Legislature(1997 - 1998)
04/29/1998 01:00 PM House JUD
| Audio | Topic |
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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 29, 1998
1:00 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE JOINT RESOLUTION NO. 42(FIN)
Proposing an amendment to the Constitution of the State of Alaska
relating to marriage.
- MOVED CSSJR 42(FIN) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 323(FIN) am
"An Act relating to sexual offenses, to those who commit sexual
offenses, and to registration of sex offenders; amending Rule
6(r)(2), Alaska Rules of Criminal Procedure; and providing for an
effective date."
- MOVED CSSB 323(FIN) am OUT OF COMMITTEE
HOUSE BILL NO. 319
"An Act relating to an employee's expectation of privacy in
employer premises."
- MOVED CSHB 319(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 452
"An Act relating to registration, disclosures, and reports by
certain nonprofit corporations."
- MOVED CSHB 452(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 284(STA)
"An Act relating to cruelty to animals."
- MOVED CSSB 284(STA) OUT OF COMMITTEE
SENATE BILL NO. 309
"An Act relating to the use of force by peace officers and
correctional officers."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 434
"An Act requiring drug testing for applicants for and recipients of
assistance under the Alaska temporary assistance program; and
providing for an effective date."
- REMOVED FROM AGENDA
(* First public hearing)
PREVIOUS ACTION
BILL: SJR 42
SHORT TITLE: CONSTITUTIONAL AMENDMENT RE MARRIAGE
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES
Jrn-Date Jrn-Page Action
3/02/98 2701 (S) READ THE FIRST TIME - REFERRAL(S)
3/02/98 2701 (S) JUDICIARY, FINANCE
3/09/98 (S) JUD AT 1:30 PM BELTZ ROOM 211
3/09/98 (S) MINUTE(JUD)
3/10/98 2807 (S) JUD RPT CS 4DP 1DNP SAME TITLE
3/10/98 2807 (S) DP: TAYLOR, PARNELL, MILLER, PEARCE
3/10/98 2807 (S) DNP: ELLIS
3/10/98 2807 (S) FISCAL NOTE TO SJR & CS (GOV)
3/24/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/31/98 (S) FIN AT 1:00 PM SENATE FINANCE 532
3/31/98 (S) FIN AT 7:00 PM SENATE FINANCE 532
4/01/98 (S) FIN AT 7:00 AM SENATE FINANCE 532
4/02/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
4/06/98 3158 (S) FIN RPT CS 5DP 1DNP 1NR SAME TITLE
4/06/98 3158 (S) DP: SHARP, PHILLIPS, PARNELL, DONLEY,
4/06/98 3158 (S) TORGERSON; DNP: ADAMS; NR: PEARCE
4/06/98 3158 (S) PREVIOUS FN APPLIES (GOV)
4/08/98 (S) RLS AT 11:20 AM FAHRENKAMP RM 203
4/08/98 (S) MINUTE(RLS)
4/16/98 3294 (S) RULES TO CALENDAR 1NR 4/16/98
4/16/98 3297 (S) READ THE SECOND TIME
4/16/98 3298 (S) FIN CS ADOPTED UNAN CONSENT
4/16/98 3298 (S) AM NO 1 FAILED Y4 N16
4/16/98 3299 (S) ADVANCED TO THIRD READING Y15 N5
4/16/98 3300 (S) READ THE THIRD TIME CSSJR 42(FIN)
4/16/98 3300 (S) PASSED Y14 N6
4/16/98 3300 (S) ADAMS NOTICE OF RECONSIDERATION
4/17/98 3334 (S) RECON TAKEN UP - IN THIRD READING
4/17/98 3334 (S) PASSED ON RECONSIDERATION Y14 N6
4/17/98 3346 (S) TRANSMITTED TO (H)
4/18/98 3071 (H) READ THE FIRST TIME - REFERRAL(S)
4/18/98 3071 (H) JUDICIARY, FINANCE
4/27/98 (H) JUD AT 1:00 PM CAPITOL 120
4/27/98 (H) MINUTE(JUD)
BILL: SB 323
SHORT TITLE: SEX OFFENSES & OFFENDER REGISTRATION
SPONSOR(S): SENATOR(S) PEARCE, Taylor, Lincoln, Kelly, Donley,
Miller, Green
Jrn-Date Jrn-Page Action
2/16/98 2529 (S) READ THE FIRST TIME - REFERRAL(S)
2/16/98 2529 (S) JUD, FIN
3/11/98 (S) JUD AT 1:45 PM BELTZ ROOM 211
3/11/98 (S) MINUTE(JUD)
3/12/98 2842 (S) JUD RPT CS 3DP 2NR SAME TITLE
3/12/98 2842 (S) DP: TAYLOR, MILLER, PEARCE
3/12/98 2842 (S) NR: ELLIS, PARNELL
3/12/98 2842 (S) FISCAL NOTE TO SB (COR)
3/12/98 2842 (S) INDETERMINATE FN TO SB (ADM)
3/12/98 2848 (S) COSPONSOR: TAYLOR
3/24/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/25/98 (S) RLS AT 12:55 PM FAHRENKAMP RM 203
3/25/98 (S) MINUTE(RLS)
3/25/98 2988 (S) FIN RPT CS 4DP 2NR SAME TITLE
3/25/98 2988 (S) DP: PEARCE, SHARP, PHILLIPS,
TORGERSON;
3/25/98 2988 (S) NR: DONLEY, ADAMS
3/25/98 2988 (S) PREVIOUS FN (CORR)
3/25/98 2988 (S) PREVIOUS INDETERMINATE FN (ADM)
3/26/98 3008 (S) RULES TO CALENDAR 3/26/98
3/26/98 3010 (S) READ THE SECOND TIME
3/26/98 3010 (S) FIN CS ADOPTED UNAN CONSENT
3/26/98 3010 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/26/98 3010 (S) READ THE THIRD TIME CSSB 323(FIN)
3/26/98 3010 (S) COSPONSOR(S): LINCOLN, KELLY, DONLEY,
3/26/98 3010 (S) MILLER, GREEN
3/26/98 3011 (S) PASSED Y16 N- E4
3/26/98 3011 (S) COURT RULE(S) SAME AS PASSAGE
3/26/98 3011 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/26/98 3011 (S) KELLY NOTICE OF RECONSIDERATION
3/26/98 3011 (S) RECON TAKEN UP SAME DAY UNAN CONSENT
3/26/98 3011 (S) HELD ON RECONSIDERATION TO 3/30
CALENDAR
3/30/98 3050 (S) RECON TAKEN UP - IN THIRD READING
3/30/98 3050 (S) RETURN TO SECOND FOR AM 1 UNAN
CONSENT
3/30/98 3050 (S) AM NO 1 ADOPTED UNAN CONSENT
3/30/98 3051 (S) AUTOMATICALLY IN THIRD READING
3/30/98 3051 (S) RETURN TO SECOND FOR AM 2 UNAN
CONSENT
3/30/98 3051 (S) AM NO 2 ADOPTED UNAN CONSENT
3/30/98 3052 (S) AUTOMATICALLY IN THIRD READING
3/30/98 3053 (S) PASSED ON RECONSIDERATION Y20 N-
3/30/98 3053 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/30/98 3053 (S) COURT RULE(S) SAME AS PASSAGE
3/30/98 3055 (S) TRANSMITTED TO (H)
3/31/98 2807 (H) READ THE FIRST TIME - REFERRAL(S)
3/31/98 2807 (H) JUDICIARY, FINANCE
4/28/98 (H) JUD AT 1:00 PM CAPITOL 120
4/28/98 (H) MINUTE(JUD)
BILL: HB 319
SHORT TITLE: EMPLOYEES: NO EXPECTATION OF PRIVACY
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG
Jrn-Date Jrn-Page Action
1/14/98 2040 (H) READ THE FIRST TIME - REFERRAL(S)
1/14/98 2040 (H) LABOR & COMMERCE
1/14/98 2045 (H) ADDITIONAL REFERRAL TO JUD
3/25/98 (H) L&C AT 3:15 PM CAPITOL 17
3/25/98 (H) MINUTE(JUD)
3/27/98 2767 (H) L&C RPT CS(L&C) 1DP 5NR
3/27/98 2767 (H) DP: ROKEBERG; NR: COWDERY, SANDERS,
3/27/98 2767 (H) KUBINA, HUDSON, RYAN
3/27/98 2767 (H) ZERO FISCAL NOTE (LAW)
4/20/98 (H) JUD AT 1:00 PM CAPITOL 120
4/20/98 (H) MINUTE(JUD)
4/23/98 (H) JUD AT 1:00 PM CAPITOL 120
4/23/98 (H) MINUTE(JUD)
BILL: HB 452
SHORT TITLE: NONPROFIT CORPORATIONS DISCLOSURES
SPONSOR(S): REPRESENTATIVES(S) GREEN
Jrn-Date Jrn-Page Action
2/18/98 2362 (H) READ THE FIRST TIME - REFERRAL(S)
2/18/98 2362 (H) JUDICIARY
3/04/98 (H) JUD AT 1:00 PM CAPITOL 120
3/04/98 (H) MINUTE(JUD)
3/06/98 (H) JUD AT 1:00 PM CAPITOL 120
3/06/98 (H) MINUTE(JUD)
4/15/98 (H) JUD AT 1:00 PM CAPITOL 120
4/15/98 (H) MINUTE(JUD)
4/28/98 (H) JUD AT 1:00 PM CAPITOL 120
4/28/98 (H) MINUTE(JUD)
BILL: SB 284
SHORT TITLE: CRUELTY TO ANIMALS
SPONSOR(S): SENATOR(S) DONLEY, Phillips, Ellis; REPRESENTATIVE(S)
Croft
Jrn-Date Jrn-Page Action
2/09/98 2450 (S) READ THE FIRST TIME - REFERRAL(S)
2/09/98 2450 (S) STA, JUD
2/11/98 2487 (S) COSPONSOR: PHILLIPS
2/12/98 2505 (S) COSPONSOR: ELLIS
3/03/98 (S) STA AT 3:30 PM BELTZ ROOM 211
3/03/98 (S) MINUTE(STA)
3/04/98 2734 (S) STA RPT CS 4DP SAME TITLE
3/04/98 2734 (S) DP: GREEN, DUNCAN, MACKIE, WARD
3/04/98 2734 (S) ZERO FISCAL NOTE TO SB & CS (LAW,
S.STA)
3/20/98 (S) JUD AT 1:30 PM BELTZ ROOM 211
3/20/98 (S) MINUTE(JUD)
3/23/98 2944 (S) JUD RPT 2DP 1NR (STA)CS
3/23/98 2944 (S) DP: TAYLOR, PEARCE; NR: PARNELL
3/24/98 (S) RLS AT 11:45 AM FAHRENKAMP RM 203
3/24/98 (S) MINUTE(RLS)
3/26/98 3008 (S) INDETERMINATE FN (LAW)
3/26/98 3008 (S) RULES TO CALENDAR 3/26/98
3/26/98 3009 (S) READ THE SECOND TIME
3/26/98 3009 (S) STA CS ADOPTED UNAN CONSENT
3/26/98 3009 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/26/98 3009 (S) READ THE THIRD TIME CSSB 284(STA)
3/26/98 3010 (S) PASSED Y16 N- E4
3/26/98 3013 (S) TRANSMITTED TO (H)
3/27/98 2767 (H) READ THE FIRST TIME - REFERRAL(S)
3/27/98 2767 (H) JUDICIARY
4/29/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KRISTY TIBBLES, Researcher
to Senator Drue Pearce
Alaska State Legislature
Capitol Building, Room 518
Juneau, Alaska 99801
Telephone: (907) 465-4747
POSITION STATEMENT: Presented
KEVIN JARDELL, Legislative Administrative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-4990
POSITION STATEMENT: Answered questions on CSSB 323(FIN) am.
JANET SEITZ, Legislative Assistant
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 24
Juneau, Alaska 99801
Telephone: (907) 465-4968
POSITION STATEMENT: Answered questions on CSSB 323(FIN) am.
JEFFREY LOGAN, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-6841
POSITION STATEMENT: Discussed changes in Version F and answered
questions about HB 452 on behalf of sponsor.
ACTION NARRATIVE
TAPE 98-76, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:00 p.m. Members present at the call to order
were Representatives Green, Porter, Rokeberg, James and Croft.
Representatives Berkowitz and Bunde arrived at 1:05 p.m. and 1:10
p.m., respectively.
CSSJR 42(FIN) - CONSTITUTIONAL AMENDMENT RE MARRIAGE
CHAIRMAN GREEN announced the first item of business would be CSSJR
42(FIN), proposing an amendment to the Constitution of the State of
Alaska relating to marriage. He noted that the committee had heard
the resolution at length two days before.
Number 0061
REPRESENTATIVE JEANNETTE JAMES made a motion to move CSSJR 42(FIN)
from committee with individual recommendations and attached fiscal
note(s).
REPRESENTATIVE ERIC CROFT objected.
CHAIRMAN GREEN requested a roll call vote. Voting to move the
resolution were Representatives James, Porter, Rokeberg and Green.
Voting against it was Representative Croft. Representatives
Berkowitz and Bunde had not yet arrived. Therefore, CSSJR 42(FIN)
moved from the House Judiciary Standing Committee by a vote of 4-1.
CSSB 323(FIN) am - SEX OFFENSES & OFFENDER REGISTRATION
Number 0104
CHAIRMAN GREEN indicated the next order of business would be CSSB
323(FIN), "An Act relating to sexual offenses, to those who commit
sexual offenses, and to registration of sex offenders; amending
Rule 6(r)(2), Alaska Rules of Criminal Procedure; and providing for
an effective date," sponsored by the Senate Finance Committee.
KRISTY TIBBLES, Researcher to Senator Drue Pearce, Alaska State
Legislature, came before the committee. She indicated that at the
meeting the previous day there was concerns regarding the bill.
REPRESENTATIVE CROFT said he reviewed the bill with Mr. Guenali and
it is as difficult as people thought to define this area of the law
much further. He said they could not find federal guidelines.
There were some federal statutes, federal cases and some old state
cases that gave some more illumination to it. Representative Croft
said there may be a way to do this better, but there probably isn't
a way to do it better in the next day or even two weeks. He said
he appreciates the chairman giving him a day to try and figure out
if there is someway to define it better.
Number 0243
REPRESENTATIVE ETHAN BERKOWITZ indicated he had a proposed
amendment and moved to adopt it.
CHAIRMAN GREEN objected for the purpose of discussion.
REPRESENTATIVE BERKOWITZ explained what he is trying to do with the
amendment is to ensure that if the state brings a criminal charge
against the sexual perpetrator, the victim similarly situated can
also seek redress at that time as the statute of limitations would
have otherwise expired.
Number 0321
REPRESENTATIVE BRIAN PORTER questioned what the current statute of
limitations is.
REPRESENTATIVE BERKOWITZ responded that it is three years after
discovery and it is located in Section 1 of the bill. He referred
to Section 9 and said, "Even if the general time limit of
limitations expires the prosecution for sexual offenses - for an
offense committed against a person under the age of 18 may be
commenced at any time."
REPRESENTATIVE JAMES said she doesn't know why the amendment is
needed.
REPRESENTATIVE BERKOWITZ explained the criminal charge can be
brought at any time but the civil case can't be. A person could be
in a situation where the state would be bringing a criminal charge,
but an individual might not be permitted to bring a civil case.
Number 0430
REPRESENTATIVE CROFT said it seems to be particularly appropriate
in dealing with sexual offenses involving children. There are
various reasons why a child or guardian may not bring that action
within three years.
REPRESENTATIVE PORTER said if he understands the meaning of the
amendment, there will be no statute of limitations for a civil case
brought by an alleged sexual assault victim against the alleged
offender.
REPRESENTATIVE BERKOWITZ responded, "If the victim was under 18 at
the time of the offense."
REPRESENTATIVE PORTER said, "All of the reasons that we discussed
about adding reasonable statutes of limitations, the statutes of
repose come into play. As much as child sexual abuse is a
despicable thing, bringing one of these cases 25 years later
creates problems that I don't think they're outweighed by the
benefit." He stated he can't support the amendment.
REPRESENTATIVE BERKOWITZ stated that is true, but we've made
exception in the criminal law. If there is a discovery 25 years
later, we're allowing the state to pursue an action. For all the
reasons talked about earlier, for eliminating actions would
logically apply to the state for a criminal action. He said he
believes a limitation should be put on the state's ability to bring
a criminal action or loosen the ability of an individual to bring
civil action.
Number 0590
CHAIRMAN GREEN suggested, as a friendly amendment, that on line 8
if instead of "at any time," change it to say "within three years
after the victim reaches the age of majority." He said, "In other
words, this 5-year-old has been put upon. Now he reaches 21 and so
that then gives him nearly 20 years find, plus the fact that
whatever suppressed his ability to bring the cause of action
earlier - now he's an adult and would not be subject perhaps
parental or at least family-type abuse."
REPRESENTATIVE BERKOWITZ said he believes that is a step in the
right direction. He pointed out that the limitation operates under
the assumption that people leave home when they're 18. He noted
that are a lot of people who don't for various reasons.
CHAIRMAN GREEN referred to a person who was to bring a civil action
for abuse that happened many years ago and asked if that same
person would stay in that household after they were an adult.
REPRESENTATIVE BERKOWITZ stated there could be circumstances where
an individual would such as to protect a younger sibling.
CHAIRMAN GREEN said that open-endedness is probably more than he
can handle.
REPRESENTATIVE JAMES stated criminal law is punishable by fines or
imprisonment or both. Civil law seems to be only punishable by
money. She said sees this as opening the door for family distress.
Representative James said when people go to court on a civil case
two things have to be measured, "What is the result going to be?
And how much money you want to get?" Representative James said she
understands the argument by Representative Berkowitz that if the
criminal act is okay, that the civil act should be okay. She
stated she doesn't see any connection between the two. There might
be a case when a child had been sexual assaulted when they under
six and by the time the child gets into the hands of the state,
they are a teenager. There may be some costs incurred by the state
because of something that happened to a child a long time ago. She
said she doesn't have any real discomfort in allowing the criminal
action to be carried forward because it has a different motive. A
civil case only has the issue of money. If there isn't money, a
lawsuit probably wouldn't be filed and if there is, there would be
a lawsuit filed. Representative James stated she isn't comfortable
with the amendment.
REPRESENTATIVE BERKOWITZ said, "Maybe I can offer an amendment that
combines the friendly amendment you had which would be something,
'Within three years of majority or within three years after the
onset of criminal prosecution.'"
Number 0852
REPRESENTATIVE PORTER asked if that doesn't just extend what the
current law provides by one year.
KEVIN JARDELL, Legislative Administrative Assistant to
Representative Joe Green, Alaska State Legislature, came before the
committee. He explained that in AS 09.10.140 it states you would
have two years after you become the age of majority. If the
causing event happens while under the age of majority, it is towed
until you reach the age of majority in which time you have two
years to bring the action. There are also two special provisions
for sexual abuse. He stated that it seems that if you have an
injury or illness, being psychological he would imagine, that you
discover and you relate it back to an event, you have three years
from the time you make that connection that your psychological
problems are related to the sexual abuse. Mr. Jardell stated that
there are provisions.
REPRESENTATIVE BERKOWITZ said, "The loophole is there might be a
situation, and I've seen them in other states, where a victim makes
a decision not to pursue a case, fully cognizance of the effect
it's had him. Yet, after a period of time, the state pursues a
criminal case, maybe not against this individual victim but a case
that would involve this victim, in which case the victim has, in a
sense, been forced to confront ... their past in a way they might
not have otherwise chosen to do, in a time they otherwise (indisc.)
chosen to. And at that point, their own personal statute of
limitations has lapsed, but they've been brought back into all the
abuse that occurred before."
Number 0994
REPRESENTATIVE PORTER said, "I guess you could come up with a 'what
if' and just about an exception to every rule that we have. But
that individual what if - is not going to happened enough to change
my mind on this being appropriate position that is in without this
amendment."
REPRESENTATIVE CROFT said Representative James discussed that we
can fine or imprison with criminal or solely fine with civil. He
said it seems that if you're going to throw someone in jail based
on evidence getting stale, you're going to do the greater thing,
but you're not going to allow the victim recover. It seems
backwards in that if you want to close off something at some point,
you close off the one with the more egregious consequences and not
the one with the less egregious consequences. He said he isn't
sure why there is an unlimited statute of limitations on this.
Representative Croft stated, "I think there are good reasons. This
is a thing that children often don't understand, sometimes can't
fully understand, or that it takes them a long time because they're
so embarrassed to tell. And so it is an area that is particularly
ill suited to restrictive statute of limitations - put the other
way, it's particularly well-suited to giving them a lot of ...
time."
Number 1090
CHAIRMAN GREEN said if this was such a crime that it would cause
monetarily correctable damage, the current statute allows for two
years past the majority. If it were going to be something where
they would come back when they're 55 years old, it makes you wonder
if the damage that was caused is correctable by some sort of
monetary disposition as opposed to incarceration.
REPRESENTATIVE BERKOWITZ explained that another reason why a lot of
these cases proceed to civil court and that is so the victims feel
like they get their day in court and have the opportunity to make
their accusation and to have a jury validate their injuries which
is above and beyond the money on many occasions.
REPRESENTATIVE JAMES said the other one is the O. J. revisited as
the evidence is more severely reviewed in a criminal case than it
is in a civil case. The burden of proof is different. They could
lose in a criminal case and then file a civil case.
REPRESENTATIVE PORTER said he thinks that is one of the reasons
that a distinction between an unlimited amount of time to go back
on a criminal case and trying to do the came thing for a civil
case. It significantly different as there is a very high burden of
proof in criminal cases. Representative Porter said he would
venture to say that you could count on one hand the amount of
successful prosecutions in this kind of situation that goes back 30
or 40 years. At the time that was put into statute, he would guess
the repressed memory syndrome was popular. Over the last few
years, it is becoming more and more evident that is a unlikely
occurrence. He stated he would not support the amendment.
CHAIRMAN GREEN stated there is an amendment before the committee
and an objection is maintained. He requested a roll call vote on
Amendment 1. Representatives Rokeberg, Porter, James, Bunde and
Green voted against the adoption of the amendment. Representatives
Berkowitz and Croft voted in favor the amendment. Amendment 1
failed to be adopted by a vote of 5-2.
Number 1271
REPRESENTATIVE CROFT made a motion to move CSSB 323(FIN) am out of
committee with individual recommendations and with the attached
fiscal notes. There being no objection CSSB 323(FIN) am moved out
of the House Judiciary Standing Committee.
HB 319 - EMPLOYEES: NO EXPECTATION OF PRIVACY
Number 1343
CHAIRMAN GREEN announced the committee would address HB 319, "An
Act relating to an employee's expectation of privacy in employer
premises."
REPRESENTATIVE NORMAN ROKEBERG, prime sponsor of HB 319, explained
the committee has been provided with Version B, Cramer, 4/27/98.
He said he presents the committee substitute for the consideration
of the committee.
REPRESENTATIVE CROFT indicated he had missed some of the prior
discussion regarding the bill. He referred to the prior version
and said, "There was an exception in the prior one exempting us.
Is that out?"
REPRESENTATIVE ROKEBERG indicated it is still in the bill on page
2, line 16. He noted it is there so that the presiding officer
can't snooping in your files.
Number 1460
REPRESENTATIVE CON BUNDE moved that the proposed committee
substitute be adopted.
CHAIRMAN GREEN asked if there was an objection to the adopted of
CSHB 319, Version B.
REPRESENTATIVE CROFT objected for the purpose of knowing what it
does.
REPRESENTATIVE ROKEBERG said on page 1, lines 5 and 6, the words
"between an employer and a employee of an employer" was added. He
referred to line 11 and said he believes the committee adopted the
wording "not hinder or obstruct". The word "from" was included on
line 12. It would then read, "The employee may not hinder or
obstruct the employer from access..." Representative Rokeberg
explained the major changes begin on page 1, line 15. It would
read, "This section does not waive and employee's expectation of
privacy with respect to (1) a personal telephone call; (2) premises
or equipment, including a computer and computer information, owned
by the employee but used in the employee's employment for the
employer even if the equipment is connected to the employer's
equipment or service for the equipment is supplied by the
employer." He said you could bring your own computer in and plug
it in to the data line and they still can't eavesdrop on you.
Representative Rokeberg stated he believes this wording meets the
concerns the committee had voiced. Representative Rokeberg said,
"Also, a personal telephone call - this one is a little bit
problematic for myself, but this is what the committee wished. I'm
not sure what a personal telephone call is, it's a personal
telephone call."
REPRESENTATIVE ROKEBERG pointed out that he believes the testimony
received by committee staff regarding the level of law, in terms of
privacy in this state, was correct. Staff provided him with the
Neighbors v. Ludkey (ph.) case and said it indicates that is the
case, in terms of the private sector of the state, there should be
no expectation or right of privacy other than what's provided by
case law.
REPRESENTATIVE ROKEBERG referred to page 2, (c)(1), line 8,
"'elected official' means the governor, the lieutenant governor, a
member of the legislature, a justice or judge, or a person elected
to municipal office;", which includes school board members as seen
in the memorandum of April 27. He said "employee" is defined to
mean, "a person employed by an employer and includes (i) a
permanent, seasonal, probationary, or temporary employee whether
employed full-time or part-time; (ii) an independent contractor and
an employee of an independent contractor retained by the employer;
(B) does not include an elected official;". He stated those are
the additions made in the committee substitute. Representative
Rokeberg said at this time he would not object to a personal
telephone call.
Number 1657
REPRESENTATIVE PORTER said he would not interpret the wording to
mean that an employee, anywhere, is entitled to make personal phone
calls. If an employer has a policy against personal phone calls,
that would supersede. If the person, short of that, has personal
phone calls or even makes one against the policy, it should be
private. It doesn't mean you can't get fired for having personal
phone calls.
REPRESENTATIVE BERKOWITZ said, "Representative Porter makes the
point that I tried to make with an amendment that said, 'absent a
specific written agreement should be contrary, an employee has an
expectation of privacy.' That expressly drawn up policy precluded
personal phone calls -- is the type of agreement that an employee
enters into when they sign on. What this whole bill does is turn
that notion upside down saying that you can't make a personal phone
call ever unless the employer says it's okay."
CHAIRMAN GREEN asked if the objection is maintained to adopt
Version B.
Number 1748
REPRESENTATIVE CROFT withdrew his objection.
REPRESENTATIVE BERKOWITZ said if the condition had been that the
employer had to specifically say, "You have no expectation of
privacy for whatever reasons and whatever instances," the default
position is the expectation of privacy. The bill flips the default
around saying, "You have no expectation of privacy," meaning that
the only time you can expect privacy on the premises is when the
employer grants it to you.
REPRESENTATIVE PORTER said he thinks it is exactly the opposite.
The bill says, "This section does not waive an employee's
expectation of privacy with respect to a person phone call." It
doesn't say anything else about personal phone calls. He said this
should not be used to indicate that personal phone calls are
allowed or not allowed by employer policy.
REPRESENTATIVE BERKOWITZ said, "And I agree with that, but it's the
exception that we carved out with this line. Now if, for example,
you're having a personal conversation with somebody, you have no
expectation of privacy in that personal conversation because this
bill says you have no expectation of privacy on the premises, and
we haven't carved out an exception for that conversation."
Representative Berkowitz said if he and Chairman Green were having
a conversation, and are working for somebody, there is no
expectation of privacy in that conversation because there isn't an
exception in the bill that covers the conversation.
Number 1873
REPRESENTATIVE BUNDE said because the bill specifically says that
you have an expectation of privacy in phone calls, and because it
doesn't specifically mention any other situation, the expectation
of privacy doesn't go anywhere else because it is only delineated
in one area. He asked if that is correct.
REPRESENTATIVE JAMES said that is correct.
CHAIRMAN GREEN said that the committee is talking about phone calls
and with a phone call you have that right of privacy. He said he
doesn't quite follow the fact that you don't have it. The section
doesn't waive that expectation of privacy.
REPRESENTATIVE PORTER explained there is case law on what a
legitimate expectation of privacy is and isn't and the environment,
et cetera, comes into play. He said you couldn't write a statute
to take all that in.
Number 2055
MR. JARDELL said he believes there should be an understanding of
the distinction between the constitutional right and the policy
right that our courts have interpreted in the right to privacy.
The courts have found there is no constitutional right to privacy
in a private matter, citizen on citizen.. Only when there is
government action is there a constitutional right to privacy. They
look to a policy reasoning behind rights to privacy. He noted the
case law dealt mostly with drug testing in nongovernmental
businesses and how far they can go to drug test an individual that
is working with them. The court went through a long process of
setting out that this is a policy call and not a constitutional
call, which places a great deal of emphasis on what the committee
decides and what eventually passes the legislature. Mr. Jardell
explained he believes the point of the legislation was to set out
a basic policy statement that when you're within an employer's
premises you do not have an expectation of privacy. He noted that
is the employer's premises and it is the premises where you do the
work. If you're there doing work, you have no expectation of
privacy in an office or anything else that's being provided to you
at work station.
CHAIRMAN GREEN said, "What about closed doors?"
MR. JARDELL said, "Again, without this legislation, the courts
would go through a, 'Would a reasonable person have an expectation
of privacy?' Depending on the specific facts around that, the
court may go one way or another. For instance, if you had an
employer who told people, 'Look I'm listening, I'm going to be
coming around and I'm going to be listening in on doors to make
sure you're working,' you may not have an expectation of privacy
there whereas if you were in a private sector, you're a legislator,
and you conduct a lot meetings closed door, you may have a little
more of an expectation of privacy than some other situation. But
it is a case-by-case specific. Where are facts of the
circumstances?"
Number 2182
REPRESENTATIVE PORTER said he agrees with what Mr. Jardell said
right up to the point where he said that you shouldn't have any
expectation of privacy on somebody else's business premise. He
stated that he disagrees. Representative Porter suggested under
"the expectation of privacy" he would suggest that the committee
add "a personal oral conversation where a rational expectation of
privacy exists." He stated he doesn't think anybody would expect,
unless they were specifically put on notice, that the entire
business premise in which you work is bugged and somebody is
listening to everything, but it certainly is totally
technologically feasible and probably happens. To the extent that
we have a right to privacy in our constitution, he believes it is
only appropriate that should be recognized statutorily.
REPRESENTATIVE CROFT pointed out that they are trying to recognize
various different areas where employees have reasonable
expectations of privacy in the workplace. He said he believes
there are areas in a workplace where is there is a reasonable
expectation of privacy. Representative Croft said, "A telephone
call makes sense to me, your own computer makes sense to me, a
purse that you stick in the file cabinet of the employer makes
sense to me and the conversation makes sense to me. That's why the
bill doesn't makes sense to me. I mean I think we should say,
instead, the opposite. An employee has a reasonable expectation in
the workplace under certain situations and we can't identify them
all, but rather than saying they don't we keep coming up with
specific defensible where they do."
REPRESENTATIVE CROFT referred to constitutional provisions and said
they normally only act to limit the government's power. He
explained that our constitutional privacy provision says, "The
legislature shall implement this provision." He said we have a
reasonable expectation of privacy and it's the legislature's job to
protect it, not violate it even with exceptions. Representative
Croft said he doesn't see that all the different amendments will
solve the problem.
Number 2363
REPRESENTATIVE PORTER said the idea is to balance legitimate
requirements of an employer to operate a business. He referred to
the individual rights of employees and said they are in a
subordinate position as an employee. If they don't like that, they
should go start their own business.
REPRESENTATIVE JAMES stated she agrees with Representative Porter.
She said, "Having worked in a large corporation for ten years and
knowing what can happen when employees have the right to privacy of
everything they do and say or not is certainly critical for
employers also having been done for small employers for 30 years,
I understand that need. When you are on the employer's premise and
you're being paid for you services, we need to be sure that what
you're doing is worth paying. And I don't necessarily mean to
bring this amendment in because it's not a part of our discussion,
but an area or compartment used to store an employee's personal
belongings -- we live in an age now where people's personal
belongings can be disruptive to the business. There are all
different kinds of things that people can do like talking to one
another, or whatever, should not necessarily be presumed to be
private. If they're having a private personal conversation with a
family member or somebody on the telephone..."
TAPE 98-76, SIDE B
Number 0001
REPRESENTATIVE JAMES continued, "...there are obligations that
(indisc.) to them and to say that they can do things under the
guise of privacy while they're on the paycheck, I disagree with.
And I like this bill, and I think it should be that they shouldn't
have the presumption of privacy when they're on the employer's
premises doing the employer's work. If they want privacy, they
could go off of the premises and have it there."
REPRESENTATIVE BERKOWITZ explained that the university grounds
would be university premises, so there would be no expectation of
privacy anywhere in the university. He said you could argue that
state lands are state premises, so state employees on state lands
have no expectation of privacy. Representative Berkowitz explained
that if you can't have an expectation of privacy in academic
setting, that's is disruptive to the sort of academic freedom of
people. He referred to having closed caucuses and said they are
closed so that we can be free with what we're doing. We want to
ensure our privacy isn't infringed. Representative Berkowitz
referred to he proposed amendment and said Section 22 of the
constitution says, "The right of people to privacy is recognized
and shall not be infringed." He stated that there are residual
personal privacy rights that everyone has. He said he doesn't
think the employer should the ability to reach into the employee's
privacy. Representative Berkowitz said all he is suggesting is
that the employee's right to privacy should only be infringed when
the employer tells them, "Don't send personal mail, don't make
personal phone calls except during lunch hour, you can have your
door closed but I might be listening in."
Number 0169
REPRESENTATIVE PORTER stated he would offer Amendment 1. On page
2, add a new "(2)", and then renumber. The section would say, "a
personal oral conversation or where a reasonable expectation of
privacy exists."
REPRESENTATIVE CROFT referred to the wording, "personal oral
conversation" and "personal telephone call," and indicated he isn't
sure how that would be implemented. He said, "They get to bug my
phone, but when they hear me talking personally they have ring off?
I mean they get to record my calls but then they have a duty to
erase the ones they listened to deemed to be kind of personal as
opposed to business." He stated he would removal "personal."
Number 0301
REPRESENTATIVE BERKOWITZ said he has an objection to the word
"oral" in the proposed amendment as he has done a little bit of
work with the deaf and hard of hearing community.
CHAIRMAN GREEN said, "I suppose we should cover that since this is
more than just those of us who have hearing." He asked
Representative Berkowitz if he is offering that as a friendly
amendment.
Number 0327
MR. JARDELL explained that if "oral" is taken out, it could be
interpreted to include e-mail as conversation - electronic
conversations. Mr. Jardell noted his previous comments were
strictly based on his understanding of the bill and he wasn't
advocating one policy or another.
REPRESENTATIVE JAMES referred to Representative Berkowitz bringing
up the university campus and asked about dormitories. She said she
believes employers have a right to expect their people, who are
working today, to not be doing a lot of private things that could
disrupt the employer. Employees shouldn't have the expectation
that anybody overhearing them say something that has a negative
effect is okay and they wouldn't be able to use the right to
privacy as a defense. However, it seems that there are times and
places where mostly what you're doing are personal things in which
you should be able to expect privacy such as in a university
dormitory.
CHAIRMAN GREEN pointed out it says, "reasonable expectations."
Number 0430
JANET SEITZ, Legislative Assistant to Representative Norman
Rokeberg, Alaska State Legislature, came before the committee. She
referred to Representative James' concern and said the bill deals
with employees and not students. She stated the bill was amended
in the House Labor and Commerce Committee so that residential
housing units would not be covered.
REPRESENTATIVE BUNDE asked why the bill didn't just say, "an
expectation or reasonable expectation of privacy exists except
where written agreements are entered into by the employer and the
employee."
MS. SEITZ explained the drafter of the bill was approached with the
concept that they wanted the employer and employee to sign an
agreement and this was how the drafter felt it could best be put
into language. She said she thinks that Representative Rokeberg
wants the employees to know that they don't have a reasonable
expectation of privacy except in certain circumstances. She said
they are approaching more from an employer's aspect, but are still
giving the employees some protection because they can have a
written agreement that delineates parameters.
Number 0512
REPRESENTATIVE PORTER referred to Representative Bunde's concern
and said, "In addition ... to the who is the boss and who is the
employee consideration, in a state that has an individual right to
privacy undefined in its constitution, if you get into these areas
and approach it from that perspective, you would be surprised what
you could end up with in terms of individual rights."
REPRESENTATIVE PORTER referred to removing the word "oral" and said
he would not see it as a friendly amendment.
REPRESENTATIVE JAMES asked Representative Porter to read his
amendment again.
REPRESENTATIVE PORTER said under the wording "(1) a personal
telephone call;", add a new "(2)" and renumber. He said the new
"(2)" would read "a personal oral conversation where a reasonable
expectation of privacy exists."
REPRESENTATIVE BERKOWITZ suggested the wording read, "oral or sign
language conversation...."
CHAIRMAN GREEN said it's conversation whether it's oral or sign.
REPRESENTATIVE PORTER said, "By the very nature of sign language,
unless you're in a room by yourself, you do not have an expectation
of privacy when you think that there may be someone who can read
it. It isn't an audible transmission."
REPRESENTATIVE CROFT pointed out you could have sign language
conversations where you're doing it in the palm of the hand or
whatever. So you can whisper in sign language, but it's not easy
to do. There can be a conversation in sign language where
reasonable expectation of privacy would exist.
REPRESENTATIVE PORTER said he wouldn't consider adding the wording,
"or sign language" as a friendly amendment to his amendment.
Number 0633
MR. JARDELL suggested saying, "a personal conversation" and then
put an exclusionary clause in that says, "not to include electronic
conversations."
CHAIRMAN GREEN stated a telephone is an electronic conversation.
He asked Representative Porter if he wishes to pursue Mr. Jardell's
wording.
REPRESENTATIVE PORTER responded in the negative.
CHAIRMAN GREEN asked if there is objection to Amendment 1, item
"(2)".
REPRESENTATIVE CROFT objected.
CHAIRMAN GREEN requested a roll call vote. Representatives Bunde,
James, Porter and Green voted in favor of adopting the amendment.
Representatives Berkowitz, Croft and Rokeberg voted against the
amendment. Amendment 1 was adopted by a vote of 4 to 3.
REPRESENTATIVE BERKOWITZ moved Amendment 2 which would include the
wording, "or sign language" after the word "oral" in Amendment 1.
REPRESENTATIVE JAMES objected.
Number 0722
REPRESENTATIVE PORTER said that what was done by adding (1) and the
new (2) is codify an area of the law that is very clear. Where the
law may be on sign language, as a language, or demonstrative
gestures, is an area of the law he doesn't think we want to jump
into.
REPRESENTATIVE BUNDE stated that he does know that the American
sign language (ASL) is a recognized language. He noted there is
another, but he can't remember the name. If the committee includes
ASL then those who advocate the other language will want it
included. Representative Bunde said he thinks it would cover most
people if the wording, "ASL sign language" were to be included,
which is taught in schools. He stated that you can get a degree in
ASL at the University of Alaska - Anchorage.
CHAIRMAN GREEN asked Representative Bunde if that is a friendly
amendment to Amendment 2.
REPRESENTATIVE BERKOWITZ said, "We've said oral conversation that
would include English, Spanish, Yupik, Yupiit, Yup'ik. There are
different types of sign language, there's French, there is English,
there is American. Sign language is just a means of communication
for people who are not communicating orally." Representative
Berkowitz said another point is he would think the Americans with
Disabilities Act (ADA) and the equal protection clause would compel
the committee to make some kind of accommodation.
CHAIRMAN GREEN asked Representative Berkowitz if he considers the
suggestion by Representative Bunde a friendly amendment.
Number 0836
REPRESENTATIVE BERKOWITZ said he considers it an extended hand, it
come part of the way but not fully.
REPRESENTATIVE BUNDE explained that somebody who uses ASL can also
converse in French. He pointed out that ASL is a style as much as
a vocabulary.
CHAIRMAN GREEN asked if the concept of sign language would cover
the issue even though it may not be a specific kind. Somebody must
be able to understand it otherwise you don't have communication.
REPRESENTATIVE PORTER indicated he would think about "ASL," but the
term "sign language" gets back to an example of himself and
Representative Croft talking in a corner and one of them decides to
put up three fingers to indicate something. That is communication
with sign. He asked where it begins and stops.
Number 0899
REPRESENTATIVE ROKEBERG said, "I would like to know if this
includes disallowing or making it legal of steeling of baseball
signs. That's what it would do." He said he objects to the
amendment.
REPRESENTATIVE BERKOWITZ said if you were playing ball in a company
yard, you don't have any expectation of privacy in those signs.
REPRESENTATIVE BUNDE made a motion to amend Amendment 2 to add the
term "ASL."
REPRESENTATIVE ROKEBERG objected.
REPRESENTATIVE BUNDE said that "ASL" would be a substitute for
"sign language."
CHAIRMAN GREEN asked if it would say "or ASL."
REPRESENTATIVE BUNDE said where it says "or sign language," say "or
American sign language."
CHAIRMAN GREEN clarified that the amendment to the amendment would
include the word "American" in front of "sign language." He stated
the objection is maintained.
CHAIRMAN GREEN asked for a roll call vote on the amendment to
Amendment 2. Representatives Berkowitz, Rokeberg, Porter, Green
and James voted against the amendment to the amendment.
Representatives Bunde and Croft voted in favor the amendment to the
amendment. So the amendment to Amendment 2 failed to be adopted by
a vote of 5 to 2.
CHAIRMAN GREEN indicated there was an objection to the adoption of
Amendment 2. He requested a roll call vote. Representatives
Bunde, James, Porter, Rokeberg and Green voted against the adoption
of Amendment 2. Representatives Berkowitz and Croft, voted in
favor of Amendment. Amendment 2 failed to be adopted by a vote of
5 to 2.
Number 1078
REPRESENTATIVE CROFT offered Amendment 3 which read:
Page 2, line 6, following "employer":
Insert "; or
(3) an area or compartment used to store and
employee's personal belongings"
REPRESENTATIVE ROKEBERG objected.
REPRESENTATIVE CROFT said you either agree that I have the right to
go back and look through Roxanne's's purse or you don't. He named
the amendment the "purse amendment."
REPRESENTATIVE ROKEBERG pointed out that the amendment doesn't say
"purse." It says in a compartment or area and that's why the
provisional contracts are in the bill.
REPRESENTATIVE BERKOWITZ said it the area used to store personal
belongings such as the locker you give them or the purse they have
in the file cabinet.
REPRESENTATIVE ROKEBERG said a purse is not business (indisc.).
You have an expectation of privacy.
Number 1137
CHAIRMAN GREEN informed the committee members the problem he has
with the amendment is it would preclude any random searching for
drugs. He indicated he believes that has been upheld.
REPRESENTATIVE CROFT said he thinks that random searching for drugs
could not be allowed under the amendment unless there is some
reason.
REPRESENTATIVE BUNDE stated that it probably would be in an
employer's best interest to say that, as a policy, we will do
random drug inspections in personal lockers. He referred to
Representative Croft's amendment and said there is a question as to
whether the employer would be able to do that or not.
REPRESENTATIVE CROFT said he doesn't think they could do a random
search under the amendment. He said, "They could do a
individualized reason to..."
REPRESENTATIVE PORTER said it has been established that they have
an expectation of privacy in this area. It doesn't say, "except"
unless it's taken away by (indisc.) the employer.
REPRESENTATIVE CROFT said, "Even recognize reasonable expectations
of privacy, once you get there it ain't 100 percent even then. I
mean you can then -- that's the first part of it. Is there a
reason then to infringe upon it? So you can have justifiable
reasons too. If you don't have any reasonable expectation of
privacy, there is no protections at all. It's just public. Even
with a reasonable expectation of privacy, there's no protections at
all, it's just public. Even with a reasonable expectation of
privacy, ... there are then legitimate reasons to infringe it."
Number 1259
CHAIRMAN GREEN asked Representative Rokeberg if he still maintains
his objection to Amendment 3.
REPRESENTATIVE ROKEBERG responded in the affirmative.
CHAIRMAN GREEN requested a roll call vote. Representatives
Rokeberg, Porter, James, Bunde and Green voted against the
amendment. Representatives Berkowitz and Croft voted in favor of
the amendment. Amendment 3 failed to be adopted by a vote of 5 to
3.
Number 1296
REPRESENTATIVE CROFT stated the sponsor's representative has stated
that it is not supposed to be residential. He said he has seen
some business premises, off-site locations, where you're sleeping
in bunk beds. He suggested including a conceptual amendment that
says, "non-residential" wherever it is appropriate. It addresses
Representative James' dormitory concern and a number of other
situations.
REPRESENTATIVE BUNDE referred to the construction of the pipeline
and said he thinks the company has a right to search rooms for
contraband. He said he thinks the amendment would preclude that.
REPRESENTATIVE ROKEBERG said, "As part of the record I'm (indisc.)
memorandum from Terry Cramer, legislative counsel, on March 24th,
indicating (indisc.--mumbling) privacy even to housing supplied to
an employee by an employer. As I discussed with Jan on the
telephone this unintended extension of the bill to a person's
living quarters (indisc.--mumbling) against a constitutional
challenge based on an individuals right of privacy. Amendment A.3
clarifies that the bill applies only to business premises in this
amendment (indisc.) the bill is so limited in scope. We talked
about this in the original draft of the bill. This is only on
business premises (indisc.) of this bill does not apply to those
areas used for residential use or domicile (indisc.)."
REPRESENTATIVE CROFT said there should be no objection to the
amendment. He said he is trying to clarify that it is in the
record. Not everybody goes back to the words said in the committee
meetings.
CHAIRMAN GREEN indicated that on the North Slope, they do random
searches and have the right. He noted that it may be by contract
or an agreement. The amendment, he believes, would preclude that.
Number 1472
REPRESENTATIVE ROKEBERG stated that he doesn't want to hinder any
of the existing policies, contracts or agreements that are in
place. That is why the bill specifically provides for contractual
agreements. The purpose of the legislation is to make sure
companies have policies in place. There are certain circumstances
where they will want to be able to have access to those (indisc.).
REPRESENTATIVE BERKOWITZ how it will work at sea on a ship.
REPRESENTATIVE ROKEBERG said he thinks the same answer would apply
to a vessel.
CHAIRMAN GREEN asked about a vessel being licensed with the state
of Alaska. He said if it is at high-sea, is it considered within
the state.
CHAIRMAN GREEN asked for a roll call vote on Amendment 4.
Representatives Bunde, James, Rokeberg and Green voted against the
amendment. Representatives Berkowitz and Croft voted in favor of
the amendment. So Amendment 4 was failed to be adopted by a vote
of 4 to 2.
Number 1693
REPRESENTATIVE CROFT indicated he had another amendment. He said,
"In a specific written agreement they have no privacy. I just --
a conceptual amendment that there will be some notice to the
employee of what things they can or intend to bug ... we're going
to randomly search your locker, we monitor phone calls or we don't.
Whatever it is that they're doing in this area they tell them. One
page, if they're doing a lot of it more. I wouldn't think it would
be a big burden on small employers. But to say if we're going to
be infringing on some of these areas, we search your hard disk once
every month for stuff. Don't have to tell them what it is, you may
not even have to tell them once every month but tell them..."
CHAIRMAN GREEN said, "...you're subject to it."
REPRESENTATIVE ROKEBERG said he strongly objects as he believes in
paperwork reduction. He doesn't believe in adding more burdens or
giving notice for doing something you have a common law right to do
now.
Number 1765
REPRESENTATIVE BERKOWITZ said if there is a common law right, it
seems that the common law expectation of privacy would be taken
away. If something is being taken away from people, they should at
least be told about it.
REPRESENTATIVE ROKEBERG said you could develop any number of
scenarios and make that argument one way or another. If you start
requiring notification for activities which are currently being
done and upset the course of commerce by adding additional hurdles,
it just becomes an additional expense. Representative Rokeberg
stated the bill is intended to protect the privacy rights of
employees in a large part. He said he doesn't believe there needs
to be anymore hurdles.
REPRESENTATIVE BERKOWITZ stated it is a very (indisc.) way to
protect employee privacy rights - to take away their expectation of
privacy.
REPRESENTATIVE ROKEBERG said he objects to Representative
Berkowitz's statement. That is not what the intent of the bill is.
CHAIRMAN GREEN requested a roll call vote on the adoption of
Representative Croft's conceptual amendment. Representatives
Bunde, James and Rokeberg voted against the adoption of the
amendment. Representatives Berkowitz, Croft and Green voted in
support of the amendment. The amendment failed to be adopted by a
vote of 3 to 3.
Number 1899
REPRESENTATIVE JAMES made a motion to move HB 319, as amended, out
of committee with individual recommendations and with the attached
fiscal notes.
REPRESENTATIVE BERKOWITZ objected. He said he thinks this is a
very peculiar way for the legislature to implement the people's
right to privacy. He stated he understands that businesses need to
have ability to monitor their employees -- the preferable way for
them to articulate exactly what it is they're going to do and
specify where the employee's expectation of privacy is diminished.
Representative Berkowitz explained the bill turns his notion of
privacy on its head. It says that he doesn't have privacy unless
someone gives it to him.
REPRESENTATIVE JAMES explained she believes the legislation is an
excellent way to give employers the control over the people who are
in their employ, while still allowing them to maintain the
expectation of privacy on the issues that really matter. The
legislation is a good way to address that.
CHAIRMAN GREEN asked for a roll call vote. Representative
Rokeberg, James, Bunde and Green voted in favor of moving the bill.
Representatives Berkowitz and Croft voted against moving the bill.
So CSHB 319(JUD) moved out of the House Judiciary Standing
Committee.
HB 452 - NONPROFIT CORPORATIONS DISCLOSURES
Number 2070
CHAIRMAN GREEN announced the next item of business would be HB 452,
"An Act relating to registration, disclosures, and reports by
certain nonprofit corporations." As sponsor, he called upon Jeff
Logan to explain changes in the new proposed committee substitute.
Number 2085
JEFFREY LOGAN, Legislative Assistant to Representative Joe Green,
Alaska State Legislature, reminded members that at the previous
hearing he had illustrated how money from organizations outside of
Alaska is directed to in-state organizations for the purpose of
affecting or steering public policy debates one way or another.
The proposal was to require disclosure by the outside or foreign
corporations when they donated large sums of money. Mr. Logan
noted that testimony from the Division of Banking, Securities and
Corporations had been that such an arrangement would be virtually
unenforceable. He stated, "However, we heard support from the
committee for the end result, for the policy goal that would be
achieved by such a law." As a result, he said, they had worked
with the division and the drafter, and had come up with Version F,
0-LS1324\F, Bannister, 4/27/98.
MR. LOGAN went through the bill section by section. He told
members Section 1 simply amends AS 10.20.325 to include failing to
file the disclosure report required by the new Section 5 of this
bill, as a reason for involuntary dissolution by the commissioner.
It lists that offense with several others. Mr. Logan said this is
substantially conforming language.
Number 2245
MR. LOGAN advised members that Section 2 says the commissioner's
power to dissolve ceases if the report is filed in a timely manner.
Section 3 addresses not the corporations themselves but the
organizations doing business in the state under a certificate of
authority; it allows the commissioner to revoke the certificate if
the report required by Section 5 of the bill is not filed. Section
4 limits the commissioner's power to do so if the report is filed.
Number 2300
MR. LOGAN reported that Section 5 is the substance of the bill. It
states that a public benefit corporation that is a domestic or
foreign corporation transacting business in the state, that has
received an aggregate of $5,000 or more during the calendar year,
shall file with the department, by July 1 of each year, on forms
provided by the department, a report that lists the payments
received. He noted that the $5,000 is the same threshold used in
the previous bill version. The list must include the name and
address of the corporation, the amounts of the payments, and their
purpose. On page 3, line 27, it also adds definitions of "foreign
nonprofit corporation," "nonprofit corporation," and "public
benefit corporation." Section 6 contains conforming language.
Number 2401
REPRESENTATIVE ROKEBERG mentioned the $7.5 million general fund
fiscal note.
CHAIRMAN GREEN said that was an error and should read 7.5 thousand
dollars, for notification. He had talked with people in the
Department of Commerce and Economic Development, and he said less
notifications have been absorbed by the departments, using the
words "essentially no additional impact."
TAPE 98-77, SIDE A
Number 0006
REPRESENTATIVE JAMES asked what "foreign" means for a corporation.
CHAIRMAN GREEN said it means anything outside of the state.
Number 0057
REPRESENTATIVE ROKEBERG referred to page 4, Section 6, and asked
whether failure to file applies to all of these, with only a $5
penalty.
MR. LOGAN said this question came to the sponsor's attention as
well. People at the division had informed them that this penalty
is in addition to the filing fee. Usually the filing fee is $15,
and if a corporation files late, it would be a total of $20.
Number 0128
REPRESENTATIVE ROKEBERG suggested there is no hammer here.
CHAIRMAN GREEN indicated the hammer would be the threat of losing
their license, unless the committee wanted to create a significant
fine. He noted that unfortunately a corporation could refile with
a new name.
Number 0299
REPRESENTATIVE CROFT agreed that the ultimate hammer is the
involuntary dissolution. He made a motion to adopt a conceptual
amendment, on page 3, lines 17, 19, 20 and 22, to remove
"nonprofit," so that it would say "foreign corporation." He added
that they would not need lines 27 through 30, page 3, anymore,
because they already know what "foreign corporation" means.
Number 0293
REPRESENTATIVE ROKEBERG and CHAIRMAN GREEN objected.
REPRESENTATIVE CROFT explained that what is good for the goose is
good for the gander. To the extent they want to know who is
contributing to and influencing decision making of public benefit
corporations, they also need to know about profit-making foreign
entities that contribute. They need to know, regardless of whether
it is the Rockefeller Foundation or Exxon or any other major
business entity. Representative Croft noted that people outside of
the state have interests in the state on both sides of issues.
Whatever burden it adds, he said it is important to do for both
nonprofit and for-profit corporations that intend to influence
issues.
Number 0401
REPRESENTATIVE ROKEBERG said he would assume the amendment would
gut the bill. He asked whether they were deleting "nonprofit" or
adding "profit."
REPRESENTATIVE JAMES pointed out that it would only be for the
contributor.
Number 0446
REPRESENTATIVE CROFT specified that it was to delete "nonprofit,"
so that any public benefit corporation that receives money would
reveal the foreign corporation sources, whether nonprofit or for-
profit.
CHAIRMAN GREEN said he had misunderstood, and he apologized. He
suggested people know why for-profit corporations contribute,
however.
Number 0523
MR. LOGAN added that throughout the law, for-profit and nonprofit
corporations are treated entirely differently. Nonprofit
corporations are essentially tax-free corporations, and society has
made a deal with these groups, which are supposed to do essentially
benevolent and beneficial things with this money, not use it for
political purposes. Mr. Logan said these entities are not the same
and shouldn't be treated the same way.
Number 0602
REPRESENTATIVE BUNDE suggested they basically want to follow the
money for nonprofits. If some major corporation wants to influence
a nonprofit in Alaska, for good or ill, but Alaskans don't know who
is pulling the strings, nothing prevents them from creating a
nonprofit and then "laundering" the money through that. This would
shorten the laundry list a little bit by taking out the nonprofit
end. If some major corporation was putting money into a nonprofit,
this would give a better idea of who they were. He said he didn't
know that it is absolutely needed, but he doesn't see that it
causes any harm.
CHAIRMAN GREEN said the concern is that under a benign name, the
message might be different from the name.
Number 0696
REPRESENTATIVE JAMES stated that Representative Croft's amendment
certainly has merit, because this legislation requires nonprofits
or public benefit corporations operating within Alaska to report
where they got their money, if it is $5,000 or more. To only
include money received from foreign nonprofit corporations doesn't
tell the whole story. She pointed out that it would not be a
burden for the for-profit corporations, because it would be the
public benefit corporation within the state doing the reporting.
Number 0820
REPRESENTATIVE ROKEBERG proposed that they shouldn't delete
"nonprofit" but should add "for-profit."
REPRESENTATIVE JAMES suggested they could do it either way.
Number 0857
REPRESENTATIVE CROFT concurred. He said he thinks they both do the
same thing, but if there is some legal, technical or other reason,
they could use "foreign nonprofit and for-profit corporations."
Number 0876
REPRESENTATIVE BERKOWITZ asked why they are excluding individuals.
He said in a way this is a lot like the campaign disclosure
requirements. He suggested the best antidote is to disclose, which
allows people to review information and make their own
determinations.
Number 0936
MR. LOGAN said initially the problem defined involved large foreign
corporations called foundations that provide large sums of money.
He said if they had seen a problem with individuals, he supposed
they would have been incorporated into the draft.
Number 1052
REPRESENTATIVE ROKEBERG agreed with Representative Berkowitz
regarding the follow-the-money theory, mentioning a possible
limitation like the $250 used by the Alaska Public Offices
Commission (APOC). He also expressed concern about the language,
"derives more than 10 percent of its annual income from donations",
noting that some foundations are entirely self-funded.
MR. LOGAN suggested a representative from the division could
clarify that. He said that language is from the American Bar
Association model nonprofit corporations code, and it is the
definition of a public benefit corporation. He added, "And, again,
I'm not sure that an organization that is organized under this
chapter, and that meets ... (B), 'derives more than 10 percent of
its annual income from donations,' is the problem."
Number 1140
REPRESENTATIVE JAMES said her concern is that whenever they pass
legislation, it ought not to be just for a specific purpose. There
are public benefit corporations that are not necessarily
controversial. She suggested there could be a benefit to some
larger for-profit corporations from the reporting because it would
be picked up by the news media. Representative James said she
likes the idea of having everything that is in aggregate over
$5,000 be reported annually for these public benefit corporations,
whether it comes from nonprofit or for-profit corporations.
However, she questioned the value of having individuals in there,
and the benefit of just knowing a person's name. She said they
shouldn't lose track of the reason for doing this, which is
knowledge of where the money comes from that tries to affect policy
or public attitudes.
Number 1276
REPRESENTATIVE ROKEBERG referred to individual foundations and
suggested use of the word "person" would catch all. He said he can
think of many individual foundations that don't receive
contributions, at least not 10 percent of their annual income. He
cited examples.
REPRESENTATIVE CROFT pointed out that it says "or."
REPRESENTATIVE BERKOWITZ specified that it is on page 4.
Number 1342
CHAIRMAN GREEN called a brief at-ease, then called the meeting back
to order. He offered a friendly amendment, "that throughout where
we have 'from a foreign nonprofit corporation,' that we just drop
'foreign nonprofit' and say ... whether it's contributions from
corporations."
REPRESENTATIVE CROFT agreed to that.
REPRESENTATIVE JAMES noted that it would cover in-state and out-of-
state corporations both.
CHAIRMAN GREEN said in-state, out-of-state, for-profit and
nonprofit.
Number 1386
REPRESENTATIVE BERKOWITZ suggested it would require a title change.
CHAIRMAN GREEN concurred.
REPRESENTATIVE ROKEBERG noted that subsection (1) on the bottom of
page 3, the definition of "foreign nonprofit corporation," would be
deleted.
CHAIRMAN GREEN agreed, specifying that they would delete lines 27
and 28 of page 3.
Number 1402
REPRESENTATIVE BERKOWITZ pointed out that they are picking up all
kinds of groups, including churches.
MR. LOGAN said under the definition listed on page 3, line 31, a
public benefit corporation does not include a religious
organization.
REPRESENTATIVE ROKEBERG asked why it wouldn't include a church.
MR. LOGAN replied that a religious organization is not organized
for a public or charitable purpose.
REPRESENTATIVE CROFT said it is an "or."
Number 1441
REPRESENTATIVE BERKOWITZ suggested it would also sweep up things
like boys' and girls' clubs, Special Olympics, and so forth.
MR. LOGAN asked someone from the department to correct him if he
was wrong, then said he believes those organizations would be
defined as mutual benefit corporations.
REPRESENTATIVE BERKOWITZ expressed concern that they might be
putting a burden on apolitical organizations.
Number 1501
REPRESENTATIVE ROKEBERG inquired about putting in mutual benefit
corporations and defining them, so that there is clear statutory
grounds for those reading the law. He asked whether it is already
in statute.
Number 1530
MR. LOGAN replied that he doesn't believe it is in statute, and he
isn't sure the drafters would add it if it isn't referred to in the
bill. He suggested saying a public benefit corporation does not
mean a mutual benefit corporation.
CHAIRMAN GREEN said that would be a good idea. He suggested
including that as part of subsection (3), in the same conceptual
amendment.
Number 1559
REPRESENTATIVE CROFT replied that he would prefer to keep it clean.
He proposed doing that as a second amendment.
Number 1565
CHAIRMAN GREEN agreed to that. Noting that conceptual Amendment 1
was dropping "foreign nonprofit", he asked whether there was an
objection. There being none, Amendment 1 was adopted.
Number 1588
REPRESENTATIVE ROKEBERG made a motion to add, in the vicinity of
lines 6 and 7 on page 4, the exclusion of mutual benefit
corporations, and to add a definition, as appropriate, for mutual
benefit corporations, with the understanding that these are usually
religious, youth and other activities. He asked Mr. Logan where
that is defined.
MR. LOGAN replied that it is an organization organized for the
mutual benefit of its members, such as a country club or a booster
club at the high school. It is defined in the American Bar
Association model nonprofit corporations code.
Number 1635
CHAIRMAN GREEN agreed to use that definition. He asked whether
there was any objection to Amendment 2; there was none.
REPRESENTATIVE BUNDE questioned whether the $15 registration fee
would cover paperwork costs. He said he didn't want to make an
amendment, then suggested the House Finance Committee get testimony
about the actual cost and have the application fee reflect that.
CHAIRMAN GREEN said that seems reasonable.
MR. LOGAN noted that the bill has no House Finance Committee
referral because there is not a fiscal note.
CHAIRMAN GREEN added that there is a zero fiscal note to offset the
$7.5 million error.
Number 1677
REPRESENTATIVE BUNDE recommended that some note go along with the
bill, in case it gets to the House Finance Committee.
CHAIRMAN GREEN responded, "If it ends up there, we certainly
shall."
Number 1714
REPRESENTATIVE BUNDE made a motion to move HB 452 [Version F, as
amended] from committee with individual recommendations and
attached fiscal note.
CHAIRMAN GREEN asked whether there was any objection. There being
none, CSHB 452(JUD) moved from the House Judiciary Standing
Committee.
CSSB 284(STA) - CRUELTY TO ANIMALS
Number 1759
CHAIRMAN GREEN announced the final item of business would be CSSB
284(STA), "An Act relating to cruelty to animals."
Number 1774
REPRESENTATIVE BUNDE made a motion to move CSSB 284(STA) from
committee.
REPRESENTATIVE JAMES noted that it would be with individual
recommendations and any attached fiscal notes.
CHAIRMAN GREEN asked whether there was any objection. There being
none, CSSB 284(STA) moved from the House Judiciary Standing
Committee.
ADJOURNMENT
Number 1822
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:08 p.m.
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