Legislature(1997 - 1998)
05/05/1998 07:30 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
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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