Legislature(1997 - 1998)

05/05/1998 07:30 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
             HOUSE FINANCE COMMITTEE                                           
     May 5, 1998                                                               
                          7:30 P.M.                                            
                                                                               
TAPE HFC 98 - 156, Side 1.                                                     
TAPE HFC 98 - 156, Side 2.                                                     
TAPE HFC 98 - 157, Side 1.                                                     
                                                                               
CALL TO ORDER                                                                  
                                                                               
Co-Chair Therriault called the House Finance Committee                         
meeting to order at 7:30 P.M.                                                  
                                                                               
PRESENT                                                                        
                                                                               
Co-Chair Therriault   Representative Kohring                                   
Representative J. Davies  Representative Martin                                
Representative G. Davis  Representative Kelly                                  
Representative Grussendorf Representative Mulder                               
                                                                               
Representatives Hanley, Foster and Moses were present for                      
the meeting.                                                                   
                                                                               
ALSO PRESENT                                                                   
                                                                               
Representative Ethan Berkowitz; James Baldwin, Assistant                       
Attorney General, Department of Law; Dan Spencer, Chief                        
Budget Analyst, Office of Management and Budget, Office of                     
the Governor; Kristie Tibbles, Staff, Senator Drue Pearce;                     
Jayne Andreen, Council on Domestic Violence and Sexual                         
Assault, Juneau; Marilyn Wilson, Staff, Senator Bert Sharp;                    
Bruce Richards, Program Coordinator, Office of the                             
Commissioner, Department of Corrections.                                       
                                                                               
TESTIFIED VIA TELECONFERENCE                                                   
                                                                               
Phyllis Johnson, Alaska Railroad Corporation, Anchorage;                       
Susie Barnett, Staff, Select Committee on Legislative                          
Ethics, Anchorage.                                                             
                                                                               
SUMMARY                                                                        
                                                                               
SB 105 An Act relating to legislative ethics; relating                         
to the filing of disclosures by certain                                        
legislative employees and officials; and                                       
providing for an effective date.                                               
                                                                               
HCS CS SB 105 (FIN) was reported out of Committee                              
with a "no recommendation" and with fiscal notes                               
by the Department of Law dated 4/23/98, the                                    
Department of Administration dated 4/23/98 and                                 
the Select Committee on Legislative Ethics dated                               
4/23/98.                                                                       
                                                                               
SB 323 An Act relating to sexual offenses, to those who                        
commit sexual offenses, and to registration of                                 
sex offenders; amending Rule 6(r)(2), Alaska                                   
Rules of Criminal Procedure; and providing for an                              
effective date.                                                                
                                                                               
 SB 323 was HELD in Committee for further                                      
consideration.                                                                 
                                                                               
SB 347 An Act relating to the increase of an                                   
appropriation item based on additional federal or                              
other program receipts.                                                        
                                                                               
 SB 347 was HELD in Committee for further                                      
consideration.                                                                 
                                                                               
SB 356 An Act relating to treatment under legislative                          
standards of conduct of campaign contributions to                              
legislators during a legislative session; and                                  
providing for an effective date.                                               
                                                                               
 SB 356 was HELD in Committee for further                                      
consideration.                                                                 
                                                                               
SCR 11 Creating the Long-Term Care Task Force.                                 
                                                                               
CSSCR 11(FIN) was reported out of Committee with                               
a "no recommendation" and with fiscal notes by                                 
the Department of Commerce and Economic                                        
Development dated 3/4/98, the Office of the                                    
Governor dated 3/4/98 and the Legislative Finance                              
Division dated 3/4/98.                                                         
                                                                               
SENATE BILL NO. 105                                                            
                                                                               
"An Act relating to legislative ethics; relating to                            
the filing of disclosures by certain legislative                               
employees and officials; and providing for an                                  
effective date."                                                               
                                                                               
PHYLLIS JOHNSON, (TESTIFIED VIA TELECONFERENCE), ALASKA                        
RAILROAD CORPORATION, ANCHORAGE, addressed comments to the                     
current version of the legislation before the Committee.                       
She noted that the Alaska Railroad agrees that they need to                    
improve the internal code of ethics, specifically in                           
regards to the enforcement and follow up on perceived                          
violations.                                                                    
                                                                               
She advised that the Alaska Railroad Corporation does not                      
object to being included in the legislation, although, the                     
Railroad is concerned with the State Personnel Board as the                    
final decision arbitrator.  She stressed that railroad                         
personnel are not State employees and should not be treated                    
as such.                                                                       
                                                                               
Representative Martin pointed out that the proposed                            
legislation provides for a compromise as called for in the                     
Constitution specified in the Executive Budget Act.                            
                                                                               
SUSIE BARNETT, (TESTIFIED VIA TELECONFERENCE), STAFF,                          
SELECT COMMITTEE ON LEGISLATIVE ETHICS, ANCHORAGE, remarked                    
that the Select Committee had not had an opportunity to                        
review the current version of the legislation before the                       
Committee.  She noted that there will be sections of the                       
bill which the Finance Committee will not like.  Ms.                           
Barnett emphasized that there has been tremendous                              
compromise during the process, and that Sections #13 and                       
                                                                               
Representative Martin questioned if there had been                             
consideration of including a "severability" clause.                            
                                                                               
JAMES BALDWIN, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF                       
LAW, explained that the statutory severability clause                          
creates a slight presumption of severability.  An express                      
severability clause would raise that presumption higher in                     
which a court would look at to determine the true intention                    
of the Legislature for those provisions to be tied                             
together.                                                                      
                                                                               
Mr. Baldwin advised that the American Civil Liberties Union                    
(ACLU) lawsuit, contesting the campaign finance provisions,                    
are similar to the ones included the proposed legislation.                     
He suggested that the bill would have a difficult time                         
defending those provisions.                                                    
                                                                               
Representative Martin asked if the State would be "safe" by                    
including a severability clause at the bottom of the                           
legislation.  Mr. Baldwin suggested that could not hurt.                       
He recommended repeating the language contained in AS                          
0.110.100(b), which would slightly raise the presumption of                    
severability.  Representative Mulder recommended that such                     
a change be made on the House floor in order to expediate                      
the process of the bill moving from Committee.                                 
                                                                               
Representative Mulder MOVED to report HCS CSSB 105 (FIN)                       
out of Committee with individual recommendations and with                      
the accompanying fiscal notes.  There being NO OBJECTION,                      
it was so ordered.                                                             
                                                                               
HCS CSSB 105 (FIN) was reported out of Committee with "no                      
recommendation" and with a fiscal note by the Department of                    
Law dated 4/23/98 and zero fiscal notes by the House                           
Finance Committee, the Department of Administration dated                      
4/23/98, and the Select Committee on Legislative Ethics                        
dated 4/23/98.                                                                 
SENATE BILL NO. 347                                                            
                                                                               
"An Act relating to the increase of an appropriation                           
item based on additional federal or other program                              
receipts."                                                                     
                                                                               
DAN SPENCER, CHIEF BUDGET ANALYST, OFFICE OF MANAGEMENT AND                    
BUDGET (OMB), OFFICE OF THE GOVERNOR, explained that SB 347                    
would change the "45 day rule" to a six month rule                             
depending on the Legislative Budget and Audit Committee                        
(LBA) approving the program.  According to current statute,                    
from the time that OMB sends an appropriation to LBA, there                    
is 45 days for the Committee to review it for expenditures.                    
Mr. Spencer emphasized that the current system works well.                     
                                                                               
Mr. Spencer made reference to historical cases in which                        
that created a problem.                                                        
                                                                               
1. Sitka Airport;                                                              
2. Department of Fish & Game test fisheries                                    
receipts;                                                                      
3. Alaska Seafood Marketing Institute (ASMI)                                   
expenditures;                                                                  
4. Payment of low taxes; and the                                               
5. Homer spit timing issue.                                                    
                                                                               
Mr. Spencer referenced the memo from Mike Greany,                              
Legislative Fiscal Analyst, in regards to the Legislature                      
becoming involved with the option to change the RPL "45 Day                    
Rule".  He noted that the memo states that by moving a bill                    
midway through the Legislative Session, would give the                         
Legislature the authority to "disappropriate".  Mr. Spencer                    
reiterated that the legislation would not be advantageous                      
to the State.                                                                  
                                                                               
Representative Martin interjected that the legislation                         
would provide a safety value for the Legislature to have                       
better control of the total expenditures throughout any                        
year.  Mr. Spencer pointed out that there are no general                       
fund program receipts, as the Legislature has restricted it                    
to federal receipts, designated receipts and EVOCS                             
receipts.  Last year in Conference Committee, the EVOCS                        
receipts were inadvertently left out of the House version                      
and were then added back in the Senate version to                              
accommodate the situation.  The Administration has stressed                    
that nothing contrary to the Legislature's intent is                           
occuring.                                                                      
                                                                               
Representative Martin spoke to the controversy with the                        
EVOC receipts in which $50 to $100 million dollars existed                     
outside the Legislative Session for the Legislative Budget                     
and Audit Committee to spend.  He pointed out that with                        
passage of the proposed legislation, LBA would be required                     
to come before the full legislature in order to fill                           
funding needs.                                                                 
                                                                               
Mr. Spencer stated that the debate preceded the approval of                    
the appropriation.  The Legislature knew that the                              
appropriation was happening with regards to the EVOC                           
concern.  Representative J. Davies added that an agreement                     
was made between the federal government, the Legislature                       
and the Administration regarding how the Legislature should                    
be involved and the Legislature agreed that the legislative                    
involvement should be through the LBA Committee.                               
Representative J. Davies agreed that some of those                             
appropriations have been controversial, but that the                           
process should not be discarded.                                               
                                                                               
Representative J. Davies commented that LBA deals with less                    
than 200 situations per year, and that less than 1% go                         
through the proposed process.  He pointed out that the                         
process does work and that LBA's oversight has caused the                      
Administration to change course on a routine basis.                            
                                                                               
Representative G. Davis agreed that there did not appear to                    
be a problem with LBA unauthorized spending.  He added that                    
if there were a problem, who ever created it would end up                      
paying if it were unacceptable to the Legislature.                             
                                                                               
(Tape Change HFC 98-156, Side 2).                                              
                                                                               
JAMES BALDWIN, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF                       
LAW, recounted the history of Section AS 37.07.080(h).                         
This section comes from a dispute that Governor Hammond had                    
with the Legislature over how to handle the spending of                        
anticipated federal receipts and other custodial and trust                     
receipts which the Governor believed was not part of the                       
State Treasury.                                                                
                                                                               
In 1975, the Legislature passed a statute which required                       
LBA approval for interim-type spending decisions.  A long                      
discussion began between the Governor and the Legislature                      
which culminated in a lawsuit, Kelley versus Hammond.  That                    
case went before Judge Stewart to address the issues in                        
dispute:                                                                       
                                                                               
1. Whether federal receipts had to be appropriated                             
or not;                                                                        
2. Whether the Legislature could delegate certain                              
lawmaking powers to the LBA Committee; and                                     
3. Transfer between appropriations.                                            
                                                                               
Mr. Baldwin continued, a stalemate was reached in the                          
Supreme Court.  The Administration won on the ability to                       
delegate to the LBA Committee lawmaking powers to approve                      
budget revisions and the ability to approve transfers to                       
appropriations.  The Legislature responded by taking away                      
the power to make appropriations.  The Administration did                      
not accept a role for the LBA Committee to approve budget                      
revisions during the interim or the approval of                                
unanticipated federal or other custodial trust receipts.                       
                                                                               
At that time, the Governor and the Legislature agreed that                     
there must be a way to work out the problem.  The Governor                     
agreed to wait while the Legislature passed a                                  
constitutional amendment.  The resolution was turned down                      
by a vote of the people.  The resolution would have allowed                    
the Legislature to give lawmaking powers to the LBA                            
Committee to exercise during the interim.   At that time                       
the Legislature became dissatisfied having no role for the                     
LBA Committee, and discussions continued as to whether the                     
case should be appealed.  That decision resulted in the                        
statute currently before the Committee.                                        
                                                                               
SB 347 was HELD in Committee for further consideration.                        
SENATE BILL NO. 323                                                            
                                                                               
"An Act relating to sexual offenses, to those who                              
commit sexual offenses, and to registration of sex                             
offenders; amending Rule 6(r)(2), Alaska Rules of                              
Criminal Procedure; and providing for an effective                             
date."                                                                         
                                                                               
KRISTIE TIBBLES, STAFF, SENATOR DRUE PEARCE, explained that                    
the use of children in the production of sexually explicit                     
material, including photographs, films, videos, and                            
computer images is a form of sexual abuse that can result                      
in physical or psychological harm to the children involved.                    
Individuals who utilize children as sexual objects or are                      
sexually attracted to children often seek out and collect                      
sexually explicit materials for their own sexual                               
gratification.                                                                 
                                                                               
Ms. Tibbles pointed out that access to the Internet has                        
become one of the preferred methods of distributing and                        
collecting child pornographic materials; several                               
investigations across the country have revealed thousands                      
of pieces of child pornography in the hands of child                           
pornographers.  Congress passed the Child Pornography                          
Prevention Act in 1996 and several states are taking action                    
to strengthen their pornography laws.                                          
                                                                               
Ms. Tibbles continued, the Alaska penalty for distribution                     
of child pornography, a Class C felony, is not more than                       
five years.  Law enforcement officers are encountering                         
problems in trying to prove distribution.  Offenders are                       
often charged with or plead down to possession of child                        
pornography, a Class A misdemeanor offense with a penalty                      
of not more than one year in prison, unless the offender is                    
convicted of more than one count and receives a consecutive                    
sentence.  SB 323 would increase the offense for possession                    
of child pornography to a class C felony, and the offense                      
for distribution to a Class B felony offense, punishable by                    
not more than 10 years in prison.                                              
                                                                               
Ms. Tibbles pointed out that SB 323 also would create the                      
offense of indecent exposure in the first degree if the                        
offender knowingly masturbates within the observation of a                     
person under 16 years of age.  The crime will be a Class C                     
felony offense.  The bill makes the existing offense of                        
indecent exposure, indecent exposure in the 2nd degree.                        
The penalty for this offense is a Class A misdemeanor when                     
committed before a person under 16 years of age, and a                         
Class B misdemeanor when committed before a person 16 years                    
or older.                                                                      
                                                                               
Ms. Tibbles explained the SB 323 would require sex offender                    
registration for the offenses of indecent exposure in the                      
first degree, indecent exposure in the second degree if                        
committed before a minor under the age of 16 for the second                    
offense, and possession of child pornography.  Currently,                      
only offenders who are convicted for distribution of child                     
pornography are required to register.                                          
                                                                               
Ms. Tibbles summarized that the existence and distribution                     
of child pornographic images creates the potential for many                    
types of harm in the community and presents a clear and                        
present danger to all children.  Strengthing the penalties                     
for these crimes send a clear message that the degradation                     
and exploitation of our children will not be tolerated.                        
Agencies in support of SB 323 include the Department of                        
Public Safety, the Alaska Peace Officers Association, the                      
Anchorage Police Department, UAF Police, and STAR.                             
                                                                               
JAYNE ANDREEN, EXECUTIVE DIRECTOR, COUNCIL ON DOMESTICE                        
VIOLENCE AND SEXUAL ASSAULT, JUNEAU, voiced support of the                     
proposed legislation.                                                          
                                                                               
Representative Grussendorf questioned the proposed title of                    
offense of "possession" of child pornography.  He thought                      
that "possession" was proposing a bit too stiff penalty.                       
Ms. Andreen pointed out that there is a network that takes                     
place for people who are interested in these types of                          
materials.  These are materials that are explicitly set up                     
to sexualize children.  She stressed how frightening it is                     
that people are preying upon children for sexual                               
gratification.                                                                 
                                                                               
Representative Martin echoed the avalability of vicious                        
materials taking advantage of children.  Representative J.                     
Davies inquired the placement in statute of the definition                     
of "child pornography".  Ms. Tibbles replied that the                          
statute that pertains to possession refers back to that                        
definition under the exploitation of a child.  The statute                     
site for possession of pornography is AS 11.61.127, and was                    
included on Page 3 of the bill.                                                
                                                                               
Representative Grussendorf reiterated that current state                       
law seems adequate when addressing "possession".  He                           
questioned the need to escalate it to a Class C felony.                        
Representative J. Davies agreed that the "effort" should be                    
made to "stamp out" those people who are producing the                         
materials.  He asked if there was evidence which correlates                    
the possession of child pornography to other kinds of                          
exploitation of children.  Ms. Andreen replied that there                      
is a very significant connection between them, which is                        
part of the entire cycle occurring at this time.  She                          
emphasized that with the Internet accessibility, it has                        
become an industry.                                                            
                                                                               
Representative J. Davies warned the possibility of those                       
who are curious, surfing the Internet, and the need to                         
establish the gray areas, so that the otherwise innocent                       
are not tracked.  He asked if there was a way to draw a                        
line and limit, perhaps including a rebuttal defense.                          
Representative Kelly asked if possession would include the                     
casual surfer pursuing the Internet.                                           
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ responded that it was                           
possible to possess without intending to "possess".  He                        
agreed this could create problems and that these issues                        
were discussed in the House Judiciary Committee.                               
                                                                               
Representative J. Davies asked if including "intentional"                      
or "knowing" possession could address the problem on Page                      
3, Line 2.  Representative Kelly thought that "knowingly"                      
would be easier to prove.  Representative Berkowitz                            
explained that "possession" was the exercise of dominion                       
and control over an object.  Representative J. Davies                          
inquired if storing an images on the computer would be                         
classified as possession.  Representative Berkowitz could                      
not answer that.                                                               
                                                                               
Representative Kelly MOVED to adopt Amendment #1.                              
Representative Mulder OBJECTED.  Representative Berkowitz                      
asked that Lines #1 - #3 be deleted from the amendment.  He                    
explained that the amendment would address indecent                            
exposure in a crowded situation.  He stated that such an                       
act would be difficult to prove that it was directed at a                      
specific individual.  Representative Kelly MOVED to amend                      
Amendment #1.  There being NO OBJECTION, it was amended.                       
                                                                               
There being NO OBJECTION to the amended Amendment #1, it                       
was adopted.                                                                   
                                                                               
Representative Mulder questioned the point at which a                          
person would move beyond curiosity and into collection.                        
Representative Berkowitz advised that testimony in the                         
House Judiciary Committee indicated that a collection of                       
over 100 was clearly a serious collector with a high                           
correlation of trading and sexual assaults.                                    
                                                                               
Following discussion regarding trading and possession,                         
Representative J. Davies MOVED to amend Page 3, Line 2,                        
inserting "knowing" before "possession".  There being NO                       
OBJECTION, it was adopted.  Co-Chair Therriault noted that                     
the Legislative drafters should phrase that language                           
appropriately.                                                                 
                                                                               
Representative J. Davies questioned if there should be a                       
distinction between "possession" as a Class A misdemeanor                      
and "knowing possession" as a Class C felony.                                  
Representative G. Davis pointed out that distribution is                       
the problem, not the possession.  Representative Berkowitz                     
elaborated that there is no limit to the number of counts                      
that a person could possess.                                                   
                                                                               
Representative Mulder spoke to the fiscal note.                                
                                                                               
BRUCE RICHARDS, PROGRAM COORDINATOR, OFFICE OF THE                             
COMMISSIONER, DEPARTMENT OF CORRECTIONS, noted that the                        
Department had submitted an unsigned fiscal note.                              
                                                                               
(Tape Change HFC 98-157, Side 1).                                              
                                                                               
Mr. Richards remarked that he had spoken with the Anchorage                    
Police Department asking them what the anticipated caseload                    
would be, based on previous experience.  They anticipate                       
three cases a year.  The Department's submitted analysis                       
provides the cost to cover that projected average.                             
                                                                               
Representative Mulder noted that he would support the                          
original fiscal note which represented a lesser amount.                        
Mr. Richards pointed out that the proposed bill would                          
transfer the cost of incarcerating people from the federal                     
government to the State government.  Ms. Tibbles                               
acknowledged that Senator Pearce had not seen the new                          
fiscal note.  Co-Chair Therriault noted that the bill would                    
be HELD in Committee in order to discuss the fiscal impact                     
with Senator Pearce.                                                           
                                                                               
SB 323 was HELD in Committee for further consideration.                        
SENATE CONCURRENT RESOLUTION NO. 11                                            
                                                                               
Creating the Long-Term Care Task Force.                                        
                                                                               
MARILYN WILSON, STAFF, SENATOR BERT SHARP, stated that as                      
Alaska's senior community grows, it is necessary that the                      
State plan for the long-term care and needs of these                           
citizens.                                                                      
                                                                               
She continued, while it is the desirable goal of most                          
families to provide home care for their elderly parents,                       
the realty is that most will live in a long-term care                          
facilities.  Either way, the costs of providing long-term                      
care is becoming insurmountable to the State and to our                        
private citizens.                                                              
                                                                               
In an effort to assure our senior citizens are getting the                     
best care possible, the Legislature in 1996, established a                     
working group to analyze long-term care services available                     
in the State and their projected costs.                                        
                                                                               
Ms. Wilson stated that SCR 11 would create a long-term care                    
task force.  Their mission would be to review the findings                     
of that working group and to develop an equitable plan for                     
providing an actuarially sound and affordable long-term                        
care option for all of Alaska's senior citizens.  She urged                    
the Committee to support of the proposed legislation.                          
                                                                               
Representative J. Davies MOVED to report CSSCR 11 (FIN) out                    
of Committee with individual recommendations and with the                      
accompanying fiscal notes.  There being NO OBJECTION, it                       
was so ordered.                                                                
                                                                               
CSSCR 11 (FIN) was reported out of Committee with a "no                        
recommendation" and with fiscal notes by the Department of                     
Commerce and Economic Development dated 3/4/98, the Office                     
of the Governor dated 3/4/98 and the Legislative Finance                       
Division dated 3/4/98.                                                         
ADJOURNMENT                                                                    
                                                                               
The meeting adjourned at 9:25 P.M.                                             
H.F.C. 12 5/05/98 eve                                                          

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