Legislature(1997 - 1998)
03/20/1997 01:40 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
MARCH 20, 1997
1:40 P.M.
TAPE HFC 97 - 64, Side 1, #000 - end.
TAPE HFC 97 - 64, Side 2, #000 - end.
TAPE HFC 97 - 65, Side 1, #000 - #465.
CALL TO ORDER
Co-Chair Gene Therriault called the House Finance Committee
meeting to order at 1:40 P.M.
PRESENT
Co-Chair Hanley Representative Kelly
Co-Chair Therriault Representative Kohring
Representative Davies Representative Martin
Representative Davis Representative Moses
Representative Foster Representative Grussendorf
Representative Mulder was not present for the meeting.
ALSO PRESENT
Margo Knuth, Assistant Attorney General, Governor's
Children's Cabinet, Department of Law; Kathy Tibbles, Social
Service Program Officer, Division of Family and Youth
Services, Department of Health and Social Services.
SUMMARY
HCR 4 Relating to records generated and maintained by
the Department of Health and Social Services.
CS HCR 4 (JUD) was reported out of Committee with
a "do pass" recommendation and with six new fiscal
notes by the Department of Health and Social
Services and a zero fiscal note by the Department
of Administration dated 1/31/97.
HB 6 An Act amending laws relating to the disclosure of
information relating to certain minors.
CS HB 6 (FIN) was reported out of Committee with a
"do pass" recommendation and with eight fiscal
impact notes by the Department of Health and
Social Services dated 2/21/97 and zero fiscal
notes by the Department of Administration dated
1/31/97, the Department of Law dated 1/31/97 and
the Department of Public Safety dated 1/31/97.
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HB 63 An Act extending the motor fuel tax exemption for
fuel sold for use in jet propulsion aircraft to
fuel used in those aircraft for flights that
continue from a foreign country; and providing for
an effective date.
HB 63 was not heard 3/20/97; it was HELD in
Committee for consideration at a latter date.
HOUSE BILL 6
"An Act amending laws relating to the disclosure of
information relating to certain minors."
Co-Chair Therriault noted for the record that at the
previous meeting, Representative Kelly had submitted
Amendment #4 which he would offer in replacement of
Amendments #1, #2 and #3. [Copy on file].
Representative Kelly MOVED to adopt Amendment #4. [Copy on
file]. Co-Chair Therriault OBJECTED for the purpose of
discussion.
Representative Kelly explained that Amendments #1, #2 and #3
had contained material which the Department of Law predicted
to be problematic. Amendment #4 creates language to address
those concerns. Amendment #4 would:
1. Give the Department the authority to
determine when to disclose records for minors
in the informal adjustment process who had
knowingly failed to comply with terms and
conditions of the adjustment process.
2. Removes burglary in the 2nd degree from the
list of crimes required to be disclosed and
makes burglary in the 1st degree contingent
on a previous conviction of that crime (in
the informal adjustment process).
3. Removes misconduct involving a controlled
substance in the 4th degree.
Co-Chair Therriault questioned if the Department had been
consulted regarding the directional changes recommended
through adoption of the amendment. Representative Kelly
replied that the Department had recommended the changes in
the first meeting that the bill was heard by the Committee.
Representative G. Davis asked again if Representative Kelly
had worked directly with the Department in constructing
Amendment #4. Representative Kelly stated that he had.
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Co-Chair Therriault WITHDREW his OBJECTION to adopting
Amendment #4. There being NO further OBJECTIONS, Amendment
clarification by the Department of Law regarding a portion
of the amendment.
Representative J. Davies MOVED to adopt Amendment #5. [Copy
on file]. Co-Chair Therriault OBJECTED for the purpose of
discussion.
Representative J. Davies explained that the amendment would
provide that the petition be filed to the modified list. It
would remove the discretion of the Department of Health and
Social Services (DHSS) on those youth who have mandatory
disclosure, moving them through the discretionary path.
Every case disclosed would be required to file a petition.
The disclosure would occur when the Court formally
adjudicated the minor as delinquent. The intent would be
that the minor could make improvements in their level of
maturity and get back to the "straight and narrow" path.
The informal adjustment path would be the place to deal with
that type of minor. He acknowledged the concern that exists
in making the file mandatory which would increase the number
of court cases.
In response to Co-Chair Hanley, Representative J. Davies
explained that the disclosure list would result in a
mandatory filing of the petition. Co-Chair Hanley inquired
if there would be less flexibility for the Department. He
suggested it would be optional for the Department to
disclose names going through the adjustment process.
Representative Kelly stated that was not correct. It would
be optional for the Department to disclose when the minor is
not in compliance with the terms of the adjustment.
Co-Chair Hanley pointed out under the scenario presented by
Representative Davies, youths would automatically go into
placement and then enter into the adjustment process. He
questioned if the Department would have the option, for
those youth in the adjustment process, to disclose the names
of those who had not complied with the terms of their
rehabilitation. Representative J. Davies commented that had
not been included, although, noted that he would not object
to adding that language.
A roll call vote was taken on the MOTION to adopt Amendment
IN FAVOR: Grussendorf, Martin, Moses, J. Davies
OPPOSED: Kelly, Kohring, G. Davis, Foster,
Therriault
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Representatives Hanley and Mulder were not present for the
vote.
The MOTION FAILED (4-5).
Representative J. Davies WITHDREW Amendment #6. [Copy on
file].
Representative Martin MOVED to adopt Amendment #7. [Copy on
file]. Co-Chair Therriault OBJECTED for the purpose of
discussion.
Representative Martin explained that his amendment would
address the concern of a youth being labeled "guilty" too
early in the process. He suggested that "disclosure" too
early could misuse the system; the amendment provides a time
certain.
Representative Kelly replied that the amendment would
interrupt the time frame already established. He added that
in Court, many cases "in the interest of justice" are not
heard at all. Of the number of referrals, there are few
which come out adjudicated. He believed that the option
would create an incentive for kids to always go through the
petition and adjustment process.
Representative Kelly emphasized that "crimes" are what is
most important in the proposed legislation. He stressed
that these are serious, bold and dangerous acts made by
unhealthy kids. The community needs to know that there is a
danger presented by these youths. The legislation is not a
consequence. He reiterated that his concern is public
safety and disagreed with the amendment.
Representative J. Davies proposed a "conceptual" amendment
to Amendment #7 which would grant the Department discretion
to disclose in those cases where filing the petition, that
the Department also recommended incarceration, but the Court
set the minor free prior to adjudication. Co-Chair
Therriault asked where that language would be inserted.
Representative J. Davies restated that it was a "conceptual"
amendment to be drafted by Legal Services and placed
appropriately.
(Tape Change HFC 97-64, Side 2).
Representative J. Davies pointed out that there are cases
where the Department recommends incarceration. In some
cases, the Court will release the minor into the custody of
the parent. It would be in those cases where the conceptual
amendment would be appropriate.
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The concept being in those cases, the Department would
recommend incarceration and the Court then would release or
over-rule that motion prior to the adjudication, and at that
time, the Department would be authorized, if it was in the
interest of "public safety" to disclose the name. In most
cases, disclosure would occur at adjudication, although, in
those cases where the Department had recommended
incarceration and the child had been released, disclosure
would be prior to adjudication.
Co-Chair Therriault OBJECTED to adoption of amendment to
Amendment #7.
A roll call vote was taken on the MOTION to incorporate the
conceptual amendment into Amendment #7.
IN FAVOR: Martin, Moses, J. Davies, Grussendorf
OPPOSED: Kelly, Kohring, G. Davis, Foster,
Hanley, Therriault
Representative Mulder was not present for the vote.
The MOTION FAILED (4-6).
A roll call vote was taken on the MOTION to adopt Amendment
IN FAVOR: Martin, Moses, J. Davies, Grussendorf
OPPOSED: Kohring, G. Davis, Foster, Kelly,
Therriault, Hanley
Representative Mulder was not present for the vote.
The MOTION FAILED (4-6).
Representative Martin MOVED to adopt Amendment #8. [Copy on
file]. Co-Chair Therriault OBJECTED for the purpose of
discussion.
Representative Martin spoke to Amendment #8 which would
allow the prosecuting attorney to have the opportunity to
evaluate the consideration of "public safety" and at the
same time guard the innocence and safety of the child. He
believed that the amendment could provide a "balance" to the
system.
Co-Chair Therriault voiced concern to Line 5 of the
amendment which indicates that the prosecuting attorney
"may" seek an order of the Court authorizing the disclosure.
He thought the language of the amendment would give the
petition process more opportunities for retention of
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confidentiality then it would during the adjustment process,
which would "weaken" the legislation.
MARGO KNUTH, ASSISTANT ATTORNEY GENERAL, GOVERNOR'S
CHILDREN'S CONFERENCE, DEPARTMENT OF LAW, responded that the
amendment would allow the prosecuting attorney to seek a
disclosure if the disclosure had been moved to the point of
adjudication. The amendment would provide an "escape"
clause which would allow the attorney to decide public
disclosure before the adjudication would be necessary
because of a public safety issue.
She continued, that could be filed by the attorney and by
the attorney's discretion, and then the Court would make a
finding that either it would be necessary for protecting the
public safety or that there may be other compelling reasons
besides public safety.
Representative Kelly noted that he opposed Amendment #8.
Representative J. Davies proposed an amendment to Amendment
suggested that would remove one of the optional points in
the process, although, would retain the ultimate option by
using "if" on Line 7. The language would make it mandatory
that the Court consider the issue.
Ms. Knuth pointed out that during the informal adjustment
side, the point of disclosure is reached when there is an
informal adjustment on that charge. If a mistake had been
made in the charge, there would be no disclosure on that
side. Whereas, on the petition side, by having the
disclosure the moment the petition is filed, there could be
the chance that a mistake had been made and that there was a
wrong charge. She reiterated that the point of the
legislation is to stipulate that there is a public safety
issue with some youth offenders.
Co-Chair Therriault reminded members that the proposed
intent was to address the more serious offenders. Ms. Knuth
pointed out that on the petition side, the petition must be
filed in order to hold the child in custody. You can not
have an offender in detention without a petition being
filed. There are circumstances when it would be appropriate
to hold the youth. There are hundreds of petitions which do
not go forward to the adjudication process. She explained
that part of it was a management technique of how to handle
some kids who are acting out.
Representative Kelly pointed out that the bill stipulates
that disclosure is at adjustment not "after" adjustment.
Ms. Knuth responded that adjustment follows a certain amount
of occurrences which have taken place. At the adjustment,
there is disclosure. When a petition is filed, the child is
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in detention and there has been an arrest, then the
investigation would be catching up with it. There is a
group for whom petitions have been filed, who have not had
the investigation to determine if the charge was correct.
Representative J. Davies pointed out that there are
situations at that time, in which the minor has not admitted
guilt. Representative Kelly emphasized that "disclosing"
information means that both guilt and innocence can be
disclosed, stressing that the outcome of the case will be
publicized if there is innocence, also. The police and
school will have access to that information. He warned that
the argument of disclosure hinges on the threat to public
safety.
Co-Chair Hanley inquired that if the amendment was adopted,
would the disclosure be eliminated when recommended by the
prosecuting attorney. Ms. Knuth replied that Amendment #8
assumes that Amendment #7 would have passed. Without
Amendment #7, Amendment #8 takes on a different form. Ms
Knuth was not clear if that form would make sense without
inclusion of the other amendment.
Co-Chair Hanley thought that the amendment proposed that the
Court make the decision if disclosure were to happen. Ms.
Knuth advised that the amendment's intent was to move
disclosure from the time of petition to the time of
adjudication. If there was a public safety issue, then
there would be the opportunity to disclose when that
situation arose.
Representative J. Davies emphasized that if a child was
charged, it would make the front page of the paper,
although, when found innocent, that information would be
buried somewhere within the paper. Representative
Grussendorf agreed that the headline of the charge would
"over-ride" the acknowledgement of innocence.
Representative Martin stressed the importance of protecting
the innocent youth.
Representative J. Davies withdrew the initial proposal to
amend Amendment #8. He then MOVED to offer a new amendment
to Amendment #8. Co-Chair Therriault pointed out that the
current structure of the amendment was technically flawed.
Representative J. Davies noted that his amendment would
address that flaw. The amendment would change Line 5,
deleting "may" and inserting "shall", and at Line 9, would
add a new sentence after disclosure:
"If the Court does not authorize disclosure, and
the minor is ultimately an adjudicated delinquent,
the disclosure shall occur at that time."
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Representative Martin noted that he would accept that as a
"friendly" amendment to Amendment #8. Co-Chair Hanley
proposed that the adjudication process of the delinquent
would need to address the serious crimes. Ms. Knuth advised
that it would be appropriate to add a phrase:
"Adjudicated as a delinquent based on minors
commission of an offense that is a felony set out
in (B) of this section".
Representative J. Davies proposed to adopt the amendment as
a conceptual amendment and have Legal Services draft the
appropriate language.
A roll call vote was taken on the MOTION to add the
conceptual language to Amendment #8.
IN FAVOR: Martin, Moses, J. Davies, G. Davis,
Grussendorf, Hanley
OPPOSED: Foster, Kelly, Kohring, Therriault
Representative Mulder was not present for the vote.
The MOTION PASSED (6-4).
A roll call vote was taken on the MOTION to adopt the
amended Amendment #8.
IN FAVOR: Moses, J. Davies, Grussendorf, Martin
OPPOSED: G. Davis, Foster, Kelly, Kohring,
Therriault, Hanley
Representative Mulder was not present for the vote.
The MOTION FAILED (4-6).
Representative J. Davies MOVED to adopt Amendment #9. [Copy
on file]. Co-Chair Therriault OBJECTED for the purpose of
discussion.
Co-Chair Therriault asked Ms. Knuth about a concern in
Amendment #4 regarding the use of "burglary". He asked at
what point the offenders name would be released when a
"rash" of burglaries occurred in a neighborhood and a minor
was charged with one. Would all the charges then be brought
forward at one time. Ms. Knuth replied that the language
needs more thought. Current language would not require
disclosure standings. She acknowledged that she understood
the intent of the sponsor, and that the language did not get
it "there".
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Representative J. Davies spoke to Amendment #9 which would
restrict disclosure to minors who are sixteen years of age
at the time of the offense. He suggested that would reduce
the number of disclosures.
(Tape Change HFC 97-65, Side 1).
Representative J. Davies reiterated that the amendment would
address the possibility of indiscretion and reaffirmation of
the youth and to protect from disclosure so that
reaffirmation could be successful.
A roll call vote was taken on the MOTION.
IN FAVOR: J. Davies, Grussendorf, Martin, Moses
OPPOSED: G. Davis, Foster, Kelly, Kohring,
Hanley, Therriault
Representative Mulder was not present for the vote.
The MOTION FAILED (4-6).
Representative Grussendorf MOVED to adopt Amendment #10.
[Copy on file]. Co-Chair Therriault OBJECTED for the
purpose of discussion.
Representative Grussendorf explained that the amendment
would remove the public disclosure on the portion of the
process where the offender is in the informal adjustment
period. If the probation officer decides not to adjudicate
and brings it into the adjustment period, it would be
obvious that the probation officer believed that there
exists a social redeeming value left in the youth. The type
of people in that category are usually those that have
committed non-violent crimes. He reiterated, it has been
found that most youths who go through the adjustment
process, do not enter into the judicial system again.
Representative Grussendorf concluded that to leave current
language in the bill would cause the family great
humiliation.
Representative Kelly responded that those persons who commit
a crime which is not a threat to public safety, would not
have their names disclosed. He suggested that the youth who
commit these crimes have often lost their sense of "shame".
He spoke to shame as a family value. He adamantly disagreed
that the average person was not capable of making
compassionate choices and forgiveness for the person that
had been shamed and had committed the crimes and made
retribution from their mistakes. Removing the names from
the adjustment process, would remove the amount of knowledge
that the community has to protect themselves. He objected
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to Amendment #10.
Representative Grussendorf pointed out that "sometimes" the
shame becomes a family thing that works against the accused
young person, slowing the speed of the healing process. He
urged that the bill would be stronger effect without the
section proposed for elimination in Amendment #10. The
Judicial Council has indicated support for elimination of
that language. Co-Chair Therriault informed members that
the adoption of Amendment #4 had added language to the
section recommended for deletion.
A roll call vote was taken on the MOTION to adopt Amendment
IN FAVOR: J. Davies, Grussendorf, Martin, Moses
OPPOSED: G. Davis, Foster, Kelly, Kohring,
Therriault, Hanley
Representative Mulder was not present for the vote.
The MOTION FAILED (4-6).
Representative J. Davies MOVED a change to Page 4, Line 26,
deleting "five" and inserting "two" years. Following a
momentary at-ease, Representative J. Davies WITHDREW the
proposed change and offered to work with the sponsor,
Representative Kelly regarding that concern.
Co-Chair Therriault referenced a letter dated March 18,
1997, from the Diane Worley, Department of Health and Social
Services, who addressed the loss of federal funds
anticipated with the passage of HB 6 and HCR 4. [Copy on
file]. The questions addressed include what percentage of
minors in foster care who are eligible for IV-E funds are
delinquents, how many delinquent youth in foster care would
be impacted by HB 6, and whether the restructuring proposed
by the Division of Family and Youth Services (DFYS) could be
altered to separate delinquents affected by HB 6 to further
minimize the loss of federal funds.
Co-Chair Therriault advised that the fiscal notes which
would accompany passage of HB 6 would be notes numbered 1-3
and 12-19.
KATHY TIBBLES, SOCIAL SERVICE PROGRAM OFFICER, DIVISION OF
FAMILY AND YOUTH SERVICES, DEPARTMENT OF HEALTH AND SOCIAL
SERVICES, explained that the letter submitted by the
Department was an attempt to provide a history and
description of a complex program. She pointed out that the
federal IV-E funds were based on children in out-of-home
care under the responsibility of a IV-E agency. Adjusted
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youth are not in out-of-home care and the Department would
not be receiving any reimbursement on foster care funds
because no funds would be expended on them. To separate the
youth who might be in out-of-home care, subject to
disclosure, from those youth who are in out-of-home care who
are not subject to disclosure, there would not be very many
children that are not subject to the disclosure, who the
Department would be receiving reimbursement. The IV-E
program is strictly related to the number of kids and the
percentage of IV-E eligible kids who are in out-of-home care
under the jurisdiction of IV-E agency.
Representative Kelly MOVED to report CS HB 6 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTIONS, it
was so ordered.
CS HB 6 (FIN) was reported out of Committee with a "do pass"
recommendation and with eight fiscal notes by the Department
of Health and Social Services dated 2/21/97 and zero fiscal
notes by the Department of Administration dated 1/31/97, the
Department of Law dated 1/31/97 and the Department of Public
Safety dated 1/31/97.
HOUSE CONCURRENT RESOLUTION 4
Relating to records generated and maintained by the
Department of Health and Social Services.
Representative Kelly MOVED to report CS HCR 4 (JUD) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CS HCR 4 (JUD) was reported out of Committee with a "do
pass" recommendation and with six fiscal notes by the
Department of Health and Social Services and a zero fiscal
note by the Department of Administration dated 1/31/97.
ADJOURNMENT
The meeting adjourned at 3:30 P.M.
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