Legislature(1999 - 2000)
04/20/2000 09:10 AM 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
April 20, 2000
9:10 A.M.
TAPE HFC 00 - 130, Side 1.
TAPE HFC 00 - 130, Side 2.
TAPE HFC 00 - 131, Side 1.
CALL TO ORDER
Co-Chair Therriault called the House Finance Committee
meeting to order at 9:10 A.M.
PRESENT
Co-Chair Therriault Representative Foster
Co-Chair Mulder Representative Grussendorf
Representative Austerman Representative Moses
Representative Bunde Representative Phillips
Representative J. Davies Representative Williams
Representative G. Davis
ALSO PRESENT
Mike Tibbles, Staff, Representative Gene Therriault; Jim
Pound, Staff, Senator Robin Taylor; Anne Carpeneti,
Assistant Attorney General, Criminal Division, Department of
Law; Donald Stoltze, Staff, Senator Rick Halford; Senator
Dave Donley; Jim Pound, Staff, Senator Robin Taylor; Mary
Jackson, Staff, Senator John Torgerson; Dean Guaneli, Chief
Assistant Attorney General, Criminal Division, Department of
Law; Dwight Perkins, Deputy Commissioner, Department of
Labor and Workforce Development; Ron Hall, Deputy Director,
Employment Security Division, Department of Labor and
Workforce Development; Tom Wylie, Actuary, Unemployment
Insurance Trust Fund, Department of Labor and Workforce
Development; Wendy Redman, Vice President, Statewide
Services, University of Alaska, Fairbanks.
TESTIFIED VIA TELECONFERENCE
Tim Navarre, Kenai; Jim Samson, Fairbanks; Mark Johnson,
Anchorage.
SUMMARY
SB 4 An Act relating to establishing an office of
victims' rights; relating to compensation of
victims of violent crimes; relating to eligibility
for a permanent fund dividend for persons
convicted of and incarcerated for certain
offenses; and amending Rule 16, Alaska Rules of
Criminal Procedure, Rule 9, Alaska Delinquency
Rules, and Rule 501, Alaska Rules of Evidence.
HCS CS SB 4 (FIN) was reported out of Committee
with a "no recommendation" and with new fiscal
notes by Department of Corrections, Office of the
Governor and Department of Law and new zero fiscal
notes by Department of Administration, Department
of Public Safety and Legislative Affairs Agency.
SB 73 An Act relating to assisted living homes; and
providing for an effective date.
SB 73 was SCHEDULED but not HEARD.
SB 177 An Act relating to insurance trade practices; and
providing for an effective date.
SB 177 was SCHEDULED but not HEARD.
SB 259 An Act relating to criminal impersonation.
HCS CS SB 259 (JUD) was reported out of Committee
with a "do pass" recommendation and with fiscal
notes by the Senate Finance Committee dated
4/13/00, Department of Administration dated
4/19/00 and the Department of Law dated 4/19/00.
SB 286 An Act relating to the duties and powers of the
attorney general.
HCS CS SB 286 (FIN) was reported out of Committee
with a "no recommendation" and with a fiscal note
by the Department of Law dated 3/23/00.
SB 289 An Act establishing and relating to the Alaska
Board of Technical and Vocational Education; and
providing for an effective date.
SB 289 was HEARD and HELD in Committee for further
consideration.
SJR 40 Proposing amendments to the Constitution of the
State of Alaska providing that the governor,
United States senators, United States
representative, and electors of the President and
Vice-President of the United States be elected by
a majority vote.
SJR 40 was SCHEDULED but not HEARD.
HOUSE CS FOR CS FOR SENATE BILL NO. 259(JUD)
An Act relating to crimes and offenses relating to
aural representations, recordings, access devices,
identification documents, impersonation, false reports,
and computers; and providing for an effective date.
JIM POUND, STAFF, SENATOR ROBIN TAYLOR, noted that some
people acting under an assumed name, with false
identification to support the claim, obtain credit cards and
checking accounts and then often do not pay the bills. Such
an action leaves the honest Alaskans with the problem of
dealing with credit agencies, or the government with little
or no recourse.
Mr. Pound noted that this creates is more than fraud to deal
with. Today criminals can access information by sitting at
the computer or giving information over the telephone.
These "new criminals" are not part of current statute. SB
259 would correct that by updating existing law and
establishing that Alaska considers stealing someone's
identity a crime with serious consequences.
Mr. Pound provided a sectional analysis of the legislation
highlighting all changes.
Co-Chair Therriault noted there would be a change from the
term "credit card" to "access device" to include debit cards
and other credit pieces.
Vice Chair Bunde asked if was already illegal to give false
information to a police officer. Mr. Pound did not know.
He thought that the legislation would help define the
offense.
Representative Austerman referenced Section 6, criminal
impersonation in the first degree. He asked if all three
items listed would have to be present for a person to be
charged.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, replied that all three would
have to be proven without reasonable doubt in order for that
person to be prosecuted.
Ms. Carpeneti highlighted the main themes of the bill. The
first item would be to bring forward existing statutes,
making them current with modern life so that theft of credit
would be changed to theft of an access device. The second
change would be to make identity theft in our State a crime,
as it is a serious offense that is happening more often.
She stressed that it is difficult for these victims to get
their lives back together. Whoever has their identification
will always have it.
Ms. Carpeneti advised that the statute does not cover the
stealing of the items, however, selling "the right to" is
covered under the bill. That action would be fraudulent
issuance of a credit card or an identification document. At
this time, the statute only covers the stealing of the
credit card by fraudulent means. She noted that phone calls
would be covered under the legislation under "access
devices".
Representative J. Davies referenced Page 4, Line 13. Ms.
Carpeneti explained that section had been added because the
identity statute was named criminal impersonation in the
first degree. Consequently, it needed a new name. The
difference in the actual substance of that statute is that
it would include intentional fraud and intent to commit a
crime to obtain a benefit to which a person is not entitled.
Representative J. Davies inquired what second degree
represented in terms of a consequence. Ms. Carpeneti
replied that it would be a Class A misdemeanor, which is
maximum of one-year jail time and a $5000 dollar fine.
Representative J. Davies referenced Page 6, Line 9,
"offense". Ms. Carpeneti replied that section was added at
a legislator's request, who voiced concerns regarding a
person who obtained a fake driver's license. That type
conduct would be a Class A misdemeanor. Representative J.
Davies asked the other items included in that "sweep". Ms.
Carpeneti replied such an offense would include violations
such as traffic offenses or anything that has a consequence
of a fine up to $300 dollars. Also, using false
identification would be considered such an offense. Under
Title 4, using false identification would be classified as a
misdemeanor. Representative J. Davies noted his concern
that trivial consequences would be swept into that language.
Representative J. Davies questioned the discretion that a
judge would use to determine the sentence. Ms. Carpeneti
replied that would depend on that person's history.
Co-Chair Mulder MOVED to report HCS CS SB 259 (JUD) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
HCS CS SB 259 (JUD) was reported out of Committee with a "do
pass" recommendation and with fiscal notes by the Senate
Finance Committee dated 4/13/00, Department of
Administration dated 4/19/00 and Department of Law dated
4/19/00.
RECESSED
The Committee recessed at 9:35 a.m.
RECONVENED
The Committee reconvened at 2:25 p.m.
HOUSE CS FOR CS FOR SENATE BILL NO. 4(JUD)
An Act relating to victims' rights; relating to
establishing an office of victims' rights; relating to
compensation of victims of violent crimes; relating to
eligibility for a permanent fund dividend for persons
convicted of and incarcerated for certain offenses;
relating to notice of appropriations concerning
victims' rights; amending Rule 16, Alaska Rules of
Criminal Procedure, Rule 9, Alaska Delinquency Rules,
and Rule 501, Alaska Rules of Evidence; and providing
for an effective date.
DONALD STOLTZE, STAFF, SENATOR RICK HALFORD, explained the
changes done on the proposed legislation since the last
meeting.
Representative Phillips asked to change language in
Amendment #1, Page 1, Line 22, deleting the "Department of
Public Safety" and inserting the "Office of the Governor".
She advised that this change would need to be made
throughout the entire bill. [Copy on File].
Representative Phillips MOVED to ADOPT Amendment #1, 1-
LS0029\M.2, Luckhaupt, 4/19/00. There being NO OBJECTION,
the amendment was adopted.
Representative Phillips MOVED to ADOPT Amendment #2 which
would place a 4-year sunset clause on the legislation. That
would result in a new section, number #13. The sunset date
would be June 30, 2004. There being NO OBJECTION, it was
adopted.
MIKE TIBBLES, STAFF, REPRESENTATIVE GENE THERRIAULT, was
requested to join the Committee to explain previous action
taken in the committee substitute on the conforming
amendment. Mr. Tibbles noted that the work draft that was
adopted included a provision that required that victims
"shall", to the maximum extend practicable, conduct duties
contractually. The intent was to direct them to contract
out their services with non-profit organizations. He noted
that Amendment #1 did not include that language.
Mr. Tibbles pointed out that references in the original work
draft had been made to the offices rather than the
individual. Co-Chair Therriault proposed an amendment which
would include that into the proposed bill. The change would
be to Page 5, Amendment #1. Mr. Tibbles recommended that
language be included under Article 2A, duties of the office.
He noted that it would be a new subsection and that it could
be added into Subsection (a) or be a new Subsection (f).
Co-Chair Therriault MOVED conceptual Amendment #3, which
would utilize the concept in the "N" version and would add a
new section calling for the contracting out provision.
There being NO OBJECTION, it was adopted.
Representative J. Davies MOVED to AMEND the proposed
legislation, replacing references to the Governor's Office
with the Ombudsmen's Office. Representative Phillips
OBJECTED. She advised that had been considered but noted
that the State's Ombudsmen's Office can not serve as an
advocacy office. Representative Phillips pointed out that
the proposed function is one of advocacy. She reiterated
that consideration had already been made.
Representative J. Davies pointed out that Office does
operate as an advocate of that function and that they should
be able to make the determination. He believed that the
role of the two agencies was "thin". Representative
Phillips reiterated that those issues had been examined. An
advocacy organization does not have the authority to use the
services of the Ombudsmen's Office. Representative J.
Davies WITHDREW the MOTION to amend.
Representative G. Davis recommended shortening the sunset by
two years. He MOVED to ADOPT Amendment #4, which would
sunset the legislation in 2002. Mr. Stoltze interjected
that the funding mechanism does not begin until that year.
He believed such a sunset would be premature.
Representative G. Davis WITHDREW his MOTION to amend.
Mr. Tibbles spoke to the new fiscal notes contained in
member's packets submitted by the Department of Corrections,
Department of Law, and zero notes by Department of
Administration, Department of Public Safety and Legislative
Affairs Agency. Representative J. Davies asked if anyone
had spoken to the Governor's Office regarding the fiscal
impact to that Office. Representative Phillips indicated
that she had not. Representative J. Davies voiced concern
that there had not been a fiscal note submitted by the
Governor. Co-Chair Therriault advised that the costs
provided by Legislative Council would be moved to the Office
of the Governor.
Representative Foster MOVED to report HCS CS SB 4 (FIN) out
of Committee with individual recommendations and with the
accompanying fiscal notes. Vice Chair Bunde OBJECTED for
comment on the fiscal notes. He noted the fiscal size of
the notes and questioned if that money was best-spent on
victims or better spent somewhere else. Vice Chair Bunde
WITHDREW his OBJECTION. There being NO further OBJECTION,
it was so ordered.
HCS CS SB 4 (FIN) was reported out of Committee with a "no
recommendation" and with new fiscal notes by the Department
of Corrections, Department of Law and the Office of the
Governor and zero notes by the Department of Administration,
Department of Public Safety and Legislative Affairs Agency.
CS FOR SENATE BILL NO. 289(FIN) am
An Act relating to technical and vocational education
and to employment assistance and training; and
providing for an effective date.
MARY JACKSON, STAFF, SENATOR JOHN TORGERSON, explained that
the bill would establish a new Alaska Technical and
Vocational Education Program, which would be funded through
an employee credit on the Unemployment Insurance Trust Fund.
The new credit is one-tenth of one percent and is patterned
after the credit currently in place for the Statewide
Employment Program (STEP).
The new program would be administered by the existing Alaska
Human Resource Investment Council (AHRIC), which is charged
with the responsibility of determining the priorities for
grant submittal and distributions on an annual basis. The
revenue from that source is expected to be about $4.3
million annually. Entities eligible to receive grants are
those that are authorized by and are physically located in
the State of Alaska.
The first year revenues (about $3.2 million dollars) are
directed to specific entities because the AHRIC would not
have had the opportunity to formulate regulations to solicit
grant applications. Those funds are directed to the
University of Alaska (52% = $1.725 million), Kotzebue
Technical Center (16% =$516,000) and Alaska Vocational
Technical Center (32% = $1.032 million).
Ms. Jackson continued, the bill would also provide for the
AHRIC to act as the lead State planning and coordinating
entity for Alaska. The State would then be in position to
receive funds from the federal government for technical and
vocational education programs.
After the first year, grants would be awarded to programs in
Alaska run by technical and vocational entities that hold
valid authorization to operate. The AHRIC will award grants
to entities that have sufficient accounting systems, secured
private sector contribution commitments for matching
purposes, and who's grant application purpose is listed
first on the list of priorities adopted by the AHRIC. AHRIC
will adopt a priority list each year based on economic,
employment, and other relevant data in order to maximize
employment opportunities for participants.
Ms. Jackson pointed out that the bill would establish intent
language directing the AHRIC to undergo an internal review
to improve its efficiency and minimize its membership. It
would require a report to the 22nd Legislature on that review
and also on the developed guidelines for implementing the
new grant program.
Ms. Jackson stated that the bill would revise some program
elements of the existing STEP by adding clarifying language
on grant fund use for relocation assistance, tools and other
gear, and support services, including allowances.
Representative J. Davies referenced the diagram contained in
member's packets indicating .2% - Attachment #1 and asked
how that number had been determined. [Copy on File].
Ms. Jackson noted that the account was established on Page
3; Page 30 indicates establishment of the employee
contribution; Page 4 contains the same verbiage that is in
the existing State Training Employment Program (STEP) where
the 2/10th was established.
Vice Chair Bunde referenced the current STEP funding and
asked if that referred to the current amount that the
employee and employer were having deducted. Ms. Jackson
replied those are the current averages.
(TAPE CHANGE, HFC 00 - 130, Side 2).
Ms. Jackson explained that it would not increase the
deductions.
Representative Phillips inquired if the sponsor had an
amount in mind for the Intent Language in Section #1. Ms.
Jackson stated that they did not. She noted that the first
board was a stand alone, five-person board. The Legislature
appointed it through the Governor and is subject to
ratification. The Senate Finance Committee (SFC) decided to
go with the existing group, however, she commented since the
membership is so large, there should be common provisions
put into effect.
Ms. Jackson referenced the Alaska Human Resource Investment
Council (AHRIC) and noted that grants after the first year
would be awarded according to regulations developed by
AHRIC. The revenue from that source is expected to be about
$8.6 million dollars annually.
TIM NAVARRE, (TESTIFIED VIA TELECONFERENCE), KENAI,
testified in support of the legislation. He noted that it
would provide a better-trained and educated work force from
which to draw upon as an employer. Potentially, that could
reduce the draw on the trust fund for unemployment. Mr.
Navarre suggested that there would be concerns regarding
future increases.
DWIGHT PERKINS, DEPUTY COMMISSIONER, DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT, noted the position paper included in
members packets as submitted by Commissioner Flanagan. [Copy
on File].
Mr. Perkins advised that the Department strongly supports
the intent of the bill, however, are opposed to the
diversion of funds from the Unemployment (UI) Trust fund to
achieve that goal. The Department is not opposed to some
sort of tax to support vocational technology education. It
is true that there is currently a diversion of .1% of
employed UI contributions in the STEP, which was established
in legislation in 1989. STEP, however, is closely tied to
the UI program; eligibility for service is restricted to
workers who have contributed to UI by working for a
contributing employer; the statutory purpose of the program
is to reduce claims against unemployment benefits and reduce
unemployment costs. When not reappropriated to the STEP
account, unexpended funds have always been deposited back
into the corpus of the UI Trust Fund.
Representative Phillips asked if any of the UI funds were
used for relief sent to Bristol Bay a couple years ago. Mr.
Perkins replied that those funds were not sent directly from
the Trust Fund. He pointed out that there are large
unemployment pockets having a need and it becomes an
infusion of funds into those communities.
Vice Chair Bunde commented that the STEP draw was for those
people whom had paid into the UI program and had become
unemployed. He proposed that using that money to train
people would help prevent future danger of unemployment.
Representative Bunde suggested that it was a type of "user
fee". Mr. Perkins replied that, currently, in order to
qualify for STEP funds, only private employers pay into it.
Many folks would not be eligible for those funds.
In response to Co-Chair Therriault, Mr. Perkins noted that
Alaska is one of five states in which the employee
participates in the unemployment insurance side of the
equation. In Alaska, it is referred to as a 20/80 plan. The
employee pays 20% and the employer pay 80%. If there were
an increase in the weekly benefit amount, the corpus of the
fund would need to be made up. The concern is if the corpus
of the fund begins to draw down, and if the employer side of
the equation increases, would they be interested in an
increased weekly benefit amount.
RON HALL, DEPUTY DIRECTOR, EMPLOYMENT SECURITY DIVISION,
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, replied to
questions asked by Representative G. Davis. He noted that
that the chart represents a reversed axle and would not
originate from the trust fund. The bill would not add an
additional deduction into the employee paycheck, but
instead, the corpus would drop. To recover those funds, the
tax rate of the employers would have to increase. The
employers are responsible to pay for this increase.
Co-Chair Mulder asked the amount of money currently in the
fund. Mr. Hall replied that in October 1999, there was $211
million dollars. Co-Chair Mulder asked the percentage of
solvency. Mr. Hall explained that it would take about two
years for the formula to set in. The formula reacts over a
three-year cycle and if there is a large economic down pour,
the solvency rate could drop fast. It takes two to three
cycles for that to happen. The solvency rate formula is
established by a federal standard. Right now the State is
at .98% of that standard. He added that we should be at 1%
of the standard.
Co-Chair Mulder believed that was a healthy number. Mr.
Hall explained that if the State dropped to .8%, there would
be sanctions imposed. Co-Chair Mulder asked at what level
could a tax be imposed. Mr. Hall replied that the proposed
legislation would impose a tax to the employer. It would
take two years for that to occur. Co-Chair Mulder asked
what could trigger a tax. Mr. Perkins interjected that a
draw down could happen.
TOM WYLIE, ACTUARY, UNEMPLOYMENT INSURANCE TRUST FUND,
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, noted that
there are two parts of the calculation of the UI tax rates.
The first part looks at benefit costs in relation to
payroll. That provides a certain percentage which is called
the "average benefit cost rate". That is the percentage
rate which is divided between the employer and the employee
and provides the 2.14% and .54% number. After that
calculation is done, then the tax rate calculation looks at
the amount of money and calculates according to a solvency
rate schedule whether the fund appears to be in good or bad
shape in comparison to the statewide payroll.
In response to Co-Chair Mulder's question as to when the
trust fund becomes solvent, Mr. Wylie noted that is the
stage where the trust fund is looked at. When the amount of
money in the UI Trust Fund falls below 3% of taxable total
payroll in the State, then a tax is added on to the
employers tax rate. If the Trust fund balance falls below
3.3% of total payroll in the State, it is considered more
solvent than it needs to be and the employers tax rate is
reduced by the solvency adjustment.
Co-Chair Mulder inquired about applying that concept to
today. Mr. Wylie replied that today, the trust fund is at
approximately 3.15%, which is a bit higher than it needs to
be. Discussion followed between Mr. Wylie and Co-Chair
Mulder regarding the solvency percentage. Mr. Wylie noted
that the calculation states that if the Trust Fund solvency
is between 3%-3.3% of payroll, it is okay and we would not
need a tax. He noted that the State is currently at 3.15%.
Co-Chair Mulder asked what the 3% would constitute. Mr.
Wylie replied that 3% of total payroll tends to be right
around $200 million dollars. That changes during the course
of the year and during the winter months when unemployment
rates are higher. For tax rate purposes, the State looks at
the Trust Fund balances at the end of September. This is a
State standard and added that there is no national standard
compared to the Alaska standard. All the states have a
different way to set solvency. The tax rate moves based on
the assumption of whether it is a good rate or not. The
federal government has a solvency rate which they call an
average high cost multiplier. That calculation is applied
to every state.
In response to Co-Chair Mulder, Mr. Wylie noted that the
average high cost is 1%. It is a different type of
calculation than the one previously explained. Co-Chair
Mulder asked how would that translate to the State of
Alaska's calculation. Mr. Wylie replied that the federal
calculation on our tax rate came out to .98, just under 1%,
which is considered the proper average high cost multiplier
that the federal government uses. Co-Chair Mulder asked the
flexibility. Mr. Wylie replied that the federal government
is not that complicated. If a state is at 1% or above, they
are okay and if below, they are not. He reiterated that
above is good, below is not.
JIM SAMSON, (TESTIFIED VIA TELECONFERENCE), FAIRBANKS,
spoke in opposition to the legislation. He noted that he
had the responsibility of distributing the Unemployment
Trust Fund in 1986-1987, during the lowest point in the
account. He stated that the Trust Fund should not be used
to pay for the programs outlined in SB 289.
Mr. Samson noted that he supported adequate funding for the
Tech Center and full funding for the University, however,
disagreed that the funding should come out of the Trust Fund
that was set up to pay benefits to workers during temporary
unemployment. He understood that by taking 2/10 of 1%, and
diverting it into another fund would be unfair to every
Alaskan employee. He stressed that the burden would not be
fairly distributed by that method of tax.
WENDY REDMAN, VICE PRESIDENT, STATEWIDE SERVICES, UNIVERSITY
OF ALASKA, FAIRBANKS, voiced support for the proposed
legislation. She acknowledged that an alternative source of
funding would be better. Ms. Redman noted that since the
State general fund should be supportive of all training
programs, the State should keep people employed. Given that
the State is not at that place yet, one of the best things
that the State could do is to provide training to people to
be better able to hold jobs. Given the last decade of flat
funding for vocational programs throughout the State, the
University is in trouble trying to respond to the current
training needs existing in Alaska.
Ms. Redman explained that there has not been a capital
appropriation for instructional equipment in almost a
decade. In trying to respond to some of the high tech
programs needed throughout the State, there is not enough
money to make the up-front investment.
CS SB 259 (JUD) was HELD in Committee for further
consideration.
HOUSE CS FOR CS FOR SENATE BILL NO. 286(JUD)
An Act relating to the duties and powers of the
attorney general.
JIM POUND, STAFF, SENATOR ROBIN TAYLOR, explained that SB
286 was an attempt to clarify the duties of the Attorney
General, place into statute that the Attorney General
"shall" defend the Constitution of the State of Alaska, and
put into law that the Legislative power to make
appropriations constrains and limits the Attorney General's
authority to settle cases.
He noted that the Senate Judiciary Committee had worked
closely with members of the Subcommittee on privatization
and considered recommendations. The Subcommittee found that
the Attorney General is not a constitutional officer and
that the Legislature, by statute, may define the role and
responsibilities of the head of the Department of Law. He
pointed out that it was the intent of the legislation that
the Attorney General defend and uphold the Constitution of
the State of Alaska, and that any settlement entered into by
the Attorney General, which recognizes a present or future
duty or obligation on the part of the State, and not
contained in statute or for which appropriations have not
been provided, must expressly provide that the duty or
obligation is subject to appropriation by the Legislature.
Co-Chair Therriault pointed out that the sponsor had
withdrawn the proposed committee substitute. [Copy on
File]. Mr. Pound noted that the proposed amendment would
resolve concerns addressed in the substitute.
Representative Phillips asked if there was anything in the
legislation that called for the election of the Attorney
General. Mr. Pound replied there was not.
In response to a question by Representative J. Davies
regarding "common law", Mr. Pound pointed out a reference on
Page 2, Line 8. He stated that language was changed in the
Senate Judiciary Committee at the request of the Department.
Representative J. Davies commented that was not a
substantive change. Mr. Pound suggested that the amendment
should resolve the problem.
Vice Chair Bunde MOVED to ADOPT Amendment #1, 1-LS1512\G.
[Copy on File]. Representative Bunde OBJECTED for the
purpose of discussion. Mr. Pound stated that Amendment #1
would delete "or that generally . in other states"; and add,
"that pertain to the Office of the Attorney General".
Representative Grussendorf asked the purpose of the
amendment. Mr. Pound explained that the argument was that
the definition of common law refers to the common law of
other states. The question rests in whether Alaska should
base their law on common law dating back from the 17th
century English and applies to other states.
Co-Chair Therriault pointed out that the effect of the
amendment is that Alaska's statutes would govern the duties
of the Attorney General. Mr. Pound agreed. Representative
J. Davies argued that much of state law is based on common
law. If that is the intent of the amendment, he believed it
was misdirected. Common law exists in this country. He
noted that many court decisions are decided on the basis of
what is general practice.
Co-Chair Therriault observed that it would provide a list of
duties. The question is whether the Attorney General would
perform his duties based on other states common law or the
list provided in the legislation.
Representative J. Davies argued that what occurs in the
committee substitute and that is further exasperated through
the amendment is a change to existing statute.
Representative J. Davies noted that he preferred the
existing statutory language.
(TAPE CHANGE, HFC 00 - 131, Side 1)
Vice Chair Bunde noted his concern regarding "common law"
property. He asked what the language was before the House
Judiciary Committee changed it. Mr. Pound replied that the
Legislature should be the ones that define the description.
Representative G. Davis asked if the courts would be able to
continue to use common law, and then the Attorney General
would not have that authority.
DEAN GUANELI, CHIEF ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, explained that the Attorney
General's office worked with the House Judiciary Committee
in establishing a committee substitute. He stated that it
adequately strikes a balance between the sponsor's concerns
and the needs of the Department. He noted that it also
addresses the concerns regarding common law authority of the
Attorney General. It is true that over a period of many
years, the judges in other states have developed common
principles about what other attorney generals can do and
what authority they have.
Mr. Guaneli provided Committee members with five examples
where in Alaska, the Department has had to go to the Court
of Appeals and relies on this provision:
? From time to time, there is a conflict in
prosecuting in a particular criminal case. The
attorney general appoints special prosecutors or
independent counsel. There is no statute that
allows the attorney general to appoint those
prosecutors. He noted that recently, the
defendant in a case went to the Court of Appeals
and challenged the attorney general's authority to
do that.
Co-Chair Therriault noted that the federal government allows
that. He asked if there were other places nationally that
allowed it. Mr. Guaneli replied that the Court of Appeals
found that authority usually pertains to the Office of the
Attorney General. He added, it does not flow through
statutes in other states but instead, is where the courts
have found that this is power that the attorney generals
have and that is necessary to carry out their public duties.
? He noted that the second item was when an Attorney
General's office brought an action on behalf of a
number of consumers who had bought land under a
"shady" land deal. The Attorney General brought
that to the Consumer Protection Law and for some
reason the court held that the Consumer Protection
Laws did not apply. The Attorney Generals office
switched theories noting a uniform land sales act
in Alaska. The Supreme Court found that under the
attorney generals common law authority, they had
the power to use a common law fraud action against
the land developer.
? Noted that there are many crimes each year, where
people allege that crimes have been committed in
violation of State law. The Attorney General has
the discretion not to prosecute. The authority
not prosecute comes from the described provision.
Vice Chair Bunde commented that the law was working under
the original verbiage and then it was changed in the House
Judiciary Committee. Mr. Guaneli clarified that
Representative Green had a concern with that language. The
general common law in this country is if the Attorney
Generals states the authority, then it is something that can
be done. Representative Green thought that it would be
appropriate to change the language so that it would not look
like we were doing something not in law.
? Mr. Guaneli noted that in cases where the State is
not a party, the State is asked to file as a
"friend of the court" and the State would have
nothing to do with the litigation.
? The last scenario carries a fiscal impact. The
strict reading of current law represents the State
in which the State is a party. There are a number
of lawsuits that the Attorney General defends, in
which the State is not named, but an employee is.
In the federal civil rights actions, they have to
file against an individual; they can not file
against the State. There is currently, nothing in
statute that would allow the Attorney General to
represent an employee of the State. The
Department believes that is within their general
authority to represent State employees and is
included in many union contracts. The danger is
that if the Attorney General is not allowed to
represent State employees, and then those
employees are sued, they would have to get private
counsel. That could give the litigants some basis
for suing the State later.
Mr. Guaneli pointed out that there is a statute that
stipulates that common law governs in the State of Alaska,
except where it has been specifically over-ridden in
statute. The danger of removing the common law powers of
the Attorney General is that all circumstances will be
"caught" where the Attorney General will need to rely on
some common law authority. He emphasized that the
Department of Law becomes involved in every-kind of case
imaginable and the purposed language would force giving up
important rights and authority of the Attorney General.
Mr. Guaneli added that the Attorney General is not a
constitutional officer, therefore, the Legislature does have
authority to set the powers of the Attorney General. The
Governor is a constitutional officer. He noted that there
is a provision in the Constitution, Article 3, Section 16,
which imposes upon the Governor, the obligation to initiate
legal action to uphold the constitutional laws of the State
of Alaska to protect its' people. The governors do not do
that on their own, but instead, do it through the attorney
general. To take away the powers of the Attorney General
that are necessary to uphold the governor's legal authority
may be beyond the power of the Legislature. He clarified
that if the legislation passes, it will result in more
litigation.
Mr. Guaneli reiterated that the Department is satisfied with
the House Judiciary Committee version of the legislation.
Representative J. Davies asked if generally, the courts had
read the existing statutory language consistently with the
House Judiciary amendment. Mr. Guaneli replied that was the
way that the Courts had interrupted it. Representative J.
Davies noted that a court might ask why the Legislature
changed the language. He commented that the existing
language was clear.
Mr. Guaneli interjected that the wording he had suggested to
the House Judiciary Committee was that "the powers that
usually pertain to the Office of the State Attorney
General". That language is the key for what is generally
necessary for an office of the State Attorney General to
carry out their public protection duties.
Representative Phillips emphasized that the current system
is not broken.
Co-Chair Therriault noted that Amendment #1 was the MOTION
before Committee members.
A roll call vote was taken on the motion.
IN FAVOR: Grussendorf, Phillips, Williams, Bunde, J.
Davies, G. Davis, Foster, Therriault
OPPOSED: -0-
Representative Moses, Representative Austerman and Co-Chair
Mulder were not present for the vote.
The MOTION FAILED (0-8).
Vice Chair Bunde MOVED to ADOPT a conceptual amendment on
Page 2, Lines 8-10, returning the bill to the original
language. Representative G. Davis OBJECTED. He noted
that it had passed the House Judiciary Committee and that
legal counsel had recommended the change.
A roll call vote was taken on the motion.
IN FAVOR: Phillips, Williams, Austerman, Bunde, J.
Davies, Grussendorf
OPPOSED: Foster, G. Davis, Therriault
Representative Moses and Co-Chair Mulder were not present
for the vote.
The MOTION FAILED (6-3).
Representative Foster MOVED to report HCS CS SB 286 (FIN)
out of Committee with individual recommendations and with
the accompanying fiscal note. There being NO OBJECTION, it
was so ordered.
HCS CS SB 286 (FIN) was reported out of Committee with a "no
recommendation" and with a fiscal note by the Department of
Law dated 3/23/00.
MARK JOHNSON, (TESTIFIED VIA TELECONFERENCE), ANCHORAGE,
commented that the fundamental principle that the language
be eliminated from existing law stems from the notion that
the powers of the Attorney General's office stem from the
constitutional statutes of Alaska. He stated, what is
currently in law is an open-ended invitation for the
Attorney General to initiate litigation for a whole array of
subjects.
Mr. Johnson argued that if left as it stands, it would only
be a matter of time before the Department of Law had an
issue that they feel strongly about but that the Legislature
did not support. He stated that he did not support deletion
of the language adopted by the Committee.
ADJOURNMENT
The meeting adjourned at 4:10 P.M.
H.F.C. 18 4/20/00 a.m.
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