Legislature(1995 - 1996)
04/16/1996 03:07 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES
STANDING COMMITTEE
April 16, 1996
3:07 p.m.
MEMBERS PRESENT
Representative Cynthia Toohey, Co-Chair
Representative Con Bunde, Co-Chair
Representative Gary Davis
Representative Norman Rokeberg
Representative Caren Robinson
Representative Tom Brice
Representative Al Vezey
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HOUSE BILL NO. 522
"An Act relating to employer drug and alcohol testing programs."
- SUBCOMMITTEE APPOINTED
SENATE BILL NO. 134 am
"An Act establishing an endowment for the Robert B. Atwood
journalism chair at the University of Alaska Anchorage; and
providing for an effective date."
- PASSED OUT OF COMMITTEE
SENATE CONCURRENT RESOLUTION NO. 25
Relating to supporting home schooling and establishing Alaska Home
Education Week.
- PASSED OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 50
Proposing an amendment to the Constitution of the State of Alaska
relating to freedom of conscience.
- FAILED TO PASS OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 522
SHORT TITLE: EMPLOYER DRUG TESTING PROGRAM
SPONSOR(S): LABOR & COMMERCE BY REQUEST
JRN-DATE JRN-PG ACTION
02/19/96 2804 (H) READ THE FIRST TIME - REFERRAL(S)
02/19/96 2804 (H) HES, LABOR & COMMERCE, FINANCE
04/16/96 (H) HES AT 3:00 PM CAPITOL 106
BILL: SB 134
SHORT TITLE: ATWOOD CHAIR OF JOURNALISM AT U OF AA
SPONSOR(S): SENATOR(S) KELLY, Halford, Pearce, Leman, Taylor,
Rieger, R.Phillips
JRN-DATE JRN-PG ACTION
03/17/95 665 (S) READ THE FIRST TIME - REFERRAL(S)
03/17/95 665 (S) HES, FIN
03/27/95 (S) HES AT 10:00 AM BUTROVICH ROOM 205
03/27/95 (S) MINUTE(HES)
04/07/95 (S) HES AT 9:00 AM BUTROVICH ROOM 205
04/07/95 (S) MINUTE(HES)
04/07/95 914 (S) HES RPT 2DP 2NR
04/07/95 914 (S) FISCAL NOTE (UA)
02/22/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/22/96 (S) MINUTE(FIN)
02/23/96 2511 (S) FIN RPT 5DP 2NR
02/23/96 2512 (S) ZERO FISCAL NOTE (S.FIN/UA)
02/26/96 (S) RLS AT 12:45 PM FAHRENKMAP RM 203
02/26/96 (S) MINUTE(RLS)
02/28/96 (S) RLS AT 12:50 PM FAHRENKAMP RM 203
02/28/96 (S) MINUTE(RLS)
02/29/96 (S) RLS AT 9:00 AM BELTZ ROOM 211
03/11/96 2686 (S) RULES TO CALENDAR AND 1NR 3/11/90
03/11/96 2687 (S) READ THE SECOND TIME
03/11/96 2687 (S) AM NO 1 ADOPTED UNAN CONSENT
03/11/96 2687 (S) COSPONSOR(S):HALFORD, PEARCE, LEMAN
03/11/96 2687 (S) TAYLOR, RIEGER, PHILLIPS
03/11/96 2687 (S) ADVANCED TO THIRD READING UNAN
CONSENT
03/11/96 2687 (S) READ THE THIRD TIME SB 134 AM
03/11/96 2687 (S) RETURN TO SECOND FOR AM 2 UNAN
CONSENT
03/11/96 2688 (S) AM NO 2 ADOPTED UNAN CONSENT
03/11/96 2688 (S) AUTOMATICALLY IN THIRD READING
03/11/96 2688 (S) PASSED Y17 N1 E2
03/11/96 2688 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
03/11/96 2688 (S) DUNCAN NOTICE OF RECONSIDERATION
03/12/96 2718 (S) RECON TAKEN UP - IN THIRD READING
03/12/96 2719 (S) PASSED ON RECONSIDERATION Y17 N1 E2
03/12/96 2719 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
03/12/96 2719 (S) TRANSMITTED TO (H)
03/13/96 3107 (H) READ THE FIRST TIME - REFERRAL(S)
03/13/96 3107 (H) HES, FINANCE
04/16/96 (H) HES AT 3:00 PM CAPITOL 106
BILL: SCR 25
SHORT TITLE: ALASKA HOME EDUCATION WEEK
SPONSOR(S): SENATOR(S) MILLER, Halford, R.Phillips, Pearce, Taylor,
Leman, Sharp, Frank, Torgerson, Green, Donley
JRN-DATE JRN-PG ACTION
02/12/96 2381 (S) READ THE FIRST TIME - REFERRAL(S)
02/12/96 2381 (S) HES
03/13/96 (S) HES AT 8:30 AM BUTROVICH ROOM 205
03/14/96 2733 (S) HES RPT 2DP 2NR
03/14/96 2733 (S) ZERO FISCAL NOTE (DOE)
03/18/96 (S) RLS AT 12:20 PM FAHRENKAMP RM 203
03/18/96 (S) MINUTE(RLS)
03/25/96 2864 (S) RULES TO CALENDAR 3/25/96
03/25/96 2884 (S) READ THE SECOND TIME
03/25/96 2884 (S) COSPONSOR(S): HALFORD, PHILLIPS,
PEARCE, TAYLOR, LEMAN, SHARP, FRANK
TORGERSON, GREEN, DONLEY
03/25/96 2885 (S) PASSED Y20 N-
03/25/96 2886 (S) TRANSMITTED TO (H)
03/26/96 3360 (H) READ THE FIRST TIME - REFERRAL(S)
03/26/96 3360 (H) HES
04/16/96 (H) HES AT 3:00 PM CAPITOL 106
BILL: HJR 50
SHORT TITLE: FREEDOM OF CONSCIENCE - BILL OF RIGHTS
SPONSOR(S): REPRESENTATIVE(S) MARTIN,Green
JRN-DATE JRN-PG ACTION
12/29/95 2357 (H) PREFILE RELEASED
01/08/96 2357 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2358 (H) HES, STA, JUDICIARY, FINANCE
01/10/96 2404 (H) COSPONSOR(S): GREEN
04/02/96 (H) HES AT 3:00 PM CAPITOL 106
04/02/96 (H) MINUTE(HES)
04/04/96 (H) HES AT 3:00 PM CAPITOL 106
04/04/96 (H) MINUTE(HES)
04/16/96 (H) HES AT 3:00 PM CAPITOL 106
WITNESS REGISTER
GEORGE DOZIER, Legislative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 432
Juneau, Alaska 99801-1182
Telephone: (907) 465-3306
POSITION STATEMENT: Presented sponsor statement for HB 522
MATTHEW FAGNANI, President
Allvest Laboratories
611 East 12th Avenue
Anchorage, Alaska 99501
Telephone: (907) 274-6662
POSITION STATEMENT: Testified on HB 522
LYNN STIMLER, Executive Director
American Civil Liberties Union of Alaska
P.O. Box 201844
Anchorage, Alaska 99520
Telephone: (907) 258-0044
POSITION STATEMENT: Testified in opposition to HB 522
AVA GOODMAN, Owner
Goodman Builders
1240 Friendly Lane
Anchorage, Alaska 99504
Telephone: (907) 333-2410
POSITION STATEMENT: Testified on HB 522
HELEN CRAIG
613 DeGroff Street
Sitka, Alaska 99835
Telephone: (907) 747-5917
POSITION STATEMENT: Testified on HB 522
DWIGHT PERKINS, Special Assistant
Office of the Commissioner
Department of Labor
P.O. Box 21149
Juneau, Alaska 99802-1149
Telephone: (907) 465-2700
POSITION STATEMENT: Testified on HB 522
SHERMAN ERNOUF, Legislative Assistant
to Senator Tim Kelly
Alaska State Legislature
Capitol Building, Room 101
Juneau, Alaska 99801-1182
Telephone: (907) 465-3822
POSITION STATEMENT: Presented sponsor statement for SB 134
MARYLOU BURTON, Director of Statewide Budget
University of Alaska
Juneau, Alaska 99801
Telephone: (907) 463-3086
POSITION STATEMENT: Testified on SB 134 am
JOY BUNDE
3919 Turnagain, Number 10
Anchorage, Alaska
Telephone: (907) 243-5210
POSITION STATEMENT: Testified in support of SB 134 am
SHARON CLARK, Legislative Assistant
to Senator Mike Miller
Alaska State Legislature
Capitol Building, Room 125
Juneau, Alaska 99801-1182
Telephone: (907) 465-4892
POSITION STATEMENT: Presented sponsor statement for SCR 25
REPRESENTATIVE TERRY MARTIN
Alaska State Legislature
Capitol Building, Room 502
Juneau, Alaska 99801-1182
Telephone: (907) 465-3783
POSITION STATEMENT: Prime sponsor of HJR 50
ACTION NARRATIVE
TAPE 96-41, SIDE A
Number 001
The House Health, Education and Social Services Standing Committee
was called to order by CO-CHAIR CON BUNDE at 3:07 p.m. Members
present at the call to order were Representatives Bunde, Toohey,
Davis, Rokeberg, Brice and Robinson. Members absent were
Representative Vezey. He announced the calendar was HB 522, "An
Act relating to employer drug and alcohol testing programs"; SB 134
"An Act establishing an endowment for the Robert B. Atwood
journalism chair at the University of Alaska Anchorage; and
providing for an effective date"; SCR 25, Relating to supporting
home schooling and establishing Alaska Home Education Week; and HJR
50, Proposing an amendment to the Constitution of the State of
Alaska relating to freedom of conscience.
HB 522 - EMPLOYER DRUG TESTING PROGRAM
Number 130
GEORGE DOZIER, Legislative Assistant to Representative Pete Kott,
said HB 522 was sponsored by the House Labor & Commerce Committee
and is based on the premise that employers, employees and the
general public have a strong interest in workplace safety and
productivity. This bill was filed with the intention of promoting
productivity and safety by authorizing employers to institute
mandatory drug and alcohol testing programs. It is recognized that
although employees have certain privacy rights that may be impacted
by mandatory alcohol and drug testing, these rights are outweighed
by the interest of employers in promoting workplace safety and
productivity. This is especially the case where the programs
themselves are well advertised, people are aware of them and the
testing is done reasonably contemporaneously with the employee's
schedule of work hours.
MR. DOZIER said HB 522 grants immunity to employers that institute
a drug and alcohol testing program. Generally, where the employer
acts in good faith based upon the results of a test, the employer
would not be subject to civil liability for actions taken against
employees. House Bill 522 sets requirements for the programs,
principally it is required that the program be articulated in a
written policy and published to the employees and prospective
employees. It establishes certain standards of confidentiality of
results; generally, the results may not be communicated to anyone
except the employer or a designated agent of the employer, which
would be a person that has been designated as responsible for
gathering the results, to the employee and as a result of a court
order or subpoena. The written policy must be advertised and
published to the employees so they have fair notice.
MR. DOZIER stated that HB 522 also establishes certain minimal
standards for testing procedures. Already, the federal government
and the state of Alaska require approximately 53,000 workers to
undergo mandatory drug and alcohol testing. He added that other
states are starting to move in this line and as a point of fact, HB
522 was modeled directly on a statute this is now law in Arizona,
he believed. Representative Kott, given these trends in the law,
believes it is time to get the issue on the table and for dialogue
to occur in Alaska. It is recognized that HB 522 is just a first
step, a beginning step and as a result of what is presented in
testimony, certain adjustments may become desirable. He offered to
answer any questions the committee may have.
Number 418
MATTHEW FAGNANI, President, Allvest Laboratories, said Allvest
Laboratories is a provider of drug and alcohol testing services to
more than 1300 Alaskan companies. He said this type of legislation
is extremely important to many of those companies. Currently, as
Mr. Dozier stated, this legislation is in effect in the state of
Utah, which is where it originated from, it is in the state of
Florida and most recently, in the state of Arizona where Allvest
Laboratories was able to obtain a copy of their legislation and
pass it on to Representative Kott.
MR. FAGNANI said allowing an employer to be protected from
litigation would create an environment that tells Alaskan
businesses that Alaska is a state which recognizes that illegal
drugs and alcohol are not welcome in the workplace. Drug testing
is a workplace safety issue and assists management in improving
productivity and job efficiency. In Alaska today, there are more
than 53,000 Alaskans that are now part of mandatory federally
required drug testing programs. These are industries of aviation,
truckers, pipeline-regulated employees and over 1,000 commercial
driver license (CDL) holders in the state of Alaska. This
represents approximately 20 percent of the state's employed
population or 8 percent of the state population. If a person takes
into consideration that there are also companies who choose to
test, but are not federally mandated to test, the statistics would
probably double. For example, many of the major hospitals and ski
resorts are testing already. He asked why is this type of
legislation necessary? It requires employers to have a written
policy. Keeping in mind, that those companies not regulated to
test by a federal agency, do not need any type of written policy or
procedures that they follow. The federal regulation clearly
outlines that companies regulated by the federal Department of
Transportation have a written policy. It would require employers
to inform employees about their policy, such as what types of tests
are required, methods of sample collections, consequences of
refusal to test and what happens if an employee tests positive.
These are all things not currently made known to employees if the
company is not mandated to test by federal regulation because
Alaska does not any have any type of statute that requires an
employer to communicate that information. This would also allow
for standardized collection procedures, which are very important in
the collection of these samples, using testing procedures that
require an approved or certified lab which utilizes standard cutoff
procedures; use of alternative or a different chemical process to
confirm those samples that test positive, specifically gas
chromatography and mass spectrometry which is the goal standard for
the industry; and explain to employees what happens if they test
positive. These are all things that should be included in a policy
that are not currently there. He noted this legislation is
extended to those mandated by federal legislation, and employers
that choose to test voluntarily under the non-regulated testing
industry. In other words, this would be expanded to those
industries that are presently mandated to test.
Number 639
MR. FAGNANI said this legislation is also an employee protection
bill. He explained that today an employer can use almost any type
of method they choose, regardless of scientific principles, the
employer can use any type of collection procedures they deem fit,
and the employer may not have a policy that informs employees what
is required of them. This legislation offers a win/win situation
to both employees and employers. By setting state standards for
effective workplace drug and alcohol testing, the workplace will be
a safer, more productive and more efficient workplace. He urged
the committee to pass HB 522. He further added that HB 522 is
supported by the support industry group, Alliance, which represents
over 340 Alaskan businesses, primarily in the oil field, the state
of Alaska Trucking Association, and most recently, the Anchorage
Chamber of Commerce, which just passed a resolution. In addition,
he was aware that Representative Kott's office had received over
130 responses from people serviced by Allvest who felt this was an
important piece of legislation.
Number 770
CO-CHAIR TOOHEY observed that hair had been used to test for a long
history of drug abuse and asked Mr. Fagnani how long abuse could be
detected through hair.
MR. FAGNANI said it depended on the length of the hair in that it
goes through the whole duration that an individual has been growing
that hair. It was his understanding that hair testing goes in
centimeters and each centimeter represents a period of time in a
person's life that is recorded. He noted that hair testing is not
very prevalent in Alaska; it is primarily used in the banking
industry, gold mining industry and casino industry. He added that
hair testing is not one of the recommended treatments for workplace
drug testing. It does, however, show a much longer window of time.
CO-CHAIR TOOHEY said she is very much concerned that we are a very
forgiving society and treatment programs are included in contracts
for health care, which she believes are valid. She remarked our
whole society is permeated with this, and we must allow this
treatment to continue.
Number 866
CO-CHAIR BUNDE observed that an individual going through drug
treatment could get a hair cut and the evidence would go away.
MR. FAGNANI said he knew that hair testing was not being done in
Alaska at any prevalent rate. As far as rehabilitation is
concerned, it is important to keep in mind that this bill is not to
keep people from treatment; as a matter of fact, it speaks to
treatment. The Americans with Disabilities Act (ADA) comes into
effect once a person is rehabilitated. He explained that once a
person is rehabilitated for a prior drug problem, that person is
now protected under the Americans with Disabilities Act as a
disabled American. That has another whole set of provisions which
allows an employer to test based on that federal law. That is
another personnel policy that human resource persons have available
to them. He pointed out that an employee cannot be denied
employment because he/she tested positive in the past and has
corrected that problem by seeking treatment. The Americans with
Disabilities Act protects that American and allows them not to be
discriminated against.
Number 955
CO-CHAIR TOOHEY recollected there were a number of drugs on the
market used to control seizures, depression, and other conditions
and asked Mr. Fagnani how those drugs are handled in the drug
testing process.
MR. FAGNANI stated the drug program is designed to work around an
employer's perceived need of what they feel is needed to be tested.
Currently, the prevalent drugs in the workplace are limited to
five: Marijuana, cocaine, amphetamines, opiates and PCP. None of
those have anything to do with seizures and any type of medication
that is issued by a physician is considered legal drug use and is
allowed in the workplace.
CO-CHAIR TOOHEY asked if poppyseeds in a muffin would show up in a
drug test.
MR. FAGNANI responded that it could show up. Currently, there are
discussions in the federal Department of Transportation to raise
the screening level to over 3,000 nanograms to eliminate those
positive poppyseeds for opiates. Presently, a case would be
reviewed by a physician where poppyseeds resulted in a positive
test. He reiterated the importance of employer policies because if
a person is working for a company not regulated, there may not be
a medical review officer or a physician to review the test result
and help the employee determine what caused the positive test
result.
CO-CHAIR TOOHEY asked if there was a great problem in Alaska?
MR. FAGNANI said they see about a 6 percent pre-employment positive
rate. These are people who know they have to pass a drug test to
get a job. He noted they are only tracking the federally regulated
industries currently. He feels that is a pretty high rate. He
said once the programs are going and people are into the programs,
they see less than 1 percent in the random programs and even less
in the post-accident and reasonable cause. With regard to Co-Chair
Toohey's question, the Anchorage Daily News just pointed out in the
Sunday edition that crack cocaine was the drug of choice on the
street, so he felt there was a problem in Alaska, but Alaska was
pretty fortunate compared to other states.
CO-CHAIR BUNDE remarked it's also the drug for young people who
aren't in jobs involved in this program.
MR. FAGNANI said that's true, and added that one of the latest
reports released by the Partnership for Drug Free America, shows
that according to a 1995 survey, marijuana use is on the rise in
youth and youth have changed their perception from "marijuana is
bad" to now "marijuana is okay."
Number 1100
CO-CHAIR TOOHEY advised that mothers of 16 percent of newborn
babies tested positive for drugs at the two hospitals in Anchorage.
REPRESENTATIVE ROKEBERG asked Mr. Fagnani to explain the references
in the employer's policy regarding confidentiality on page 3, lines
29-31. He said, "There's a stipulation here in this prospective
statute that there be a statement regarding the confidentiality,
but that's merely a statement of what they're going to do with the
results of the test. There's no guarantee of confidentiality or is
there any direction here about what to do with -- if you find a
positive test."
MR. FAGNANI said the committee needed to keep in mind that this
document could easily be 40 pages long with "to do's", so he
thought it needed to be reviewed as a shell and each employer would
be given the opportunity to put in what they feel is necessary.
His interpretation of "the right of an employee, on the employee's
request, to explain in a confidential setting, a positive result;"
is for example, an employer wouldn't announce on a factory floor or
announce it over the public announcement system that a particular
employee had a positive drug test, but would call the employee into
a private setting and discuss the new found information. With
regard to the statement of the employer's policy regarding
confidentiality, he felt the policy needed to say that if a
positive test were to occur, an employee would be brought into a
private setting to discuss the test results and the options
available according to company policy.
Number 1199
REPRESENTATIVE ROKEBERG as a follow-up, asked about the disposition
of the information after the meeting takes place.
MR. FAGNANI said the Recordkeeping Act then comes into play, which
requires that drug test results be kept just like medical records.
He explained currently, medical records are kept in a separate file
away from regular human resource records because more people have
access to those records. Medical records on the other hand, are
already kept in a separate file in accordance with a federal law,
so the drug test results would be part of that file record keeping.
REPRESENTATIVE ROKEBERG commented that normally a firm is hired to
conduct the tests for a business, so there wouldn't be any
doctor/patient relationship that's privileged information under the
law. He asked if there was any safeguard other than the federal
statute regarding the release or dissemination of this information.
MR. FAGNANI clarified that Allvest closed their laboratory several
years ago due to liability costs and they now refer everything to
a certified laboratory outside Alaska; there are no labs in Alaska
doing this work. He went on to explain that the certified
laboratory would send the test result either via a secure modem or
fax line established between the company and the laboratory, or it
would come directly to Allvest and they would advise the company of
a forthcoming facsimile message. This is common practice being
used today in order to assure confidentiality or that the message
was sent and received by the people who need to have knowledge of
that information.
Number 1300
REPRESENTATIVE ROKEBERG said his question actually related to the
disposition of the information after it was received by the company
and asked if it was kept in a repository of medical reports in a
company file.
MR. FAGNANI replied that currently the result is kept as long as
the employee's personnel records are kept. He added that if
Allvest was setting up a program for a company, they would advise
the company to follow the federal guidelines already tested by the
Supreme Court which means the positive results would be retained
for five years, the record would be kept independent from the
personnel record and stay in a locked file in a secure area.
Number 1345
REPRESENTATIVE GARY DAVIS inquired why there was a need for this
legislation when he knew of companies that were already doing this.
MR. FAGNANI said this bill is not intended to address the right to
test, but rather eliminate the risk of a lawsuit based on a
disgruntled employee who is part of the 6 percent minority
mentioned previously that didn't pass the drug test, and hires an
attorney to dispute the drug test because he/she didn't get the
job. He told the story of a company that spent upward of five
digits on attorney fees in a case that never even went to court -
the paper was never even filed to go to court - but the attorney
felt that because the company was large enough, they would settle
out of court. That's why this legislation is needed.
Number 1410
REPRESENTATIVE DAVIS noted the bill includes the allowance to test
blood and asked how that would stand up constitutionally.
MR. FAGNANI said if he was rewriting the legislation, he would
remove that language and leave urine as the true method for
testing. Urine testing is the recognized method and the standard
in the industry; blood is used for an alcohol draw. He noted that
hair testing could be left in because it is FDA approved and is a
standardized procedure.
Number 1443
REPRESENTATIVE ROBINSON referred to page 3, lines 2-4, and asked
how this fits into the federal drug-free workplace program? Also,
she was curious why a person whose career was impacted because of
a positive test result due to poppyseeds for example, but was truly
not impaired on drugs and alcohol, shouldn't have some recourse
under this section.
MR. FAGNANI said there are two types of federal workplace policies.
The Drug Free Workplace Act of 1988, which addresses companies with
$25,000 or more in federal contracts, must have a drug free
workplace statement attesting to a drug free workplace and of
course, you really can't attest to it unless you are testing. He
further stated with regard to the federal Department of
Transportation standards, this type of legislation is not impacted
at all because it doesn't affect their policy. If anything, the
federal workplace policy goes more in detail as far as what a
company will do and sets standards that X, Y and Z will be followed
when collections are done. This legislation does not set it out as
that strict of a standard; it just indicates that a standardized
collection process will be used, which they would attest would be
the federal workplace drug collection procedures. He added if
anything, this allows the federal employers that are now federal
private employers who are testing to be protected, which they are
not currently. He noted the company he had referred to earlier was
a federally mandated test and even though the person had tested
positive twice, he was able to find an attorney to represent him.
Regarding the poppyseed issue and ruining someone's life, he
commented that Allvest tested over 30,000 samples last year from
Alaskans and in Fairbanks there were seven people on one job site
that tested positive for poppyseeds in three consecutive days; they
haven't had a poppyseed positive test since that time. He pointed
out one of the problems with poppyseeds is that it cannot be
determined which poppyseed is going to cause a positive test, but
it's the green immature poppyseed, not the cooked poppyseed. He
said if there is some concern about that, then adding the language
that positive opiates must be reviewed by a physician to rule out
poppyseeds would be a way to assure that a person was not
wrongfully accused of an opiate use. The medical review officer
who is a licensed physician, would contact the laboratory and have
a copy of the quantitative reading of the gas chromatograph. The
gas chromatograph would indicate nanograms and anything less than
3,000 nanograms would be a poppyseed, anything over 3,000 would be
a type of opiate family drug. In the six years that Allvest has
been testing, they have not had a case where a poppyseed ruined
someone's job.
CO-CHAIR BUNDE asked Lynn Stimler to present her testimony from
Anchorage.
Number 1670
LYNN STIMLER, Executive Director, American Civil Liberties Union of
Alaska (ACLU), testified the ACLU recognizes this bill as a first
step and wished to offer some suggestions. First, the ACLU really
supports Section 23.10.620(e) because it will assure uniform
applicability. It will give managers the incentive to make sure
the tests are conducted properly. She went on to state some of the
ACLU's concerns. This Act would permit the adoption of an
employer's policy that prohibits all use of alcohol by all
employees even during their off duty hours. So, an employer would
be protected from firing someone who had a few beers at a softball
game where the employer observed them. That may not be the intent
of the legislation, but that could happen in application. The ACLU
is also concerned about the Americans with Disabilities Act (ADA)
for the same reasons that were previously mentioned. The ACLU is
concerned that a disability under the ADA and someone tested for
use of alcohol might be entitled to a reasonable accommodation
before receiving any discipline. She referred to Section
23.10.600(b) and said the ACLU feels that imposes an impossibly
high burden of proof on the employee. She said the language "knew
or clearly should have" and "reckless or malicious disregard for
the truth" underline 6 to 8, when looked at in point of fact, an
employer could intentionally choose to use a testing facility that
did shoddy work and was known to have a high false positive rate
and a high rate of contaminating samples. Even so, it would be
impossible for the employee to prove that the employer knew that
any one particular result was in error because even the worst lab
will be right sometimes. She added that most employees don't have
enough money after being fired to go out and get their own drug
test. She pointed out that Section 23.10.610, page 2, line 20, is
unnecessary. Employers are already protected when giving job
references as long as they have a good faith belief in the truth of
what they say. Other than telling a prospective employer that the
employee tested positive for drugs or alcohol, there is no reason
why the employer should be allowed to give out this information.
Another concern the ACLU has is that because actions for defamation
are limited under provisions of the bill, the subject of the
defamation - the employee - could have a false positive drug test
and then if the person tested positive for marijuana, an employer
could disclose that the employee tested positive for cocaine and
still be protected from liability. In addition, the legislation
appears to leave open the possibility that the disclosure of a
false positive could be made intentionally and be protected. She
didn't believe this was the intent of the legislation, but she
thinks it is a hole that the legislation as written, flies through.
Also, the ACLU thinks that 23.10.610 and 23.10.660 contradict each
other; the bill would provide for safe (indisc.) of search and
seizures.
CO-CHAIR BUNDE said it appears that some work is needed on the
legislation and the committee will undoubtedly hold it over until
Thursday at which time a committee substitute would be introduced
in an attempt to address some of the concerns that were raised. He
asked her to conclude her testimony.
MS. STIMLER said she would fax a line-by-line analysis of the bill
from the ACLU for the committee's consideration.
Number 1904
AVA GOODMAN, Owner, Goodman Builders, testified that she and her
husband operate Goodman Builders and their business has pre-
employment testing for their seasonal crew, but for fear of
litigation they do not have a random drug screening program. She
said since instituting pre-employment testing, their accident and
workers' compensation claims have been reduced. The (indisc.)
requires that any accident involving company equipment be post-
accident tested. In these cases, the random program could have
prevented some accidents from occurring at all. This bill before
the committee could provide the necessary protection for her and
her business, as well as provide security for all employees that
their understanding of a drug screen policy is beneficial for them
as well. She urged the committee to support HB 522 and take the
steps necessary to help all Alaskan entrepreneurs continue to
operate their businesses in a safe and successful manner. She
thanked the committee for allowing her to testify.
Number 1940
REPRESENTATIVE VEZEY asked if her company owned or operated any
commercial vehicles?
MS. GOODMAN said no, they do not employ any commercial driver
license holders. They are a company that provides remodel and high
quality finishing work. She noted that part of the reason they
want to do drug testing is because they want to make sure their
employees show up for work. It is a seasonal business and she
wasn't implying the construction industry had a high prevalence for
drugs, but it was their way of letting employees know they won't
tolerate this type of activity.
REPRESENTATIVE VEZEY asked if she was aware that as of this year,
if a company has one commercial vehicle, the entire company has to
comply with the federal drug testing program.
MS. GOODMAN was aware of that, but their company doesn't operate
any heavy equipment; they are strictly a small finishing business
whose reputation demands they have high quality employees.
Number 1995
HELEN CRAIG testified via teleconference from Sitka that she had a
few concerns about HB 522 that she wanted to express to the
committee. She said the bill seems to address the issue of drugs
and alcohol in the workplace, which is good. However, it needs to
be recognized that if a person has a cold or flu, they will not be
able to take any type of medication if they intend to work that
day. The same thing is true for people with allergies and those
who take medication prescribed by doctors. She said that some
employers do not recognize this. She noted there are drivers in
her workplace that are required to periodic random testing, but
everyone in the company gets tested. She suggested there should be
differing degrees of medication depending on the type of job. She
also suggested inserting on page 7, lines 14 and 15, a listing and
the amounts that are not acceptable. She also expressed concern
that under this legislation an employer cannot be sued for
defamation of character.
CO-CHAIR BUNDE asked Mr. Fagnani if he was aware of any non-
prescription, over-the-counter cold medicines that would cause a
positive test.
MR. FAGNANI said over-the-counter medications do not interfere with
the drug test, but this is where cutoff levels are critical. He
noted that you fall out of the modern curve when quantitative
levels are set in statute. For instance, the federal Department of
Transportation just changed the marijuana rate from 100 nanograms
to 50 nanograms, which is more sensitive. Allvest found they got
one-third more positives by doing that. He said it would be better
to state that drug testing levels would meet the federal cutoff
levels, which would allow the federal government to change their
levels. He commented that the previous speaker may have been
referring to the list produced and distributed by Allvest of over-
the-counter medications that contain alcohol. Part of the federal
requirement for commercial driver license holders and pilots is an
abstinence rule before they report to work. The federal
government, under the CDL law states that any CDL holder reporting
for work to operate a commercial rig cannot consume any alcoholic
beverage four hours prior to duty. They did not quantify alcohol;
alcohol is alcohol whether it comes in a Nyquil bottle or Scope.
He thought that may be the list the previous speaker was referring
to.
Number 2224
REPRESENTATIVE TOOHEY offered the example of the young woman who
won the gold metal in the Olympics without her asthma medication as
a way of staying healthy without consuming medications containing
alcohol.
Number 2244
DWIGHT PERKINS, Special Assistant, Office of the Commissioner,
Department of Labor, said the department had some concern with a
couple of sections of HB 522 regarding the employment security. He
read the following language for the record:
"Section 2 of the bill would amend the Employment Security Act
at AS 23.20.379(a) to deny unemployment insurance (UI)
benefits to any worker who fails to pass or refuses to take
a drug or alcohol test which meets the standards in Sec. 1 of
the bill. A worker discharged for this reason would be deemed
discharged for misconduct connected with the work. This
section would affect all private employment, but would not
add any significant cost to the claim adjudication process.
It would, however, change the current standards for
adjudicating discharge cases where an employee fails or
refuses to take a drug test.
"Under AS 23.20.379(a), the department has disqualified
workers who fail or refuse a test if there is some indication
that the worker is impaired or using drugs on the job, or if
the hazards of the job make it mandatory that the employer
control even off-duty usage. But all off-duty use, even if
illegal, is not necessarily misconduct connected with work.
MR. PERKINS said it was his understanding that alcohol stays in the
system for 72 hours. Mr. Perkins continued reading his statement:
"Drug-impairment or using drugs on the job is clearly
work-connected misconduct. Many discharge cases, however,
involve off-duty use, as shown by a positive drug test. In
deciding if off-duty use is work-connected, the department
determines whether the drug use had a direct adverse impact on
the employer's interest or made the worker unfit to perform
the job.
"If an employer's rule prohibits off-duty use and is
reasonably necessary for safety reasons or required by law,
then off-duty use is misconduct, because it adversely affects
the employer's interest. Simple off-duty use with no
impairment on the job and no other adverse affect on the
employer's interest is not currently treated as work-connected
misconduct.
TAPE 96-41, SIDE B
Number 001
MR. PERKINS continued reading his statement:
"The bill would impose a blanket disqualification on all
employees, regardless of the conditions of the work or the
employer's interest in regulating off-duty conduct. It would
disqualify workers in industries and occupations in which
their off-duty conduct did not pose any significant risk to
their fellow workers or their employer's interest. In fact,
one of the standards for the testing procedure is that all
employees are subjected to the same test, regardless of job
duties. The bill blurs the distinction between on-duty and
off-duty behavior and does not allow the department to
determine whether the behavior actually harmed the employer's
interest.
"Section 3 of the bill adds the same `fail or refuse' language
to the UI extended benefits provision in AS 23.20.406(h).
This section is redundant. It is unnecessary to include any
misconduct disqualification standards in AS 23.20.406(h),
because it already disqualifies any extended benefit claimant
who was previously disqualified under AS 23.20.379. The
language in Sec. 2 of the bill is sufficient to insure the
reach of the disqualification to both regular and extended
benefit claimants."
Number 061
MR. PERKINS said the department's suggestion to help make this a
better bill would be to delete Sections 2 and 3. He offered to
answer any questions from the committee and announced that Ron
Torgerson from the Department of Labor was also available for any
technical questions.
CO-CHAIR BUNDE said he was assigning this bill to a subcommittee
comprised of Co-Chair Toohey, Representative Kott, Mr. Perkins and
Mr. Fagnani to craft a committee substitute that could be brought
before the full committee on Thursday, April 18.
REPRESENTATIVE ROKEBERG asked Mr. Perkins if the department was
concerned about a legal standard or other standards, because
Representative Rokeberg deduced from his testimony that
Commissioner Cashen condones off-duty drug use and did not want to
become involved in looking into that or any ripple effect it could
have.
MR. PERKINS assured Representative Rokeberg that Commissioner
Cashen does not condone the use of illegal drugs, but the concern
is are we stepping beyond the threshold of allowing an individual
who employs another individual to be able to manage the employee's
weekends whether it is drinking beer or using illegal drug
substances.
CO-CHAIR TOOHEY said she also had a concern with this; an illegal
behavior is an illegal behavior whether it's heroin use, cocaine
use, sexual abuse of a minor or rape - all are illegal and not
okay to do on a weekend.
CO-CHAIR BUNDE said while he doesn't condone illegal drug use, he
didn't think it was appropriate to write into legislation that
enforcement of that activity is something an employer should do.
He announced the committee would have a committee substitute on
Thursday.
SB 134 am - ATWOOD CHAIR OF JOURNALISM AT U OF AA
Number 220
CO-CHAIR BUNDE announced the next order of business was SB 134
amended. He asked Sherman Ernouf to present the bill.
Number 234
SHERMAN ERNOUF, Legislative Assistant to Senator Tim Kelly, said SB
134 acknowledges Bob Atwood's contributions to the state of Alaska,
which everyone knows his contributions to the community and the
state are immense. Senate Bill 134 honors Bob Atwood by
establishing an endowment for the Robert Atwood journalism chair at
the University of Alaska Anchorage. This chair is nationally
recognized and has been in existence for the past 15 years, due in
part by generous contributions by Mr. Atwood, himself. In fact,
Mr. Atwood's contributions to date total in excess of $1 million
and SB 134 would establish an endowment or perpetual trust which is
basically a mechanism set up so that public and private entities
could match contributions made by Mr. Atwood to permanently fund
this chair. He commented this bill did have a fiscal note on the
Senate side, in which the state would have matched Mr. Atwood's
contributions to fund the chair, but it was stripped. Even though
the bill has been stripped of its fiscal impact, placing this in
statute would allow entities to put money into the trust or the
legislature to appropriate funds at some time in the future, if so
desired. He offered to answer any questions from committee
members.
CO-CHAIR BUNDE surmised this was an empty vessel waiting to be
fulfilled.
REPRESENTATIVE VEZEY asked why a statute was needed to establish an
endowment at the university?
MR. ERNOUF said it was his understanding that it wasn't needed to
establish an endowment, but it is needed so that it is a legally
recognized endowment that at some point the legislature, other
public entities or other private entities could donate.
REPRESENTATIVE VEZEY commented the state has trust laws that
accomplish this and he knew the university had a program for
establishing endowments, trusts and scholarships. He inquired what
the advantage would be to place this in statute.
MR. ERNOUF pointed out he was not a trust attorney, but he thought
what happened was just as Co-Chair Bunde said, there was a vessel
that was full of cargo, but it was stripped of all its money. If
this is put in statute now, the state could appropriate money to
the endowment at any point in the future.
REPRESENTATIVE VEZEY asked if his assumption was correct that at
one time there was money that went with this bill?
MR. ERNOUF responded affirmatively.
Number 370
REPRESENTATIVE DAVIS commented it would appear from the discussion
that the university would be utilizing these funds. He asked if
there would ever need to be annual legislative approval for program
receipts.
Number 389
MARYLOU BURTON, Director of Statewide Budget, University of Alaska,
said in response to Representative Davis' question, they would need
an annual appropriation for university receipts, which would be
entered through the normal budget process. At this point in time,
she thought they would have sufficient authority in their FY 97
budget, if these funds were to materialize.
REPRESENTATIVE VEZEY commented the university currently has
endowments and inquired if they come to the legislature for
authorization to spend that money.
MS. BURTON responded no. She thought Representative Vezey's point
was valid in that the legislation per se is not necessary for the
university to continue the program they currently have. The intent
is to focus attention on the chair and to leave the door open for
opportunities.
Number 446
JOY BUNDE testified in favor of SB 134 amended. She obtained her
journalism degree at the University of Alaska Anchorage, and during
that course she participated in the Atwood classes. Based on her
experience, she felt the endowment allowed the university to bring
working journalists who excelled in their fields into the
journalism department. She thought the ideas brought into the
classroom by these professors were filled with real-life
experiences, fresh and on the competitive edge, unlike the stale,
outdated material some professors use to teach students about this
rapidly changing business. She concluded that this endowment
greatly benefits the state by providing graduates who are qualified
to go to work in local communities.
Number 503
CO-CHAIR BUNDE asked if there were any questions or additional
individuals to testify. Hearing none, he closed public testimony
on SB 134 amended.
REPRESENTATIVE ROKEBERG commented he was first personally
acquainted with Mr. Atwood in the early 1950s and has had an
acquaintance with him since. He made a motion to pass SB 134 am
with accompanying fiscal notes and individual recommendations.
Hearing no objection, it was so ordered.
SCR 25 - ALASKA HOME EDUCATION WEEK
Number 546
SHARON CLARK, Legislative Assistant to Senator Mike Miller, read
the following sponsor statement:
"I would like to thank the committee for allowing me to
introduce Senate Concurrent Resolution 25, which would
recognize and support home schooling and establish Alaska
Home Education Week.
"In 1987 the Alaska Private and Home Education Association
(APHEA) was founded to represent home educators throughout
the state and to promote excellence in private sector home
education. Each year the association has held annual
conventions and promoted the development of two local
support networks for home educators throughout Alaska. In
addition, the association has sponsored public information
seminars, worked to protect parents' rights to home educate
their children, and cooperated with state education officials
to ensure a broad range of educational choices for Alaska
families. Currently, the association has more than 300
(583 as of today) member families, and it is affiliated
with the National Center for Home Education.
"In 1993 Governor Hickel issued a Proclamation recognizing
the contributions of home educators to Alaska society,
initiating a process whereby the Alaska legislature can
also recognize this important segment of Alaska's
educational infrastructure.
"I would further like to recognize this valuable and
important group and ask your support of SCR 25. This
resolution would request the Governor to take whatever
steps are necessary to direct the Department of Education
and all other pertinent educational agencies not to
unnecessarily interfere with parents exercising their
right to home school their children and to establish
the week of October 13-19, 1996, as Alaska Home Education
Week.
"This resolution has a zero fiscal note."
MS. CLARK said the Department of Education has no position on this
resolution, but is not opposed to it. From a personal viewpoint,
Senator Miller is an advocate of home schooling. He and his wife,
Susan, have taught their two daughters for seven years. She
directed the committee's attention to the letters of support
contained in the committee packet and distributed a memorandum from
the Department of Education.
CO-CHAIR TOOHEY remarked that her first child was a home schooler,
however, her second child would not have been because he'd still be
in school at the age of 32. The point is that it depends on the
child and the willingness of the parent to accept the
responsibility. She wholeheartedly supported the Resolution.
CO-CHAIR BUNDE asked if there were any questions of Ms. Clark.
REPRESENTATIVE VEZEY asked if the Alaska Private and Home Education
Association had any statistics available that indicated how many
home school children are considered enrolled in the public school
system?
MS. CLARK said not that she was aware of, but offered to pursue it.
Number 738
CO-CHAIR BUNDE said as he understood it, the Matanuska-Susitna
School District has a home school program and those students are
counted as enrolles. There were some questions raised about the
legitimacy of that when it comes to the foundation formula. As far
as he knew, the vast majority of the others are considered central
correspondence students and not considered as enrolles for the
foundation formula calculation.
MS. CLARK pointed out the memorandum from the Department of
Education she had just distributed more or less sets out the
criteria for home schooling and may address the question.
Number 778
CO-CHAIR BUNDE closed public testimony and inquired as to the wish
of the committee.
Number 782
CO-CHAIR TOOHEY made a motion to move SCR 25 to the next committee
of referral with zero fiscal notes. Hearing no objection, it was
so ordered.
HJR 50 - FREEDOM OF CONSCIENCE - BILL OF RIGHTS
Number 828
REPRESENTATIVE ROKEBERG commented this bill had more referrals than
a hooker in Subic Bay.
REPRESENTATIVE TERRY MARTIN, Sponsor of HJR 50, said people may be
wondering why there was a need to address the constitutional right
of freedom of conscience. Ironically, Alaska is one of the few
state constitutions that does not guarantee freedom of conscience.
Most constitutions from the very beginning of the revolution
(indisc.) England, especially the Mayflower Compact was very clear
that freedom of conscience was a higher inalienable right than
freedom of religion. The freedom of conscience, the freedom of
religion and the exercise thereof can be found in most
constitutions. Even though Alaska is one of the newer states, the
element of the freedom of conscience was not included in the state
constitution. Members of the Constitutional Convention in 1955-
1956 have said they just did not think of it because they thought
it was a basic right and thought freedom of religion was the
priority. He commented that Russia under Stalin, guaranteed
freedom of conscience and freedom of religion, but people were not
free to exercise either one.
REPRESENTATIVE MARTIN said it is important today because of a
couple of things that have happened in Alaska. About five years
ago, a bill was introduced which basically stated that freedom of
conscience would not be used as a way of not providing services to
people that want medical help in different aspects of life. More
recently, there have been two judges who would not force a
physician or a pharmacist to give drugs to individuals who wanted
to terminate their life. The drugs had to be prescribed by a
doctor or a hospital. There were individuals who felt their
conscience would not allow this, especially since an individual
could probably take their life any time they wished. He noted that
for a long time in America we have allowed freedom of conscience as
a reason for not participating in wars, but an individual could do
something else to help their Nation such as public health service.
He noted there were a number of medics who were conscientious
objectors in the Marine Corps that went to the front line and
worked strictly in medical care.
REPRESENTATIVE MARTIN said he did not believe this was a light
matter; he felt it was superior to freedom of religion and a
person's conscience allows them to choose a religion or no
religion. He noted there were a lot of people with no religious
affiliation but are very moral in their behavior and it is their
conscience that guides them. He believes it is important to insert
this in the state constitution as an inalienable right.
Number 1054
REPRESENTATIVE ROKEBERG said he thought that medics in the Marine
Corps were Navy corpsmen.
REPRESENTATIVE MARTIN said most of them were Navy/Marine Corps, but
there were also Marines that were medics.
REPRESENTATIVE ROKEBERG asked what the effect of this would be if
there was a reinstitution of the national draft?
REPRESENTATIVE MARTIN said, "You can have your national draft, but
they honor the freedom of conscience of the individuals who then
had the choice. A lot of people had the choice of the peace corps
rather than the VietNam War or the Korean War. So, there are many
options in serving your country if society said that this was
important that everyone serves their country some way, we're not
going to force you on the front lines where you kill someone as a
conscientious objector, but you can help your country in many other
ways."
REPRESENTATIVE ROKEBERG asked if the catalyst of this happened to
be a case that came out of the Palmer District Court regarding
physicians in the Matanuska Valley hospital?
REPRESENTATIVE MARTIN said that was something that has come up
twice and it is currently in the courts. The judge ruled about a
year and a half ago that providers of medical services cannot use
conscientious objection as a reason for refusing abortion services.
He said there is an Alaskan law, but if a judge rules that the law
is unconstitutional, the next step is to make this an unalienable
right. There are a lot of nurses in the Palmer hospital who do not
want to be forced into providing or participating in abortion
services.
REPRESENTATIVE ROKEBERG asked if the decision was based on
constitutional grounds?
REPRESENTATIVE MARTIN said he didn't know for sure, but he knew the
attorneys were fighting it based on constitutional inalienable
rights. He said they bring up the law, but laws can be made one
day and changed later by another legislature. However, once an
inalienable right is put in the constitution it is a lot harder to
change. He added it's a higher level that the courts will
recognize rather than state statute.
CO-CHAIR BUNDE asked what other states have this in their state
constitution.
REPRESENTATIVE MARTIN said Massachusetts, Minnesota, plus others.
REPRESENTATIVE DAVIS noted the Alaska Constitution speaks to
freedom of religion and many of the examples provided for the
committee are under freedom of religion and explain in more detail
what that is; that's where their freedom of conscience comes in.
He said it would appear that if there was a dissertation on the
shaping of the Alaska Constitution, freedom of conscience could
very well possibly fit in under the freedom of religion section.
REPRESENTATIVE MARTIN said yes, and that's a long drawn out
process. He said that one of the first freedoms that individuals
were fighting for once they began thinking of democracy was the
freedom of conscience. The Revolution writings in the age of
enlightment mostly talk about freedom of conscience first. He
noted that part of the reason England busted up was because they
had only one religion and there were segments of the population
that did not believe that way. Consequently, they left and went to
Holland or other countries, and from Holland they came to America.
Number 1354
CO-CHAIR BUNDE asked if there was any other state that had freedom
of conscience as a separate item in their constitution.
REPRESENTATIVE MARTIN said there were a number states.
REPRESENTATIVE DAVIS asked if Representative Martin agreed that it
could already be a part of our constitution, but just not expressly
indicated.
REPRESENTATIVE MARTIN said it could be. He said as it is now, it
is in law and it has been upheld at least three different times
that freedom on conscience in the law would be recognized. Now we
see that being challenged by the courts and by the legislators,
themselves in the past. Mostly, as Judge Fabe (indisc.) said that
because medical people (doctors and hospitals) accept federal and
state monies, they must provide services for the individuals. He
said, "Palmer was the first one that everyone seemed to be picking
on, although the bigger hospitals don't provide it either; that's
where the challenge was and it was the nurses more than anything
else. It's not that they cannot get nurses; they have been able to
get nurses from other areas when in this case, abortion services
were required. Then the judge changed her opinion and said that we
did not mean the person directly responsible, but anyone who
assists and it's the nurses who have to assist and they don't want
to. They are fighting this on freedom of conscience." He
commented he had introduced this bill before that incident.
REPRESENTATIVE VEZEY was curious as to why Representative Martin
thought the problem couldn't be addressed by statute rather than
constitutional amendment.
REPRESENTATIVE MARTIN said because right now it is being challenged
by the judge, herself.
Number 1522
CO-CHAIR TOOHEY said any hospital that accepts federal funds must
perform what is deemed legal. Speaking as a nurse, she said there
has never been a time when a nurse has been asked to perform a
duty, such as an abortion or be part of an abortion clinic unless
the nurse wants to be. That decision is respected by the
hospitals, doctors and nurses. The Palmer Hospital will respect
the nurses' wishes not to participate in abortions if that is their
choice. The hospital will have to get other nurses, but there are
many nurses who believe it is a woman's right to have an abortion.
REPRESENTATIVE MARTIN said, "We did bring in the case that did go
(indisc.) the attorneys at law who are defending the nurse and
hospital on that abortion case by Judge Fabe, and they do talk
about that the law evidently used to be upheld and most judges in
the past did not go beyond that; that the law protected the nurses
rights of freedom of conscience. Now, we see that because of
federal and state monies as Judge Fabe says, they cannot use that
as a reason for refusing to provide service." He commented the
latest development in the Lower 48 is that judges are refusing to
tell a doctor or a even pharmacist in a couple of cases that they
will provide the prescription to terminate someone's life.
Number 1686
REPRESENTATIVE BRICE said, "Given that there's a high level of
sensitivity, I guess, towards the ideas that you're talking about
with a conscientious objection, and given that what we've seen in
Montana with the Freemen Movement and that type of stuff, where
people feel that their objections to rule under a sovereign state
is basically saying that they're not party to those laws, I would
see this as basically validating their actions and allowing them to
...Well, let's put it in very basic terms, BP, Exxon and ARCO say,
you know, I conscientiously object to paying taxes any longer.
According to this, although you do say individual and they might be
considered something else, how is that going to work into this?
How do we deal with the idea of society, and being a member of that
society and being required to act within certain parameters, if
we're going to participate in that society versus, you know just
basically willy nilly going off spinning out into some type of void
claiming conscientious objection."
REPRESENTATIVE MARTIN said this is the thing that is always the
challenge through an open society like ours that you will
constantly come into one person's feeling that his/her conscience
allows them to terminate the life of their child. He said the next
step is when you come into conflict with another individual's
rights. He said, "Your right to freedom to swing your hands and
your arms ends at my nose."
REPRESENTATIVE BRICE said that is not the issue he was raising.
The issue being raised is as a member of society, there are certain
rules that we all have to follow. There are only two things
guaranteed in this life: Taxes and death. He questioned as a
property taxpayer of a municipal ordinance, could he be granted
immunity from prosecution under the passage of this resolution if
he did not pay property taxes. In other words, he conscientiously
objects to the concept of property taxes and refuses to pay them.
He noted that's what this legislation says.
REPRESENTATIVE MARTIN noted there have been many people throughout
the history of America that have refused to pay taxes or
participate in government. There are society limitations on what
one's individual conscience can be, especially in relation to
depriving another individual of their rights and freedom to talk
and sing, among other things; also, of how an individual
participates within society itself. That is why we have courts.
The courts say it is evenly applied to all citizens to pay for
services that government offers. You have a right to argue with
local government that the tax is too high or too low, etc.
REPRESENTATIVE BRICE interjected that Section 25 of HJR 25
specifically grants him the right not to pay those taxes.
REPRESENTATIVE ROBINSON noted that much of the discussion had
centered on medical procedures and she was curious about a
situation where there could be one doctor and one nurse in a rural
area, and someone's life is dependent upon those two individuals,
yet one of those individuals does not believe in that procedure.
She asked if it was Representative Martin's belief that one of
those people could make the decision not to perform a lifesaving
procedure because they don't agree with the procedure?
REPRESENTATIVE MARTIN said this is what every doctor and nurse goes
through all the time. He noted that as time goes on more and more
hospitals will choose to specialize in certain areas such as death
with dignity and there will be doctors, nurses and other providers
who will be allowed to give those prescriptions. That is a
conscience decision. Most individuals in Juneau go to Tacoma for
abortion services. He didn't know if it was the choice of the
hospital or the doctors in Juneau not to perform that procedure.
He didn't know how it was worked out with the individuals in the
smaller communities.
TAPE 96-42, SIDE A
Number 001
CO-CHAIR BUNDE said he was not anxious to address constitutional
amendments without a lot of study and discussion, but noted there
were a number of committee referrals.
REPRESENTATIVE DAVIS believed the comments about the Freemen were
good as they relate to this issue and he personally felt this could
open up pandora's box. In his opinion, the founders of the state
Constitution were right in phrasing it like they did.
REPRESENTATIVE MARTIN thanked the committee for hearing this bill.
He commented this was the first time in six or eight years that a
committee even had courage enough to bring it up for discussion.
Number 119
CO-CHAIR BUNDE closed public testimony. He asked for the wish of
the committee.
Number 127
REPRESENTATIVE VEZEY made a motion to move HJR 50 from committee
with individual recommendations. Co-Chair Toohey objected.
REPRESENTATIVE DAVIS noted that he would vote to move HJR 50 out of
committee only because it generates a lot of interesting and
important discussion.
CO-CHAIR BUNDE asked for a roll call vote. Voting in favor of the
motion were Representatives Davis, Vezey and Bunde. Voting against
the motion were Representatives Brice, Robinson and Toohey.
REPRESENTATIVE MARTIN asked if the committee would reconsider the
motion when Representative Rokeberg returned.
CO-CHAIR BUNDE said Representative Martin could discuss it with
Representative Rokeberg and if he cared to bring it up for
reconsideration, Co-chair Bunde would entertain the motion.
ADJOURNMENT
CO-CHAIR BUNDE adjourned the meeting of the House Health, Education
and Social Services Committee at 4:43 p.m.
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