Spill
Technology Review Council; extending until 1996 the
termination date of the Board of Marine Pilots and the
Correctional Industries Commission; and providing for
an effective date."
CATHERINE REARDON, DIRECTOR, DIVISION OF OCCUPATIONAL
LICENSING spoke in support of HB 233. She noted that the
Division has jurisdiction over seven of the eleven boards
and commissions contained in the legislation. She pointed
out that the fiscal note reflects the costs of the boards
and commissions and the licensing activities under them.
The fiscal note does not reflect an increase of cost. She
emphasized that the licensing fees are directed by statute
to cover the costs of licensing activities. When costs
increase the fees are adjusted upward. Program receipts and
expenditures are balanced. She stressed that the sunset
audits recommended longer extensions than those included in
the legislation. She noted that the Division of Legislative
Budget and Audit suggested that longer extensions would save
auditing money.
Representative Grussendorf noted that the Division of
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Legislative Budget and Audit's recommendation for extensions
to the year 2004 was only accepted for the Real Estate
Commission. The other boards and commissions were only
extended to 1994. Ms. Reardon noted that the House Labor
and Commerce Committee changed the extension date of the
Real Estate Commission.
DARREL JOHNSON, DIVISION OF MENTAL HEALTH AND DEVELOPMENTAL
DISABILITIES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES spoke
in support of HB 233. He testified in support of the
Special Eduction Service Agencies. He stressed that sunset
of the Special Education Service Agency would impair
families' ability to gain the support they need for special
needs children and young adults.
Representative Therriault provided members with Amendment 1
(Attachment 5). The amendment would eliminate the extension
of the Hazardous Substance Spill Technology Review Council.
Representative Therriault MOVED to adopt Amendment 1. He
stated that the amendment reflects action taken in the
operating budget.
Representative Brown referred to a letter by Gary Thomas,
Director, Prince William Sound Science Center (copy on
file). Mr. Thomas stated that projects sponsored in part by
the Council have had joint sponsorship by industry, federal
and state agencies, public groups, and universities. She
spoke in support of extending the Council.
Representative Therriault clarified that the Council was
budgeted at $100.0 thousand dollars in FY 95. The Council
was funded at $420.0 thousand dollars in FY 93.
Representative Brown questioned the position of the
Department of Environmental Conservation.
Representative Therriault noted that it was the intent of
the House Finance Subcommittee on the Department of
Environmental Conservation to allow the sunset to go ahead.
A roll call vote was taken on the MOTION to adopt Amendment
1.
IN FAVOR: Kelly, Kohring, Martin, Mulder, Therriault, Hanley
OPPOSED: Brown, Grussendorf, Navarre
Representatives Parnell and Foster were absent from the
vote.
The MOTION PASSED (6-3).
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Representative Brown asked why the Board of Storage Tank
Assistance was recommended for extension.
ROD MOURANT, STAFF, REPRESENTATIVE KOTT noted that the
legislation was based on recommendations by the Office of
the Governor and the Division of Legislative Budget and
Audit. He stated that some boards were added by the House
Labor and Commerce Committee due to administrative
oversight.
Representative Brown asked the basis for distinction of
sunset dates. Mr. Mourant could not answer. Representative
Grussendorf noted that Mr. Mourant testified that the
legislation was based on recommendations by the Division of
Legislative Budget and Audit. However, those
recommendations were only accepted for the Real Estate
Board.
Representative Martin noted that the Division of Legislative
Budget and Audit tried to decrease the annual audit of
boards and commissions by extending some organizations to
five or ten years.
Representative Brown noted that the Board of Storage Tank
Assistance was not contained in the audit.
HB 233 was HELD in Committee for further discussion.
ADJOURNMENT
The meeting adjourned at 3:50 p.m.
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