Legislature(1995 - 1996)
04/24/1996 01:37 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 24, 1996
1:37 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Cynthia Toohey
Representative Al Vezey
Representative Bettye Davis
Representative Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE BILL NO. 320
"An Act increasing the number of superior court judges designated
for the Third Judicial District to provide an additional superior
court judge at Dillingham."
- PASSED OUT OF COMMITTEE
CS FOR SENATE BILL NO. 296(JUD)
"An Act requiring criminal background checks before certain persons
may be employed in a nursing home or assisted living facility; and
prohibiting the hiring or retention of certain nursing home and
assisted living facility employees convicted of specified
offenses."
- PASSED HCS CSSB 296(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: SB 320
SHORT TITLE: NEW SUPERIOR COURT JUDGE FOR DILLINGHAM
SPONSOR(S): FINANCE
JRN-DATE JRN-PG ACTION
03/29/96 2967 (S) READ THE FIRST TIME - REFERRAL(S)
03/29/96 2968 (S) JUDICIARY, FINANCE
04/10/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
04/10/96 (S) MINUTE(JUD)
04/11/96 3149 (S) JUD RPT 5DP
04/12/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/15/96 (S) RLS AT 6:30 PM FAHRENKAMP RM 203
04/15/96 (S) MINUTE(RLS)
04/15/96 3240 (S) FIN RPT 6DP 1NR
04/15/96 3240 (S) FISCAL NOTE TO JUD & FIN RPTS
(COURT)
04/18/96 3359 (S) RULES TO CALENDAR 4/18/96
04/18/96 3361 (S) READ THE SECOND TIME
04/18/96 3361 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/18/96 3361 (S) READ THE THIRD TIME SB 320
04/18/96 3361 (S) PASSED Y19 N- E1
04/18/96 3368 (S) TRANSMITTED TO (H)
04/19/96 3873 (H) READ THE FIRST TIME - REFERRAL(S)
04/19/96 3873 (H) JUDICIARY, FINANCE
04/24/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 296
SHORT TITLE: NURSING HOME & ASSTD LIVING EMPLOYEES
SPONSOR(S): SENATOR(S) ELLIS
JRN-DATE JRN-PG ACTION
02/12/96 2385 (S) READ THE FIRST TIME - REFERRAL(S)
02/12/96 2385 (S) JUDICIARY
04/15/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
04/15/96 (S) MINUTE(JUD)
04/16/96 3260 (S) JUD RPT CS 5DP NEW TITLE
04/16/96 3260 (S) ZERO FN TO CS (DHSS)
04/16/96 3260 (S) ZERO FN TO CS (DPS)
04/17/96 (S) RLS AT 2:55 PM FAHRENKAMP RM 203
04/17/96 (S) MINUTE(RLS)
04/18/96 3359 (S) RULES TO CALENDAR 4/18/96
04/18/96 3360 (S) READ THE SECOND TIME
04/18/96 3360 (S) JUD CS ADOPTED UNAN CONSENT
04/18/96 3360 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/18/96 3360 (S) READ THE THIRD TIME CSSB 296(JUD)
04/18/96 3361 (S) PASSED Y18 N- E1 A1
04/18/96 3368 (S) TRANSMITTED TO (H)
04/19/96 3873 (H) READ THE FIRST TIME - REFERRAL(S)
04/19/96 3873 (H) JUDICIARY
04/24/96 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KELLY HUBER, Legislative Assistant
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801-1182
Telephone: (907) 465-4958
POSITION STATEMENT: Presented SB 320
DEAN GUANELI, Chief Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified in support of SB 320
ART SNOWDEN, Administrative Director
Office of the Administrative Director
Alaska Court System
303 K Street
Anchorage, Alaska 99501-2084
Telephone: (907) 264-0547
POSITION STATEMENT: Testified in support of SB 320
DAVE BOUKER, Mayor
City of Dillingham
P.O. Box 241
Dillingham, Alaska 99576
Telephone: (907) 842-5433
POSITION STATEMENT: Testified in support of SB 320
GINGER BAIM, Director
Safe and Fear Free Environment
P.O. Box 94
Dillingham, Alaska 99576
Telephone: (907) 842-2320
POSITION STATEMENT: Testified in support of SB 320
BRENT MOODY, Chief of Police
City of Dillingham
P.O. Box 869
Dillingham, Alaska 99576
Telephone: (907) 842-5354
POSITION STATEMENT: Testified in support of SB 320
SENATOR JOHNNY ELLIS
Alaska State Legislature
Capitol Building, Room 9
Juneau, Alaska 99801-1182
Telephone: (907) 465-3704
POSITION STATEMENT: Prime sponsor of SB 296
CONNIE SIPE, Director
Division of Senior Services
Department of Administration
3601 C Street, Suite 310
Anchorage, Alaska 99503-5984
Telephone: (907) 563-5654
POSITION STATEMENT: Answered questions on SB 296
KATHLEEN STRASBAUGH, Assistant Attorney General
Governmental Affairs Section, Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on SB 296
BOBBIE WATTS
1527 Columbine
Anchorage, Alaska 99508
Telephone: (907) 277-1696
POSITION STATEMENT: Testified in support of SB 296
ACTION NARRATIVE
TAPE 96-58, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:37 p.m. Members present at the call to order were
Representatives Porter, Green, Bunde, Toohey, Vezey, B. Davis and
Finkelstein. A quorum was present to conduct business. Chairman
Porter noted there were two bills before the committee for
consideration.
SB 320 - NEW SUPERIOR COURT JUDGE FOR DILLINGHAM
Number 100
CHAIRMAN PORTER asked Kelly Huber from Senator Halford's office to
present SB 320.
KELLY HUBER, Legislative Assistant to Senator Rick Halford, said SB
320 was introduced by the Senate Finance Committee and it addresses
a need in the Dillingham area and surrounding areas which would
place a superior court judge in the Third Judicial District with
the intent that the judge would be placed in Dillingham where the
infrastructure is already in place. She noted that Dean Guaneli
from the Attorney General's office was present to address any
specific concerns the committee may have.
CHAIRMAN PORTER noted for the record that Representative Ivan Ivan
was in attendance.
Number 172
DEAN GUANELI, Chief Assistant Attorney General, Criminal Division,
Department of Law, testified the Department of Law supports SB 320.
They believe the proper way to bring criminal justice services to
an area is to bring a whole range of those services and that
includes a superior court judge which would also be able to convene
a grand jury, a prosecutor which will be installed in the area if
a judge is provided there, and he believed there was already a
public defender in Dillingham. He said if one of those segments is
missing, particularly the judge, it makes it very inefficient for
the other components of the justice system to operate. It means
they have to wait for a judge who comes to the area from Anchorage
and then returns to Anchorage and there's very little that can be
done other than by telephone or by flying to Anchorage. At one
time, there was a district attorney in Dillingham and that person
spent a good portion of time in Anchorage which was quite costly in
addition to being quite inefficient. The department believes this
is the right way to do it and supports this legislation. He
offered to answer questions from committee members.
Number 264
REPRESENTATIVE CON BUNDE asked Mr Guaneli if he thought this would
have an impact on the incredibly high level of preemptions that
exist with judges in rural areas. He recognized that was a
separate problem but wondered if this legislation would have an
impact or a change.
MR. GUANELI said he honestly didn't know whether it would have an
impact. He thought that in most rural areas where there is a judge
who resides in the community and understands the community's
concerns, the preemptory challenges tend to go down because the
defense attorneys and prosecutor are familiar with that judge,
understand the way that judge does business and are accustomed to
working with that judge. He thought it was a little different when
a different judge comes out to the area on every occasion and the
attorneys are not accustomed to working with that judge or the
client might be unfamiliar with that judge. He thought it might
very well have a tendency to drop the number of preemptory
challenges.
Number 348
REPRESENTATIVE BUNDE said he was pleased to hear that and hoped
that goal could be achieved.
CHAIRMAN PORTER asked if committee members had additional questions
for Mr. Guaneli. Hearing none, he called on Art Snowden to
testify.
Number 368
ART SNOWDEN, Administrative Director, Office of the Administrative
Director, Alaska Court System, testified that obviously the
judiciary supports this piece of legislation. He said currently,
they are using Anchorage judges and the Anchorage courts are
terribly backed up with the increase in violence. Sending judges
out to the Chain area for one week a month significantly reduces
their ability to handle Anchorage (indisc.). In his view there
have been occasions where the prosecutors have declined to
prosecute a bad check case, for example, or something of that
nature in the Aleutian Chain because of the resources that would
have to be expended to go out there and try it. He believed there
had been an unequal level of justice in that area and this
legislation would solve that problem. Also, he noted this region
has a high number of fish and game related cases coming out of
Bristol Bay and the Naknek area and he felt it would be good to
have a judge there who was familiar with these issues instead of
rotating judges into the area time and time again. He said
generally, it has been the judiciary who has led them into rural
Alaska and other places. In this instance, the legislature over
time has built a court house in Dillingham, created a prosecutor
position in Dillingham, created defense services in Dillingham; in
other words everything is there and it would serve the whole
criminal justice system in a beneficial manner if a judge could be
located in Dillingham. Therefore, the court system supports SB
320. He offered to answer questions.
CHAIRMAN PORTER announced there were three people wishing to
testify from Dillingham.
Number 496
DAVE BOUKER, Mayor, City of Dillingham, testified in support of SB
320. He noted the people of Dillingham anticipated having a judge
appointed approximately 16 years ago, but as it turned out a judge
was never appointed but they did have a district attorney for about
10 years he thought. That office was closed due to financial
concerns. In the meantime, the population of Dillingham has almost
doubled and it seems as if the crime rate has increased
substantially. One of the overwhelming things that came out during
the hearings held in Dillingham a few weeks previously was there
seemed to be an unreasonably high number of cases being dismissed
which sends a negative message. With that in mind, the local
citizens are really concerned. He thanked the committee for giving
him the opportunity to testify.
Number 672
GINGER BAIM, Director, Safe and Fear Free Environment, testified
that the Safe and Fear Free Environment organization is the local
domestic violence and sexual assault victims service agency which
is located in Dillingham and serves all the Bristol Bay region.
She testified in support of SB 320 and said it has been a long time
coming. The area is in desperate need for better criminal justice
and prosecution services and the only way to get that is to have a
superior court located there. As had been pointed out previously,
even though the legislation speaks of locating the superior court
in Dillingham, the superior court will service the entire Bristol
Bay region which includes 32 villages and is an area roughly the
size of the state of Ohio, as well as part of the Aleutian/Pribilof
region. She directed the committee's attention to a letter of
support contained in the bill packet from the Bristol Bay Native
Association, the Bristol Bay Native Corporation, the Bristol Bay
Area Health Corporation, the Bristol Bay Housing Authority and the
Bristol Bay Economic Development Corporation. She said the letter
is just one reflection of the strong and widespread support of the
superior court for the region. She noted that one of the things
that sparked their request for a superior court in Dillingham was
a recent compilation of statistics showing that regionwide, they
have about a 20 percent dismissal rate. There are about 850
misdemeanor charges filed in the Bristol Bay region each year and
about 20 percent of those are dismissed. In the Dillingham area
where the majority of those cases are filed, there is a 30 percent
dismissal rate. That means that if a person commits a crime in the
Dillingham area and is caught and arrested, there is a one in three
chance the case will just go away and the person will never be held
accountable or brought to justice. Clearly, this is a concern
because of her work in the domestic violence field. She has seen
numerous assault charges be dismissed.
MS. BAIM said they've also had significant problems of delayed
arrests with serious cases because of the inability to call a grand
jury together and meet the time limit under the law. There have
been times when an individual has committed a serious felony and is
walking the streets for days or weeks before being picked up. She
urged the committee to support SB 320 for all these reasons and
more.
CHAIRMAN PORTER called on Brent Moody to present his testimony on
SB 320.
Number 883
BRENT MOODY, Chief of Police, City of Dillingham, thanked the
committee for giving him the opportunity to testify on SB 320. He
said this judgeship is extremely important to improving the quality
of the criminal justice system in Dillingham. It simply will
multiply in a lot of different areas the quality of service the
police department can provide to the citizens of Dillingham. He
echoed the comments of Mr. Snowden and Mr. Guaneli.
CHAIRMAN PORTER thanked Chief Moody for his testimony. He asked if
there was anyone else wishing to testify on SB 320. There being
none, he closed public testimony. He noted that he sits on the
budget subcommittees for the court system and the Department of Law
and this position and attending supporting positions have been
discussed at length and he supported the legislation.
Number 978
REPRESENTATIVE BUNDE made a motion to pass SB 320 out of committee
with individual recommendations and attached fiscal notes. Hearing
no objection, SB 320 moved from the House Judiciary Committee.
SB 296 - NURSING HOME & ASSTD LIVING EMPLOYEES
Number 1006
CHAIRMAN PORTER said the next bill for consideration was SB 296
concerning the fingerprinting of employees with certain functions
within the state. He asked Senator Ellis to present his bill.
Number 1019
SENATOR JOHNNY ELLIS, Sponsor, thanked the committee for hearing SB
296. He said that federal law in 1994 entitled the "Violent Crime
Control and Law Enforcement Act" strongly encouraged all the states
to implement criminal background checks for those employers to
learn beforehand an individual applicant's fitness to care for the
safety of children, the elderly or individuals with disabilities.
He pointed out that states have done a relatively decent job in
protecting children. There are some cases that still occur, but
there are adequate laws in place and criminal background checks.
However, for individuals who work in nursing homes or assisted
living homes - state licensed facilities - with vulnerable adults
whether they be elderly, mentally incapacitated or developmentally
disabled, there is no statute requiring this, even though
regulations are in place. This bill proposes to require a criminal
background investigation including a fingerprint check of the
records of the Federal Bureau of Investigation (FBI) as a condition
of employment in those two types of facilities. Additionally, SB
296 meets the constraints of the FBI for privacy and other
procedures and legal considerations. Accommodations have also been
made for the Division of Senior Services for this to work as best
it can programmatically. In other words, the regulations the
Division of Senior Services currently have in place will be adopted
into the statute and also there is some leeway allowed in the
legislation of the crimes covered and the job classes covered. For
example, he didn't want a statute in place that was so strict that
would preclude a grounds keeper at a nursing home from having that
job because he/she had a driving while under the influence
conviction several years earlier, had paid their debt to society
for the conviction and didn't come into direct contact with the
patients anyway. On the other hand, if that same grounds keeper
had been convicted of rape in previous years and applied for a job
inside the facility to provide direct care to a vulnerable adult,
the information would be known in advance and the individual would
be precluded from direct contact. He noted that was the basis
behind this legislation and some of the flexibility that has been
built in.
Number 1180
REPRESENTATIVE CYNTHIA TOOHEY asked why there was a zero fiscal
note for this legislation?
SENATOR ELLIS deferred that question to the Department of Public
Safety.
CHAIRMAN PORTER noted that representatives from the Department of
Law and from the Division of Senior Services were available to
answer questions. He invited them to come forward.
Number 1212
CONNIE SIPE, Director, Division of Senior Services, Department of
Administration, said no one from the Department of Health & Social
Services was in attendance to testify, but she thought she could
speak for them on their fiscal note. She stated that in assisted
living homes which used to be known as adult foster homes and
larger congregate care facilities, FBI fingerprint background check
has been going on for some years by the regulations for (indisc.)
in family/youth services and now by the assisted living regulations
promulgated and enforced by the Division of Senior Services and by
the Division of Mental Health & Developmental Disabilities. She
explained how the process works is the cost is all borne by the
employer or by the potential employee. The employee finds a
provider, usually now for pay, who rolls prints and the employer or
employee depending upon the facility, pay the money by check
written to the Department of Public Safety who has their receipts
authority, and that's the cost that covers both the cost at the
Department of Public Safety for the state background check and an
additional cost to be sent in to the FBI for that check.
Therefore, there is no additional cost to the state agencies.
Number 1295
REPRESENTATIVE GREEN asked Ms. Sipe if she envisioned this being
utilized as was discussed that the fingerprinting would determine
if there was a record and what kind of record; e.g., some sort of
violence as opposed to a passive record. It wouldn't automatically
exclude someone, but rather it let's the employer know what the
individual's background is.
MS. SIPE thought the intent of the sponsor was that through
regulations, the licensing agencies would set up types of crimes
and classes of employees. For instance, you wouldn't want someone
who had embezzled funds working in the front office on patient
accounts. She noted the current regulations for assisted living
are more absolute and they have been advised by the Department of
Law that they should work to more specifically relate the type of
offense to the type or class of job. That will have to be done by
regulation and the sponsor has brought forward some amendments that
make sure the regulations currently in effect stay in place until
the new regulations are implemented. She clarified for the
committee that there is no fingerprint background check currently,
except voluntarily, for nursing homes.
Number 1400
REPRESENTATIVE TOOHEY asked Ms. Sipe if the legislation allowed
some discretion in deciding who would be fingerprinted and go
through a background check. She assumed that doctors, nurses,
physical therapists and those types of individuals who work for pay
in an assisted living facility would be checked.
MS. SIPE referred to Sections 1 and 2, Criminal Background Check
For Employees which state, "...the individual who is employed in a
paid position..." She said, "This bill, as I see it, allows the
regulating agencies to also impose broader categories. For
instance, in assisted living homes, we have in regulations unpaid
members of families because in adult foster type homes, you have
the husband, you have the 18-year-old son, the 23-year-old son, and
we have used a broader definition care giver which I believe this
bill still gives us authority. This is not a restriction on us
getting to other care providers or someone who is a contract
employee who is regularly in contact with those providers, we could
by regulation require background checking. Whether we could
require each resident to have their doctor fingerprinted before the
doctor could come make a house call, I don't think we could do."
REPRESENTATIVE GREEN deduced this bill only deals with employed
individuals.
REPRESENTATIVE TOOHEY asked if that included nurses, physical
therapists and individuals of that nature?
CHAIRMAN PORTER interjected, "If they are employees of that
particular facility."
REPRESENTATIVE TOOHEY asked if there was any leeway?
Number 1505
KATHLEEN STRASBAUGH, Assistant Attorney General, Governmental
Affairs Section, Civil Division, Department of Law, pointed out
that both the types of physicians covered in the introductory
section and the types of crimes covered in Section (c) of each of
the two bills are subject to regulation to ensure that it is
related to that individual's job and the crime has to be related to
what they do. In other words, this was an improvement made by the
sponsor to make sure it is narrowly tailored to meet the needs of
the residents of these homes without sweeping too broadly.
REPRESENTATIVE TOOHEY expressed concern with this because in a
situation where a young nursing student employed at a home while
going through school would be given a background check because
she's in that category which is probably fine. However, she was of
the opinion that if a background check was going to be done on one
employee, then it should be done on all employees.
MS. SIPE said that all employees would be required to have a
criminal background check. The regulations would sort out things
like employees of Providence Extended Care working in an accounting
building two blocks down the street, they would get fingerprinted
but the emphasis would be on financial type crimes.
Number 1600
REPRESENTATIVE BUNDE said his question about an individual working
as a grounds keeper had been answered. However, he believed there
were too many cases of predators working around the facility and
getting access to patients. He was comforted that everyone would
go through a background check.
Number 1643
BOBBIE WATTS testified via teleconference from Anchorage in memory
of her father-in-law, Paul Watts. She said that SB 296 requires a
name check criminal history before assisted living homes and
nursing facilities can hire an individual. A fingerprint
background check is required after employing an individual. She
was encouraged that the legislature was taking active steps to
protect the state's elders from criminals. In July 1995, she went
to work in Anchorage in what is now termed an assisted living home.
She worked there until September 1995 and was never required to
submit to a name check criminal history. Had she continued her
employment, she doesn't believe she would have been required to
submit to a fingerprint background check either since no one
mentioned that requirement to her at any time during her
employment. So although state regulations require assisted living
homes to clear their employees in this manner and those same state
regulations have been in effect since July 1, 1995, it is clear to
her that it is neither being followed nor enforced. She hoped this
added attention to the need for criminal history clearance would
change the situation in the near future. She noted that as an
untrained worker in an assisted living home, she was asked to
administer strong psychotropic drugs to several elderly residents.
Specifically, she was asked to mix Haldol in residents' food which
she refused to do. However, several other untrained personnel did
not refuse. This, too, was against state assisted living
regulation. She asked committee members to imagine the danger to
the state's elder residents when assisted living homes can
unknowingly hire convicted criminals and allow those criminals to
administer potentially deadly drugs to the elderly. She remarked
this scenario is alarmingly possible. By placing the requirements
for name and fingerprint check in statute rather than in regulation
where it is subject to waiver, she believed a potentially dangerous
situation will be corrected. She thanked committee members for
allowing her the opportunity to testify.
Number 1760
REPRESENTATIVE TOOHEY asked Ms. Watts where and when she was
requested to mix Haldol with food.
MS. WATTS replied that unfortunately, the owner of the home was not
available to defend himself, so for now she would rather not say
where it was. However, the time frame was about August 1995.
CHAIRMAN PORTER asked if anyone else wished to present testimony on
SB 296. Hearing none, he closed public testimony. He noted there
was an amendment under consideration.
REPRESENTATIVE BUNDE moved Amendment 1 for discussion purposes.
Representative Green objected for discussion.
CHAIRMAN PORTER asked Ms. Strasburgh to speak to Amendment 1.
Number 1800
MS. STRASBURGH said the source of the amendment is as follows:
"During the testimony in Senate Judiciary, one of the main things
that I talked about was a concern that we had about trying to apply
this to current employees who might be covered by collective
bargaining agreements or who had been performing perfectly well.
The previous language suggested that they might get terminated.
After it got all the way through and we had a little more time to
reflect on the language - this kind of shot out of the starting
gate real fast - it occurred to me and I discussed this with Ms.
Lauterbach that the language that we had retained might allow that
to continue to happen because it uses the words "hire or retain."
Now what that was designed to do was to allow you to terminate
somebody after you hired them during this transitional period while
you're waiting for the results to come back and we put this other
in here -- not terminating existing employees whose performance has
been satisfactory in order to -- in other words, made an effective
date for it so that we didn't run into problems. I see this as
more of a problem for government employees than it is for private
homes, although -- and that's because you have to have just cause
and I don't think that if someone is performing that you'd really
be able to meet a just cause standard. However, the Alaska Supreme
Court in the Ludkeky (sp) case which some of you may have heard of
- it's a big employment case about the duty of good faith and fair
dealing - explores the motives and behavior of private industry
looking for the same things it looks for in government industry
with respect to job relatedness -- that was a drug testing case.
But in point of fact, this could also pose problems for private
industry as well as public facilities. And the other thing to
mention is there are other public facilities besides the pioneers'
homes. For examples, municipalities often run the hospitals who
have small extended care facilities, so there are more government
employees involved in this than you might think. At any rate, this
ties those two problems up very well and as someone else pointed
out, it also has a transitional phase which allows the regulations
that are now in existence to continue until -- you know, continue
to protect people until we have a chance to get these other
regulations in, which there is certainly a strong will to do but
you know, there is a lag and that will take care of that. But the
timing on it is -- this has all been testified about but we just
kind of didn't quite grab the bull by the horns language-wise until
a little later."
CHAIRMAN PORTER asked if the sponsor, Senator Ellis had any concern
about the amendment?
SENATOR ELLIS responded he did not.
Number 1919
REPRESENTATIVE GREEN said, "This is more just as a clarification.
If you have an employee who made an application after this bill
became effective even with this clause in there, would not be
acceptable but the problem that they -- the reason that they failed
is exactly the same as an employee who has a satisfactory 6-month
or one-year history, is there a crack in the armor there for ACLU
to make all kinds of problems?"
MS. STRASBURGH quoted Oliver Wendell Holmes, "Things have to have
a starting and ending date." She didn't think there was a dramatic
equal protection problem if the regulating agencies craft their
choices so that the choice is job related. In other words, she
thought that was where the protection was for the future. She
thought this would stand muster; it was rationally based,
legitimate exercise of the police power and if the agencies do
their jobs properly, there shouldn't be too much complaint about
it.
Number 1988
CHAIRMAN PORTER commented the general rule is if you set new
standards for new people, you're generally alright. If you change
the rules for (indisc.-coughing) generally not. Chairman Porter
noted there was a motion and objection to Amendment 1 and asked if
the objection was maintained?
REPRESENTATIVE GREEN replied no.
Number 2000
REPRESENTATIVE VEZEY commented it appeared to him this amendment
says that if a person is a member of a collective bargaining unit,
this law doesn't apply as long as that agreement is in effect. He
thought it watered down the intent.
MS. STRASBURGH said a new collective bargaining agreement would
have to contemplate that the law now requires this as a job
qualification. The other thing is that there is a limit to the
collective bargaining impact on the job descriptions. She noted
the state had won a case some time ago that said it is a permissive
subject of bargaining; that the manager (indisc.-coughing) state
and government under the merit system principals does have a right
to set the criteria for job applications. Also, all of the
collective bargaining agreements contemplate there will be changes
in the law. It has been the Department of Law's experience
however, that we get in trouble if we don't bargain about the
effects of the new law. She noted the state was found guilty of an
unfair labor practice when they imposed a change in the law on
maintenance and cure versus worker's compensation. She said, "And
the other thing is, it does the same thing that applying it to new
employees does - it prevents someone from making an impairment of
contracts (indisc.), but once the new one is in effect, everyone
knows that those requirements apply to everyone and also that the
new collective bargaining agreement is subject to that requirement
to the extent you're bargaining about job requirements." She added
that if someone is applying for a new job who is a current
employee, they would also be subject to this in her view.
Number 2086
REPRESENTATIVE VEZEY said the point is that the amendment creates
two classes of citizens. Those that are covered by collective
bargaining are not subject to this law; those that aren't, are
subject to this law.
MS. STRASBURGH said the intent was for an existing collective
bargaining agreement not to be changed by this law, but that
doesn't mean a new one won't be covered.
REPRESENTATIVE VEZEY pointed out that under an existing collective
bargaining agreement, there will be two classes of citizens. Those
covered by this law and those who aren't.
MS. STRASBURGH responded yes, just like there are new applicants
and she felt there was a rational basis for that.
Number 2120
CHAIRMAN PORTER said paragraph (a) applies to persons hired before
the effective date of the Act, whether they are or are not a member
of a union.
MS. STRASBURGH agreed. She added, "And then it can't be construed
to modify an existing collective bargaining agreement."
REPRESENTATIVE VEZEY pointed out it also includes the word "and".
CHAIRMAN PORTER recognized the use of the word "and" but to him
that didn't change the effect on persons regardless of their union
affiliation.
MS. STRASBURGH said the same requirement will apply to everyone...
CHAIRMAN PORTER stated it could just as well read, "Cannot be
construed to modify a collective bargaining agreement or any other
form of employee agreement."
MS. STRASBURGH noted "or any other employee contract." She said
it's trying to cover all the bases but if it doesn't say that, it
lacks instructive value for the managers of the collective
bargaining agreement as to whether they can change the agreement or
not.
CHAIRMAN PORTER asked if there were other questions regarding
Amendment 1.
REPRESENTATIVE VEZEY noted it does bring up a point that he thought
was a real dichotomy in some of the court rulings which is that any
citizen is immediately subject to any laws that become law. He
said there seems to be an exception if there is a collective
bargaining agreement involved, which to him was a real dichotomy in
itself that needed to be addressed.
Number 2180
CHAIRMAN PORTER commented that if the effect is wages, benefits and
working conditions, yes Representative Vezey was right.
MS. STRASBURGH said an existing contract which is subject to the
impairment clause; it's a constitutional problem.
Number 2195
REPRESENTATIVE TOOHEY said it does then cover the people that are
already under the contract; they will have to be checked.
MS. STRASBURGH noted that a new collective bargaining agreement
will be subject to this. She thought that in most cases, new
applicants will be required to do this whether or not they are
subject to a collective bargaining agreement. There may be the odd
collective bargaining agreement that sets out the job conditions;
that would certainly not be the case in ours because the state as
an employer has the right to modify job descriptions. She couldn't
speak for all collective bargaining agreements that cover all
nursing and assisted living facilities, but she thought the actual
affect of this was going to be that new applicants would all be
treated the same regardless of where they are.
Number 2236
REPRESENTATIVE TOOHEY cited an example of a sex abuser working in
a nursing home for three years and asked if they would have to be
checked under this legislation?
MS. STRASBURGH replied no.
REPRESENTATIVE TOOHEY said her problem was that they were allowed
to stay on the job with or without a union.
MS. STRASBURGH noted that if their performance is such that they're
mistreating the patients, they could be gone for other reasons.
She said, "If they have a record but their performance is alright,
you're going to run into trouble, Mr. Chairman, if you try to
unload everybody that has a bad sheet and there's no performance
problem." She said that was one of the things they were concerned
about.
Number 2277
REPRESENTATIVE BUNDE said that clarified the point he wanted to
make. If there's a problem with a potential abuser who is
currently employed, they will stay there as a potential abuser
until the contract changes.
CHAIRMAN PORTER asked if there were other questions or objections
to Amendment 1. Hearing none, Amendment 1 passed.
Number 2303
REPRESENTATIVE BUNDE made a motion to pass CSSB 296(JUD) amended,
with individual recommendations and attached fiscal notes. Hearing
no objection, HCS CSSB 296(JUD) passed from the House Judiciary
Committee.
ADJOURNMENT
CHAIRMAN PORTER announced there was a 50/50 chance this would be
the last meeting of the House Judiciary Committee. He thanked
committee members for their participation. There being no further
business to come before the committee, CHAIRMAN PORTER adjourned
the meeting at 2:23 p.m.
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