Legislature(1999 - 2000)
02/07/2000 01:25 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
February 7, 2000
1:25 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Jeannette James
COMMITTEE CALENDAR
SENATE BILL NO. 166
"An Act relating to the amendment and revocation of spouses'
community property agreements and community property trusts; and
providing for an effective date."
- MOVED SB 166 OUT OF COMMITTEE
CS FOR SENATE BILL NO. 24(FIN) am
"An Act relating to regulations; amending Rule 65, Alaska Rules of
Civil Procedure; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 253
"An Act establishing a school disciplinary and safety program; and
providing for an effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: SB 166
SHORT TITLE: COMMUNITY PROPERTY AGREEMENT/TRUSTS
Jrn-Date Jrn-Page Action
4/28/99 1151 (S) READ THE FIRST TIME - REFERRAL(S)
5/07/99 (S) JUD AT 1:30 PM BELTZ 211
5/07/99 (S) -- MEETING CANCELLED --
5/10/99 (S) JUD AT 1:30 PM BELTZ 211
5/10/99 (S) SCHEDULED BUT NOT HEARD
5/11/99 (S) JUD AT 1:40 PM FAHRENKAMP 203
5/11/99 (S) SCHEDULED BUT NOT HEARD
5/12/99 (S) JUD AT 2:30 PM BELTZ 211
5/12/99 (S) MOVED OUT OF COMMITTEE
5/12/99 (S) MINUTE(JUD)
1/12/00 (S) MINUTE(RLS)
1/21/00 1151 (S) JUD
5/13/99 1414 (S) JUD RPT 1DP 2NR
5/13/99 1414 (S) DP: TAYLOR; NR: ELLIS, DONLEY
5/13/99 1414 (S) ZERO FISCAL NOTE (LAW)
1/18/00 1992 (S) RULES TO CALENDAR AND 2 OR 01/18/00
1/18/00 1992 (S) ZERO FISCAL NOTE (LAW)
1/18/00 1993 (S) READ THE SECOND TIME
1/18/00 1993 (S) ADVANCED TO THIRD READING
UNAN CONSENT
1/18/00 1993 (S) READ THE THIRD TIME SB 166
1/18/00 1994 (S) PASSED Y18 N1 A1
1/18/00 1994 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
1/18/00 1994 (S) DONLEY NOTICE OF RECONSIDERATION
1/20/00 2018 (S) RECON TAKEN UP - IN THIRD READING
1/20/00 2018 (S) PASSED ON RECONSIDERATION Y19 N- E1
1/20/00 2019 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
1/20/00 2019 (S) TRANSMITTED TO (H)
1/21/00 1946 (H) READ THE FIRST TIME - REFERRALS
1/21/00 1946 (H) JUD
2/07/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 24
SHORT TITLE: REGULATIONS: ADOPTION & JUDICIAL REVIEW
Jrn-Date Jrn-Page Action
1/08/99 20 (S) PREFILE RELEASED - 1/8/99
1/19/99 20 (S) READ THE FIRST TIME - REFERRAL(S)
1/19/99 20 (S) JUD, FIN
1/29/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
1/29/99 (S) HEARD AND HELD
1/29/99 (S) MINUTE(JUD)
2/08/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
2/08/99 (S) HEARD AND HELD
2/08/99 (S) MINUTE(JUD)
2/10/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
2/10/99 (S) SCHEDULED BUT NOT HEARD
2/22/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
2/22/99 (S) MOVED CS (JUD) OUT OF COMMITTEE
2/22/99 (S) MINUTE(JUD)
2/23/99 338 (S) JUD RPT CS 2DP 2NR NEW TITLE
2/23/99 338 (S) DP: HALFORD, DONLEY;
NR:TORGERSON, ELLIS
2/23/99 338 (S) FISCAL NOTES (DOT, DPS, DHSS,
2/23/99 338 (S) DNR, REV, LAW, F&G, ADM,
LABOR-6, DEC,
2/23/99 338 (S) DOE, DCED-3, GOV-2, COURT)
2/23/99 338 (S) ZERO FISCAL NOTES (DPS,
2/23/99 338 (S) LABOR, DCRA)
3/05/99 423 (S) FISCAL NOTES TO CS (GOV, DCED,
3/05/99 423 (S) DOE-2, DEC, F&G, DHSS, LABOR, LAW,
3/05/99 423 (S) DNR, DPS, REV, DOT, COURT)
3/05/99 423 (S) PREVIOUS FN APPLIES TO CS (GOV)
3/05/99 423 (S) INDETERMINATE FN TO CS (ADM)
3/05/99 423 (S) ZERO FN TO CS (F&G)
3/09/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/09/99 (S) HEARD AND HELD
3/09/99 (S) MINUTE(FIN)
3/18/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/18/99 (S) MINUTE(FIN)
3/22/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/22/99 (S) SCHEDULED BUT NOT HEARD
3/24/99 (S) FIN AT 6:00 PM SENATE FINANCE 532
3/24/99 (S) MINUTE(FIN)
3/29/99 (S) FIN AT 8:00 AM SENATE FINANCE 532
3/29/99 (S) HEARD AND HELD
3/29/99 (S) MINUTE(FIN)
3/31/99 (S) FIN AT 6:00 PM SENATE FINANCE 532
3/31/99 (S) MOVED CS(FIN) OUT OF COMMITTEE
3/31/99 (S) MINUTE(FIN)
4/01/99 767 (S) FIN RPT CS 3DP 4NR NEW TITLE
4/01/99 767 (S) DP: TORGERSON, PARNELL, DONLEY
4/01/99 767 (S) NR: GREEN, PETE KELLY, LEMAN, WILKEN
4/06/99 (S) RLS AT 3:30 PM FAHRENKAMP 203
4/06/99 (S) MINUTE(RLS)
4/06/99 793 (S) FNS TO CS (S.FIN/DNR, DEC, F&G, LAW)
4/06/99 793 (S) INDETERMINATE FN TO CS (COURT)
4/08/99 821 (S) ZERO FISCAL NOTES TO CS (GOV-2)
4/13/99 (S) RLS AT 11:40 AM FAHRENKAMP 203
4/13/99 (S) MINUTE(RLS)
4/14/99 915 (S) RULES TO CALENDAR 1DNP 4/14/99
4/14/99 916 (S) READ THE SECOND TIME
4/14/99 916 (S) FIN CS ADOPTED UNAN CONSENT
4/14/99 917 (S) AM NO 1 ADOPTED UNAN CONSENT
4/14/99 917 (S) ADVANCED TO THIRD READING
UNAN CONSENT
4/14/99 917 (S) READ THE THIRD TIME CSSB 24(FIN) AM
4/14/99 918 (S) PASSED Y14 N5 E1
4/14/99 918 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/14/99 918 (S) COURT RULE(S) SAME AS PASSAGE
4/14/99 918 (S) ELLIS NOTICE OF RECONSIDERATION
4/15/99 936 (S) RECONSIDERATION NOT TAKEN UP
4/15/99 936 (S) TRANSMITTED TO (H)
4/16/99 839 (H) READ THE FIRST TIME - REFERRAL(S)
4/16/99 839 (H) JUD, FIN
1/28/00 (H) JUD AT 1:00 PM CAPITOL 120
1/28/00 (H) <Bill Postponed to 2/2/00>
2/02/00 (H) JUD AT 1:00 PM CAPITOL 120
2/02/00 (H) Heard & Held
2/02/00 (H) MINUTE(JUD)
2/07/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 253
SHORT TITLE: SCHOOL DISCIPLINARY AND SAFETY PROGRAM
Jrn-Date Jrn-Page Action
5/19/99 1653 (H) READ THE FIRST TIME - REFERRAL(S)
5/19/99 1653 (H) HES
1/18/00 (H) HES AT 3:00 PM CAPITOL 106
1/18/00 (H) Heard & Held
1/18/00 (H) MINUTE(HES)
1/20/00 (H) HES AT 3:00 PM CAPITOL 106
1/20/00 (H) Moved CSHB 253(HES) Out of Committee
1/20/00 (H) MINUTE(HES)
1/21/00 1951 (H) HES RPT CS(HES) NT 4DP
1/21/00 1952 (H) DP: GREEN, DYSON, COGHILL, WHITAKER
1/21/00 1952 (H) ZERO FISCAL NOTE (DOE)
1/21/00 1952 (H) JUD REFERRAL ADDED AFTER HES
1/21/00 1952 (H) REFERRED TO JUDICIARY
1/21/00 1976 (H) COSPONSOR(S): WHITAKER
2/02/00 (H) JUD AT 1:00 PM CAPITOL 120
2/02/00 (H) Heard & Held
2/02/00 (H) MINUTE(JUD)
2/07/00 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
HANS NEIDIG, Legislative Administrative Assistant
to Senator Dave Donley
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
POSITION STATEMENT: Explained changes made to SB 24, Version P,
and cross-referenced the changes to Version E.
JANICE ADAIR, Director
Division of Environmental Health
Department of Environmental Conservation
555 Cordova Street
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on SB 24.
CHRISTOPHER KENNEDY, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Testified on SB 24.
KEVIN SAXBY, Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Testified on SB 24.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
P.O. Box 201844
Anchorage, Alaska 99520-1844
POSITION STATEMENT: Testified in opposition to HB 253, citing lack
of balance between the need for order in classrooms and students'
constitutional rights, among other concerns.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 253.
PAULA HARRISON
P.O. Box 4533
Palmer, Alaska 99645
POSITION STATEMENT: Expressed concerns about HB 253 on behalf of
Matanuska-Susitna Borough School District.
PAMELA WATTS, Executive Director
Advisory Board on Alcoholism and Drug Abuse
Department of Health and Social Services
P.O. Box 110608
Juneau, Alaska 99811-0608
POSITION STATEMENT: Testified on CSHB 253(HES) about the necessity
of provisions relating to screening and referral for students with
substance abuse problems, in particular.
CARL ROSE, Executive Director
Association of Alaska School Boards
316 West Eleventh Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified on CSHB 253(HES).
ACTION NARRATIVE
TAPE 00-9, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:25 p.m. Members present at the call to order
were Representatives Kott, Rokeberg, Murkowski and Kerttula.
Representatives Green and Croft arrived as the meeting was in
progress.
SB 166 - COMMUNITY PROPERTY AGREEMENT/TRUSTS
[Note: See minutes for HB 220, the companion bill, heard by the
House Judiciary Standing Committee on January 19, 2000.]
Number 0036
CHAIRMAN KOTT announced the first order of business would be SENATE
BILL NO. 166, "An Act relating to the amendment and revocation of
spouses' community property agreements and community property
trusts; and providing for an effective date." He explained that
the committee had reviewed the House version, HB 220, last week,
and as far as he can tell, the two are identical.
Number 0085
REPRESENTATIVE ROKEBERG made a motion to move SB 166 from the
committee with individual recommendations and the attached zero
fiscal note. There being no objection, SB 166 was moved from the
House Judiciary Standing Committee.
SB 24 - REGULATIONS: ADOPTION & JUDICIAL REVIEW
CHAIRMAN KOTT announced the next order of business would be CS FOR
SENATE BILL NO. 24(FIN) am, "An Act relating to regulations;
amending Rule 65, Alaska Rules of Civil Procedure; and providing
for an effective date." A proposed House committee substitute
(CS), Version P, had been adopted as a work draft and discussed at
the previous hearing on February 2, 2000.
Number 0165
REPRESENTATIVE MURKOWSKI made a motion to adopt the new proposed
House CS, version 1-LS0274\E, Bannister, 2/7/00, as a work draft.
There being no objection, Version E was before the committee.
Number 0206
HANS NEIDIG, Legislative Administrative Assistant to Senator Dave
Donley, Alaska State Legislature, came before the committee to
explain the changes. Noting that he was working from Version P, he
said he would try to cross-reference the changes to Version E,
which he had just received. He explained the changes as follows:
1) The first change was made to page 2, line 29: the term "mail"
was deleted and the term "furnish" was inserted, a change
suggested by [Chris Kennedy of the Department of Law (DOL)].
2) The second change was made to page 4, line 8: the entire
subsection (3) was deleted, a change made after considering
comments made by the department and members of the House
Judiciary Standing Committee.
3) The third change was made to page 5, lines 9-10: language was
added to require the [Department of Environmental
Conservation] to provide a report explaining their "good faith
effort," if they chose to utilize this clause to circumvent
the requirements of subparagraphs (i) and (j), a change made
after considering concerns expressed by the current committee
at the last meeting [February 2, 2000]. That change can be
found on page 8, lines 6-13, of Version E.
4) The fourth change added a five-year sunset clause. That
change can be found on page 8, Sections 15 and 16, of Version
E.
5) The fifth change, a suggestion by Senator Loren Leman, allows
the lieutenant governor to require state agencies to use
abbreviated public notices in newspapers of general
circulation. It recognizes the advances in technology by
allowing notices to be furnished rather than mailed, thereby
utilizing the Internet. That change is found in Sections 2,
6, 7, 8, 9 and 11, of Version E.
Number 0495
JANICE ADAIR, Director, Division of Environmental Health,
Department of Environmental Conservation (DEC), came before the
committee to testify. Noting that she'd worked for the legislature
for four years, then had gone to the DEC to help draft regulations
on a bill that she'd worked on for a year, she stated, "I can't
tell you how many times I said to myself, 'I wonder what we meant
by that,' even though only a few months had passed." Ms. Adair
pointed out that writing regulations is a very different process
from what most people think it is, which this current draft
legislation confirms for her.
MS. ADAIR reminded members that regulations rely on a number of
statutes. An authority line follows each enacted regulation, and
the statutes giving the agency authority to adopt that regulation
are all listed there; rarely does a regulation list just one
statute. For example, a statute says, "A person may not pollute or
add to the pollution of the air, land, subsurface land or water of
the state." The intent seems clear that pollution is not allowed.
However, that statute is tempered by others that the DEC relies on
when adopting a regulation that does allow pollution. That is what
most of the DEC's regulations do: they allow pollution in some
form to occur. Ms. Adair pointed out it is also difficult for an
agency to really understand the intent of one legislature from
another when statutes are amended.
MS. ADAIR told members the bill before them is very
process-oriented but doesn't yield significant public benefits for
that process. She believes it attempts to get to frustration with
the Administrative Procedure Act (APA) and how regulations are
adopted, a frustration she shares. The packet of information she'd
provided outlines some things done at the DEC to try to make the
regulatory process more meaningful to the public. The notice
requirements are written in "legalese" and printed in the legal
notice section of the newspaper; therefore, the DEC has created a
"quick summary" that gives people, in plain English, an better idea
about what the regulations do and whether they are affected
personally. The DEC has also created "an amazing guide" to
commenting on regulations, including what to do and how the process
works. With the draft proposal, the DEC also sends along a "dear
interested party" letter outlining, in plain English, what
regulations are proposed, the changes, and what the DEC believes
the impact will be on that interested party, so that people don't
necessarily have to go through the whole regulatory package to see
if their interests are being affected.
MS. ADAIR next discussed the "responsiveness summary" prepared at
the end of the process. She explained that if people take time to
read regulations and provide comments, they deserve an answer as to
what the DEC did with those comments. The copy she'd provided is
from the DEC's recently enacted drinking water regulations, a huge
project affecting 3,000-plus drinking water systems across the
state. The DEC had made many changes based on numerous public
comments received, and then had provided this responsiveness
summary to people who commented.
MS. ADAIR pointed out the bill's de facto cost-benefit analysis.
It says the DEC cannot have a valid or effective regulation if it
imposes any material operating or capital cost without yielding
significant public benefits; she suggested Mr. Kennedy from the
Department of Law (DOL) had pointed out the difficulty with that
language. The final item in the packet is a current statute
requiring the DEC, whenever proposing a regulation, to give special
attention to any public comment they receive regarding the cost to
comply with the proposal and any alternate practical methods of
complying. If the DEC has received such a comment, the
responsiveness summary will explain what it was and what the DEC
did about it. A person who had commented could certainly take
issue at that point, if the DEC had missed the mark.
Number 0960
MS. ADAIR turned attention to another problem with the APA not
addressed in this bill, which perhaps exacerbates it. There is an
inaccurate perception that when the DEC puts something out for
comment, they already know what they will do. However, that is not
the case. The DEC really does use the public comment period to
solicit ideas from the public about their proposal.
MS. ADAIR pointed out the difficulty, when receiving a comment, of
being sure of what the person meant or how to change the proposed
regulation to meet that concern. Current law bars the DEC from
talking to the people that have commented; they have to open the
public comment period back up for at least 30 days in order to
solicit clarification about what a person was trying to say or what
the DEC believes will solve the problem. That has been problematic
for the department in any number of instances; she cited solid
waste regulations as an example where the proposals went out to
public notice four or five times simply to get information back
from people who had commented, because it was the only process
available.
MS. ADAIR expressed concern that adding more process wouldn't be in
the state's best interest; that includes expanding what has to be
in a public notice, when it is already so difficult to read for lay
people, and requiring the DEC to report to the legislature. She
said it would be non-value-added activity.
MS. ADAIR reported that amendments Senator Leman has offered in the
new proposed CS are from a bill that the Governor introduced about
three years ago; she was part of the work group that came up with
some of those ideas. The irony is that those amendments provide
for abbreviated notices because of the recognition that public
notices are already too long and convoluted for the public to
understand. And now this bill takes the DEC, which often has
controversial proposals out there, and says to make the notices
longer and more convoluted. Ms. Adair asserted that there just
doesn't seem to be a good mesh there in the legislative intent.
Number 1142
MS. ADAIR said she believed Chris Kennedy of the DOL had pointed
out a lot of the confusion. For example, how would the two-year
time line affect regulations where maybe only one of the statutes
upon which the regulation relies for its authority has been
amended, but the others have not been? If they follow the
negotiated regulation process that Representative James had
shepherded through the legislature last year or the year before,
two years probably isn't long enough. Ms. Adair stated that
"reg-neg" is normally done on something fairly controversial, and
it is critical to take the time and follow the process through, and
to listen to the people that one is negotiating with. To do
otherwise violates the spirit of negotiated rule making.
MS. ADAIR suggested other questions may be drafting issues. For
example, the bill provides that the DEC will give notice to people
who have commented. But since they haven't had an opportunity to
comment yet, she isn't sure who those people are. Stating her
belief that Deborah Behr, a regulations review attorney from the
DOL, had testified, she said Ms. Behr is the hurdle that the DEC
must get through to adopt regulations. Ms. Adair stated:
We've talked about what she would need from us if this
bill were to be law to demonstrate ... that we had
considered the cost and the benefit; I don't know that we
would really be able to get through that. We don't
necessarily know costs per se. We can presume that there
will a cost, as Chris points out in his letter. Some of
those costs are individual business costs, but the
benefit may also be an individual benefit and not a
public benefit. And that's of concern.
Number 1294
MS. ADAIR advised members that it is confusing to the DEC, since
every regulation has to list its statutory authorities, how
regulation may thwart or circumvent statute. She recalled an
instance in which the DEC had proposed to change a seafood
processing regulation to clarify that farmed seafood products
should be labeled "farmed," with the state of origin noted, so it
is clear that the farmed fish did not come from Alaska. However,
in reviewing the DEC's authorities to adopt such a regulation, the
DOL correctly pointed out that the farmed fish statutes refer only
to farmed salmon. Therefore, the DEC was unable to adopt that
regulation because they had expanded it from the statute, saying
farmed seafood products as opposed to farmed salmon.
MS. ADAIR emphasized that those authorities are checked out by the
DOL every time the DEC does a regulation. She surmised that the
"thwarting" language in the bill has to do with intent, which is
very difficult to discern. She said conference committee
proceedings may not be recorded, and if a bill has gone through a
conference committee, it may be impossible to know the intent.
Furthermore, bills may be amended on the floor; she cited an
example regarding oil spill legislation where the DOL determined
the DEC wasn't able to do what the maker of the amendment had
intended because the language hadn't been written to allow for
that. She concluded, "So that's another problem that I see with
language like this. Your attorneys and our attorneys don't always
agree, and that's not uncommon."
Number 1479
REPRESENTATIVE MURKOWSKI asked Ms. Adair whether the DOL has an
assigned person to review DEC regulations, for example, so that
there is an area of expertise.
MS. ADAIR answered that there are two processes. There are
departmental attorneys who specialize in certain areas; for
example, the department will use one attorney for drinking water
issues and another for food related issues. She explained that
when the comments come back in, the department will work with the
same attorney to help draft any changes to the regulations based on
those comments. The department will also work with Deborah Behr
and Steve Weaver, the regulation attorneys from the DOL, to ensure
that the wording is right and that it follows the drafting manual.
Number 1554
REPRESENTATIVE GREEN asked Ms. Adair whether there is a chance for
error since the attorney may not be involved in the process and
aware of the intent. In other words, is that why sometimes the
regulations don't comply with a piece of legislation?
MS. ADAIR replied there is constant communication between the
attorneys involved and the department. For example, the department
talks all the time with the regulation attorney to ensure that a
drafting change for clarity doesn't change the substance.
Number 1621
REPRESENTATIVE CROFT referred to a letter dated 2/7/00 from the
DOL. He asked Ms. Adair whether the scenario on page 3 of that
letter talks about an ecotour stopping development in the Colville
River delta. He further asked whether that refers to page 2, lines
29-30, of Version E of the bill.
MS. ADAIR affirmed both.
REPRESENTATIVE CROFT asked Ms. Adair how an argument can be made
using that language in relation to the Colville River delta
example.
MS. ADAIR said she would defer to Christopher Kennedy, author of
the letter.
REPRESENTATIVE CROFT asked Ms. Adair whether she is familiar with
the actual permitting of that example.
MS. ADAIR said she isn't familiar with that exact one, but she is
familiar with that argument having been made in other cases.
REPRESENTATIVE CROFT asked Ms. Adair whether she is familiar with
the Municipality of Anchorage [Point Woronzof] example on page 5 of
the letter. He further asked what section of the bill relates to
that example.
MS. ADAIR affirmed that she is familiar with it. She said it
refers to page 6, line 13, of Version E. The proposal for Point
Woronzof was site-specific criteria for total chromium, when the
intent was Chromium 6. Although a small change, it is a big change
in effect; the DOL and the DEC believe the bill would require
renotification in that case. She noted that in the case of Point
Woronzof, the department did not go out to a public notice again
because it was specific to the Municipality of Anchorage; it was
what they wanted, and there wasn't any public comment on the
proposal. The department went ahead and made the correction.
REPRESENTATIVE CROFT asked Ms. Adair what the current bill would
require the department to do in that case.
MS. ADAIR replied that the bill would require the department to go
back out for public notice before adopting it.
REPRESENTATIVE CROFT asked Ms. Adair what kind of time line it
would be: 30 days? 90 days? One year?
MS. ADAIR said she isn't sure whether the two-year provision would
apply. She doesn't believe 90 days would apply because that is for
after a statute has been adopted. She thinks it would be 30 days
at a minimum, as called for under the APA. Depending on the
comments, the department might have to go back out again for public
comment.
REPRESENTATIVE CROFT said it would be at least 30 days, then, and
another publication cycle.
MS. ADAIR concurred, pointing out that the department would lose
its place in line at the DOL since the regulation attorneys attend
to everybody's regulations throughout the state.
CHAIRMAN KOTT noted that Christopher Kennedy was online.
Number 1890
REPRESENTATIVE CROFT asked Mr. Kennedy to explain how an ecotourism
business would have the right to sue to stop development in the
Colville River delta example, given the language on page 2, lines
28-30, of Version E.
Number 1925
CHRISTOPHER KENNEDY, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law, answered
via teleconference from Anchorage. He explained that he had used
the ecotourism group and Alpine field example simply to demonstrate
how the concept of commercial activity is sometimes broader than
what is thought. In actual litigation, some have used the
ecotourism business as a way of getting standing to sue. The
actual Alpine litigation was not a challenge to a DEC regulation.
He was just looking for an example of how this sort of thinking has
been used in the past. An analogous situation might be transferred
to future litigation under the new standard of review that is being
proposed in SB 24.
REPRESENTATIVE CROFT stated, then, that they would be a commercial
enterprise and able to argue that this special water criterion
isn't necessarily producing significant and public benefits.
MR. KENNEDY agreed. In that litigation, he explained, they said
they could no longer use certain channels of the river because of
disfigurement from the development activity. Under the bill, they
could argue that imposes a cost on them because they would need to
travel further or somehow alter their trip itinerary in response to
the development. Had there been a DEC regulation at issue in that
situation, then that would bring them into the cost-benefit
analysis that Ms. Adair discussed earlier.
Number 2035
REPRESENTATIVE CROFT asked Mr. Kennedy whether a halibut charter
operator in Homer could challenge a platform waste regulation for
one of the oil rigs.
MR. KENNEDY affirmed that, saying that example has crossed the
DOL's mind as well. He thinks all of the discharges are handled
through so-called "mixing zone permits," which are not specific
regulations but which, in the future, might be handled through
site-specific water quality criteria that are regulations. The
Municipality of Anchorage example that the committee has been
discussing is a regulation of that kind.
Number 2077
REPRESENTATIVE CROFT mentioned a big game guide in the Arctic
National Wildlife Refuge (ANWR), asking whether there are DEC
permits out there. He said he is trying to determine how far this
could go.
MR. KENNEDY answered, "Yes, I think that's correct."
REPRESENTATIVE CROFT noted that the bill sets up two different
burdens of proof: one by clear and convincing evidence, and one by
a preponderance of evidence. In his letter, Mr. Kennedy makes the
argument that these types of legal standards are used in weighing
facts. He asked Mr. Kennedy to explain that further.
MR. KENNEDY, as an example, said when a regulation is challenged by
a litigant, the DOL approaches the court with a motion for summary
judgment, asking the court to rule on whether the regulation is
valid. This has occurred with DEC regulations in connection with
Prince William Sound, where a challenge was brought - by a man
living in Whittier as a subsistence fisherman - to regulations
pertaining to tanker traffic. The benefit to the department is
that these types of challenges can be resolved quickly and
inexpensively, which is how the courts traditionally handle them.
The courts see the issue of whether a regulation fits with
legislative intent as being an objective question, which is
resolved by looking at the language of the statute itself, the
underlying regulation and the legislative history. In fact, the
court may do its own research on the issue and issue a ruling.
Although certainly lawyers play a role in bringing information to
the court's attention, there is no trial, and the concept of burden
of proof doesn't really enter into it at that stage.
Number 2200
REPRESENTATIVE CROFT asked Mr. Kennedy whether the burdens of proof
work independently. That is, could one sue and a court rule that
yes, this meets the intent of the statute but decide to
independently review under (B) to see whether it has significant
public benefits?
MR. KENNEDY said that is the way he believes Version P is drafted.
Assuming Version E is the same, the standards are independent, and
the regulation would have to meet them.
REPRESENTATIVE CROFT remarked that he is pretty sure that portion
is the same for both versions.
Number 2278
REPRESENTATIVE KERTTULA said she wanted to flesh out a better
understanding of what happens when rewriting a regulation that
would substantially change the substance but which, under the
current situation, wouldn't normally be considered significant
enough to require additional notice. Referring to the chromium
example, she suggested one could wind up re-noticing a lot of
things that everyone had already commented on, because of the
change of one word.
MR. KENNEDY replied that he thinks it could happen. The Point
Woronzof example helps in particular to understand that. The
change from chromium to Chromium 6 is one everyone had agreed on.
It was a significant change in the sense that, if the limit had
remained at chromium instead of Chromium 6, it would have put an
onerous burden on the Municipality of Anchorage. Going back out to
notice would have served no benefit at all; it would have simply
been jumping through a hoop to get through the formalities.
Number 2353
REPRESENTATIVE MURKOWSKI referred to testimony the previous week
about language in the Forest Practices Act (FPA) that appears
similar to that in SB 24; she said she hadn't reviewed that
language. She asked whether this is, in fact, the same application
of the FPA requirement for yielding significant public benefits, or
if there is a difference.
MR. KENNEDY said he is somewhat familiar with it but would defer to
Kevin Saxby, who works closely with the FPA. He affirmed that the
language in the FPA is related to the language in SB 24; it seems
to have been the starting point for drafting, but it works
differently. The most important difference to him is that under
the FPA the underlying standard of review, written into the APA
right now, was not taken away from review of forestry regulations.
Therefore, AS 44.62.030, the 1959 standard of review, still applies
to forestry regulation; the FPA language was added as an overlay to
that, to encourage agencies to more closely consider the issue of
costs. The language is not the same, however. Mr. Kennedy read
[from AS 41.17.080(d)]:
The commissioner shall adopt only those regulations
necessary to accomplish the purposes of this chapter and
shall avoid regulations that increase operating costs
without yielding significant benefits to public
resources.
MR. KENNEDY pointed out that the actual test for the regulations,
if they are challenged, remains the 1959 standard that has been
worked out over the years.
REPRESENTATIVE MURKOWSKI said she would look at the FPA herself.
TAPE 00-9, SIDE B
Number 0001
REPRESENTATIVE CROFT referred to the language relating to capital
or operating costs on industrial, commercial, or other development
activity without yielding significant public benefits. He said
that part is similar. He asked whether the distinction is really
that one is a directive to the commissioner "that one cannot sue
on," whereas the other is clearly something that contemplates a
lawsuit and a court testing it out.
MR. KENNEDY deferred to Kevin Saxby to answer whether it is merely
a directive.
Number 0039
KEVIN SAXBY, Assistant Attorney General, Natural Resources Section,
Civil Division (Anchorage), Department of Law, responded via
teleconference from Anchorage that he wouldn't say it is merely a
directive. However, as he reads the statutes, certainly the
proposed changes in this bill create a greater ability for someone
to argue that the standard has not been met. In contrast, under
the FPA, the courts are likely to look at the older standard, the
"arbitrary and capricious," necessary to meet the statutory
purposes.
Number 0067
REPRESENTATIVE CROFT asked Mr. Saxby whether anyone has ever sued
under Section [080](D) of the FPA.
MR. SAXBY indicated he hasn't defended any such cases, and he has
been on this almost since the Act was adopted. Therefore, he
doesn't think so.
REPRESENTATIVE CROFT noted that the committee has written testimony
from Richard Harris of Sealaska Corporation that asserts nobody has
sued.
Number 0104
CHAIRMAN KOTT closed the meeting to public testimony. He announced
the intention of holding the bill over to iron out some issues
brought up during the past two hearings, as well as to give
committee members time to review the new proposed CS. He indicated
he had also asked Legislative Legal Counsel [Legislative Affairs
Agency] to respond to three issues, which he is still waiting for.
[SB 24 was held over.]
CHAIRMAN KOTT called an at-ease at 2:15 p.m., then called the
meeting back to order at 2:25 p.m.
HB 253 - SCHOOL DISCIPLINARY AND SAFETY PROGRAM
Number 0146
CHAIRMAN KOTT announced the final order of business would be HOUSE
BILL NO. 253, "An Act establishing a school disciplinary and safety
program; and providing for an effective date." The committee had
adopted a proposed committee substitute, Version K, as a work draft
on February 2, 2000, and had heard considerable testimony.
Number 0156
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union
(AkCLU), testified via teleconference from Anchorage. She noted
that she had faxed a position paper to the committee in opposition
to HB 253. Ms. Rudinger explained that, in a nutshell, AkCLU's
opposition to HB 253 stems from a lack of balance between the
legitimate need for order in the classrooms and the need to respect
students' constitutional rights. Furthermore, she believes this
bill is bureaucracy at its worst and is bad public policy, with
state government telling local school districts that they must
adopt community standards and then deciding whether that has been
accomplished.
MS. RUDINGER indicated both statewide and national branches of the
organization have heard from hundreds of students and parents over
the past ten months, especially, about concerns of overreaction by
schools to the tragedy at Columbine High School in Colorado.
Although acknowledging the need for order in the classrooms, the
AkCLU believes students have constitutional rights, as upheld by
both the Alaska Supreme Court and courts around the country when it
comes to free expression, individuality and due process - sorely
lacking in HB 253.
MS. RUDINGER reported that the AkCLU has heard from students around
the state about new "one strike and you're out" policies, under
which groups of students are being hauled in for disciplinary
action and suspended or harshly sanctioned when even the alleged
victim claims he wasn't a victim; she cited an example at Service
High School in Anchorage involving a football team. Ms. Rudinger
acknowledged that HB 253 only deals with incidents in the classroom
but said she was using this as an example of how school
administrators overreact and crack down on innocent behavior.
MS. RUDINGER agreed that anything truly disruptive in the classroom
should be dealt with. However, the AkCLU believes there is a
problem with vagueness in HB 253. At a minimum, it talks about
standards for respect and honesty. However, respect is not
behavior; it is internal, something one feels. She recalled the
Louisiana legislature's decision to enforce respect by passing a
bill requiring students to address teachers by "sir" or "ma'am";
there was even a proposal that students stand at attention when the
teacher walked in the room. Different people have different ideas
of what respect is, and she believes HB 253 goes way too far
regarding the extent to which the government mandates that. She
referred members to the AkCLU's position paper, then restated that
enforcing respect and honesty can lead to a lot of problems when
not clearly defined, and when the state will decide whether
communities have actually set their own standards sufficiently to
meet the state's requirements.
Number 0381
MS. RUDINGER challenged the assertion that there won't be a fiscal
note associated with this. Although she couldn't provide
specifics, she pointed out that the state will have to decide
whether schools are complying and school districts are enforcing
community standards of respect and honest. That could lead to a
lot of bureaucracy. If not additional staff, it will certainly
require staff time and pay that goes to people already working for
the Department of Education and Early Development. Ms. Rudinger
concluded by saying students understand that adults making these
rules have good intentions, and students want safe schools.
Despite the tragedies of the previous year, however, incidents of
school violence have decreased significantly for the past five
years. She believes there is not the urgent need for marshal law
that seems to be imposed in well-intentioned by way-too-broad
legislation like HB 253.
Number 0456
CHAIRMAN KOTT thanked Ms. Rudinger. He noted the arrival a few
minutes earlier of Representative Dyson, who had been attending
another hearing. He invited Representative Dyson to comment.
Number 0465
REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor of HB
253, explained to Ms. Rudinger that the sole intention was to
protect teachers from being disciplined by school boards when the
teachers effect and enforce the pre-agreed-upon standards and use
the pre-agreed-upon procedures. Everything else was just an effort
to get communities to go through a process of their own choosing,
to come up with whatever behavior and safety standards they want,
"not to impose any state version of those." He asked Ms. Rudinger
how he could accomplish that goal in a way that is less
objectionable to her.
MS. RUDINGER recalled that a provision in the bill talks about
immunity from civil liability. She said teachers are already
immune from civil liability for damages from implementing a policy
that the school tells the teacher to implement. And certainly
courts have upheld teachers' rights to maintain order in the
classroom. However, as noted in their position paper, the AkCLU
fears that HB 253 goes too far in immunizing teachers, and that it
arguably would allow teachers to be physically violent against
students when it perhaps wasn't warranted. If school boards or
school districts aren't backing up teachers because they feel the
teacher went too far, she believes the school board or school
district should have that discretion to say so.
Number 0572
REPRESENTATIVE DYSON asked how to protect a teacher who does the
right thing, though, and enforces a standard that the community
agrees upon, but who is fired by the superintendent or school board
because one of its members is the parent of the student involved.
MS. RUDINGER answered that she isn't an expert on employment law.
However, she believes that any employee who is wrongfully
discharged despite the fact that the person wasn't violating any
policies of the employer - the school district in this case - would
have a cause of action against the employer for wrongful discharge.
These cases are fact-driven, and the outcome would depend on what
had happened. Referring to Representative Dyson's example of a
politically connected student, she said she hasn't heard complaints
from teachers that they aren't being supported or given enough
discretion in the classroom; therefore, she can't speak to that.
MS. RUDINGER mentioned the importance of two things: 1) giving
teachers the ability to maintain order and 2) providing due process
to students. Referring to her earlier discussion of the football
team incident, she said the 20-some parents who crammed into her
office were upset because their children weren't given a chance to
appeal or to even call their parents until they had written a
statement of "confession" to the principal's liking. Many parents
are upset that schools are overreacting. Ms. Rudinger contended
that bills like HB 253 divert attention from - and reinforce - the
underlying root causes of alienation and intolerance, by focusing
on "surface issues" like respect, honesty, dress codes and what a
person looks like and sounds like, and by saying that anyone
different from the norm is to be sanctioned and further outcast.
There is a need to include students in the educational process and
to work on the underlying root causes, which are alienation and
problems having to do with class, poverty or just a lack of feeling
included in the school.
CHAIRMAN KOTT thanked Ms. Rudinger and called upon Paula Harrison.
Number 0790
PAULA HARRISON testified via teleconference from the
Matanuska-Susitna Legislative Information Office (LIO), speaking on
behalf of the Matanuska-Susitna Borough School District. Noting
that the superintendent was unable to testify that day, Ms.
Harrison expressed concerns about HB 253, some relating to the due
process rights of students just discussed by Ms. Rudinger.
Referring to Representative Dyson's comments about protecting
teachers from discipline, Ms. Harrison indicated she isn't aware of
that being a big issue in the state. She expressed curiosity about
the incidents generating the sponsor's concern.
MS. HARRISON advised members that the bigger concern with her own
school district involves how HB 253 correlates with special
education students and the IDEA [Individuals with Disabilities
Education Act] laws. Furthermore, removing a student from a
classroom is typically something for which her district's
principals have responsibility. One concern is that authority of
the principal may be delegated, through this legislation, to
teachers, teacher assistants or other persons who may be
responsible for students; she asked whether "other persons"
includes volunteers or parents in the schools, and she expressed
concern about how far that goes.
MS. HARRISON said although a reasonable degree of authority is
necessary, and although the district supports teachers in
maintaining order in their classrooms, extending the full
responsibility of discipline to individuals other than the
principal may have ramifications for not only her district but also
districts statewide. She told members, "Our principals, as well as
our student support services, the special education director, are
those who give guidance in these specific areas. We believe that
every school district should be responsible enough to adopt policy
and regulations that ensure that we do have safe schools." Ms.
Harrison acknowledged that events at Columbine High School in
Colorado have created a new awareness nationwide. However, her
district believes it is the responsibility of good school boards,
superintendents and administrations to ensure that teachers are not
harmed for maintaining order in their classrooms.
CHAIRMAN KOTT thanked Ms. Harrison and asked whether anyone else
wished to testify via teleconference. He then called upon Ms.
Watts in Juneau.
Number 0977
PAMELA WATTS, Executive Director, Advisory Board on Alcoholism and
Drug Abuse (ABADA), Department of Health and Social Services, came
forward, extending the board's appreciation to Representative Dyson
for addressing this important issue. Although supporting his
commitment to increasing safety in Alaska's schools and supporting
teachers who keep classrooms and schools safe, the board believes
omission of a provision for screening students who may have
substance abuse problems weakens school disciplinary plans. Ms.
Watts referred to a letter sent to the committee by the ABADA that
reviews links between students with substance abuse problems and
school violence, vandalism, truancy and other issues; she cited
some statistics from that. She emphasized that a provision for
taking into account the role of substance abuse - as well as mental
illness or developmental disability - is a critical one. On behalf
of the board, therefore, she requested that CSHB 253(HES) be
revised to include some provision for screening students who might
have substance abuse disorders.
Number 1115
REPRESENTATIVE GREEN asked what sort of screening Ms. Watts
suggests. For example, would a teacher not have authority to
discipline, or would there be other measures?
MS. WATTS replied:
Not at all. What we had in mind was more that if a
student was found to be in violation of school
disciplinary policy - and that whatever mechanism that
particular school or district had ... for reviewing the
violations and coming up with some consequences to those
violations - that if there was any indication at all that
there were reports from teachers or staff - or any
initial screening, minimal screening tool, even - that
the student might have a problem with alcohol or other
drugs, that that be taken into consideration, so that,
hopefully, some early intervention might prevent
subsequent violations of school policy for that student,
and maybe get them the type of assistance that they might
need to remediate the problem. And this would vary from
district to district because, of course, resources ...
are different in districts statewide.
Number 1178
REPRESENTATIVE GREEN requested clarification about the process.
For example, would this plan require the teacher having information
beforehand or would it be implemented out of the classroom after a
problem occurred?
MS. WATTS explained that the teacher wouldn't necessarily have to
know this, and the student would still be accountable for his or
her behavior. However, the board feels that when alcohol or other
drugs are a factor in acting out behaviors, that should be
considered in the larger picture of recommendations made for that
student. It is likely that the student would still be held
accountable. But in order to intervene and hopefully remediate
with that type of behavior in the future, the student would be
identified as having a substance abuse problem, and would receive
help to the extent that resources were available.
Number 1278
REPRESENTATIVE DYSON briefly discussed a comprehensive school
safety bill that he considered ideal, presented the previous year
by Representative Brice; it included diagnoses, early intervention
and parallel programs for students. Unfortunately, it had failed
because of a large fiscal note. Therefore, this present bill aims
at one small target: protecting the teachers who did the right
thing. Representative Dyson said he assumes every school board and
district would identify and take into account the kids with
disabilities and substance abuse problems; many of those students
would have Individual Education Plans (IEPs), for example, and
teachers would take into account each student's particular
challenges.
REPRESENTATIVE DYSON indicated he'd grown up in a home with
alcoholism and is sympathetic to these problems. He mentioned that
he'd sponsored HCR 11, which had made it to the Senate floor; that
legislation makes alcohol and substance abuse treatment the highest
priority of all treatments offered by the state. Next he referred
to Walter Majoros, Executive Director, Alaska Mental Health Board,
confirming with Ms. Watts that she had seen language that he and
Mr. Majoros had worked on. [Apparently proposed amendment
1-LS0599\K.2, Ford, 2/7/00, not offered, which read:
Page 2, line 26, following "AS 11.81.430(a)(2)":
Insert ";
(7) procedures and actions necessary to comply
with 20 U.S.C. 1400-1485 (Individuals with Disabilities
Education Act)"]
REPRESENTATIVE DYSON asked Ms. Watts whether that amendment starts
to satisfy her.
MS. WATTS said she'd had a brief look but should take an additional
look and carry that through to the board, to see what their
position might be on that.
REPRESENTATIVE DYSON responded:
We're assuming that they are responsible enough and
professional enough that they're going to ... do this
consistent with what ... is required under IDEA law, and
so on, and will be ... quite sensitive. And they're
sensitive not only because they care about kids, but
there's some funding that comes with it, you know. So I
think those issues have their attention.
REPRESENTATIVE DYSON expressed appreciation for Ms. Watts' advocacy
for these children.
Number 1492
CARL ROSE, Executive Director, Association of Alaska School Boards
(AASB), came forward to clarify his organization's position on this
bill, noting that he had testified in the previous committee. He
hadn't opposed the bill, he said, because he agrees with the intent
and wants to address two areas: 1) the "criminalization" of school
board members who provide a volunteer service to their communities
and 2) interpretation. Also agreeing with the intent of
implementing community-based strategies, protecting teachers and
facilitating the creation of standards, Mr. Rose commented, "We've
done this as an association for school boards." He said the
question is how to go about this. He pointed out that Anchorage
has 86 schools, and the bill is designed so that each school would
prepare policies and procedures.
MR. ROSE explained that in terms of governance of school districts,
as understood by the AASB, a policy is a broad statement of what
one wants to have done, whereas a procedure is the process by which
those policies are carried out. He likened it to legislation and
the administrative regulations that get adopted. There are two
issues: what to do, and how to do it. A school district policy
determines how discipline and safety issues will be dealt with;
however, the bill asks for that discussion to take place at each
school level. The problem is that AASB's membership would be
responsible for decisions made across the state at each school
board level.
MR. ROSE pointed out that the school board is the group that can
and will be sued. He believes teachers are already indemnified:
when one sues a teacher in a school district who is carrying out
the duties of the job, one is actually suing the school district;
the weight of the school district is behind that teacher. Mr. Rose
asked, "If you authorize someone to act, but there's no method of
appeal, where's the responsibility for that action?" For example,
he said, a school could decide the policy, and a teacher could act
in what he or she believes to be good faith; that interpretation
may be very different from the school board's. If the teacher's
interpretation were challenged by the school board, there could be
an area of dispute.
MR. ROSE voiced the belief that a process and safeguards are in
place now. When there is an infraction, there are numerous
processes of appeal, from the local level up to the school district
office. A school board is the quasi-judicial body of the district;
if there is an appeal before that body, they can't review the
record on that but must sit as an unbiased, objective body to
render that decision.
Number 1799
MR. ROSE brought attention to page 1, lines 12 through 14, of CSHB
253(HES), which read: "(1) implement and maintain community-based
standards of school behavior that are understood, accepted, and
upheld by students, parents, teachers, school administrators, and
the community". He suggested those would become points of
contention if there were a challenge. He asked the committee to
hold this bill over to try to iron these issues out. Noting that
each school has a student handbook, he said the community-based
activity called for in the bill is being addressed in part. He
offered to work to improve that, but emphasized that having the
whole group of people liable for a class A misdemeanor - on issues
over which they may have no control - is fraught with problems.
Number 1897
CHAIRMAN KOTT asked whether there are any pre-qualifications for
school board members, such as not having been convicted of a
misdemeanor in the last 12 months.
MR. ROSE answered that a person must be 18 years of age and have 30
days' residency in a community. In terms of convictions, however,
he would have to check the statutes. He said the two areas of
access to a school board member in question are the election
process and the ability to be recalled. In that way, the public
does have access to those elected officials. He then suggested a
person would have to be a citizen of the state for 30 days.
Number 2001
REPRESENTATIVE KERTTULA also expressed concern about the
misdemeanor section of the bill. She said she tends to agree that
the bill needs some work to flesh this out. She asked what happens
if a teacher is fired now, even though the teacher was correctly
implementing a procedure. If the school board recommended firing
the teacher, for example, it could have been acting in good faith
but somehow have made the wrong decision. She asked whether a
teacher can file a wrongful termination case but cannot file an
individual tort case against school board members.
MR. ROSE replied that there are two ways: dismissal or
termination, both for cause. In place now is the opportunity for
a teacher to choose a full, formal hearing before the board or
arbitration. In either case, the school district will make its
case one time. Mr. Rose explained:
This is the issue of de novo that we moved away from some
years ago. I believe that a portion of this bill may
bring an awful lot of legal costs to bear on a school
district .... We'd receive dollars for education, but a
large portion of that money would be spent on litigation
and defending the school district. There are a lot of
people who would be identified here.
In answer to your question, the process right now is a
teacher has a choice. ... If they want to appeal, they
can go through a formal process before the board, for a
full hearing, the record of which will be reviewed by
superior court, or ... have their hearing heard before an
arbitrator, the results of which would be binding, if
they do this arbitration.
REPRESENTATIVE KERTTULA stated her understanding that individual
school board members can't be sued in tort for individual
liability, if they are acting in good faith.
MR. ROSE said he believes school board members are indemnified by
the school district, unless the school board member has done
something specifically that wasn't covered under the board members'
responsibilities.
REPRESENTATIVE KERTTULA asked whether, then, school board members
can be sued and have a judgment issued against them, but the school
would be indemnifying them and paying for it.
MR. ROSE nodded in affirmation, adding, "In the carrying out of
their duties."
Number 2227
REPRESENTATIVE DYSON asked whether Mr. Rose was saying he doesn't
like the idea of the parents and community in each school having
input on the behavior and safety standards.
MR. ROSE responded:
Mr. Chairman, if I could clarify: We are about community
involvement, and I think that's the basis of where these
discussions should take place. As a matter of fact,
we're involved heavily ... in community engagement. The
issue of setting policy at the school level is an area
that causes me great concern. The implementation of the
policy - the regulation of how they're going to be put in
place - I think is ... within the realm of the community.
But the policy that would be put in place, that the
district will stand behind, should be with the elected
officials, the elected body.
REPRESENTATIVE DYSON replied:
That was certainly our intention. We want the school
district and/or the schools to get input from the
community: what do you want the standards ... to be?
And the policy will be approved by - the final thing,
approved by - the school board for it. If they choose,
in a widely divergent school district that covers several
hundred square miles, to have slightly different behavior
standards in a small rural school than a large urban one,
we wanted to allow them the flexibility, but it still has
to be approved by the school board who sets the policy.
But I understood you to say it's too clumsy to get all
the people ... in the community out there to have input.
And you didn't mean to imply that.
MR. ROSE confirmed that he didn't mean to imply that.
REPRESENTATIVE DYSON stated the desire to have Mr. Rose help make
this clearer. He indicated the intent to have everybody who wants
to in a community have input; the policy would come back to the
school board, which is exactly where he is hearing Mr. Rose say he
wants it. Next, he brought attention to page 3, line 13, saying
the only thing this bill would require an appeal on is if the
governing body, the school board, knowingly - he emphasized
"knowingly" - allows a teacher or others here to be terminated or
punished in violation of this section.
TAPE 00-10, SIDE A
Number 0001
REPRESENTATIVE DYSON mentioned one district where 85 students told
a principal they weren't going to school, cussed at the principal,
and then spent three weeks roaming the halls and terrorizing
people; the school board let it go on. He said that ought not to
be; the school board didn't do its job. He asked, in that case,
what appeal process Mr. Rose wants before the Alaska State Troopers
put those people in jail. He acknowledged he may be preaching.
Number 0064
MR. ROSE noted that most districts have a policy process, with a
first and second reading, then a third reading for final passage.
He pointed out page 2 of the bill, lines 8 through 12, which read:
(a) Each school shall adopt a written school disciplinary
and safety program that is developed with the
collaboration of members of the community, parents,
teachers, and other persons responsible for the students
at that school. A disciplinary and safety program
adopted by a school must include the following:
MR. ROSE said that is to be approved by the school board. He
referred to testimony in the previous committee. He said the
board, the governing body of a school district, should describe in
policy what it is that they believe should happen. How that
happens, however, is a discussion that can take place at the school
level. He reminded members that school districts cannot set policy
in excess of the law and regulations; in the absence of law,
regulations have the weight of law.
MR. ROSE said all he is asking is that individual schools operate
within the parameters described by the board. He believes the
policy should be clear, and the process for carrying it out should
be at the local level. But to ask the public what they want -
which may be inconsistent with district policy, state regulations
or state law - could be inviting people to come back and be
rejected at the local level. He noted that the policy determined
at the district level is open to public review and public access,
through a public process.
Number 0250
REPRESENTATIVE DYSON referred to CSHB 253(HES), page 2, lines 29
and 30, which read: "A school disciplinary and safety program
adopted by a school is not effective until approved by the
governing body of the school district." He suggested that a
governing body that didn't like the program could ask that it be
modified. He requested confirmation that Mr. Rose wasn't
suggesting that the school behavior standards shouldn't be in the
hands of the common people but should be in the hands of
professionals.
MR. ROSE confirmed that he hadn't said that. He reiterated that
school districts operate within the confines of state law and
regulations, which they can't exceed. This bill has the potential
of allowing local schools to maybe exceed that in their desire,
only to be turned back when they come back to the board; that would
be very cumbersome. He specified that he doesn't want to stop the
public from having access, but he doesn't want to raise the
expectation, create a problem, and have to be the one to tell them
"no."
Number 0340
REPRESENTATIVE DYSON asked Mr. Rose whether adding "district" after
"school" on line 8, page 2, would satisfy him.
MR. ROSE said that would be very helpful, as what they are talking
about is the school district being able to set the parameters.
REPRESENTATIVE DYSON responded:
I think what we lose is mandating that the schools - each
one of them - be out there and get involved with their
PTA and find out what the parents want. If that gets the
knot out of your knickers, I'd be glad to do it, ...
rather than foul this up. But I think we'll lose more
than we gain.
Number 0391
MR. ROSE remarked that at no time do school boards knowingly go out
and tread on teachers. If that has happened in the past, it has
been isolated instances. Personally, he takes great offense
because that isn't how he lives his life, and those aren't the
people whom he represents. Restating that these things may have
happened in isolation, he asked whether they haven't happened in
every public institution. He offered his efforts to fix that.
MR. ROSE pointed out that in any school district, when there is a
violation, there are three things to do: investigate, validate and
take appropriate action. He hadn't had the opportunity to
investigate or validate what happened for instances discussed here.
However, he is aware of instances where the system has righted
itself. School board members have been recalled. Superintendents
have been relieved of their duties. And teachers have been fired
and gone to court, with alarming costs to uphold that. Noting that
the system is ongoing, Mr. Rose concluded, "If the intent of the
bill ... and the purposes of the bill are what we want to do, I'm
willing to reshape and work with you to try to accomplish that.
But I do think criminalizing the volunteer members is ... a bit
large for me."
Number 0538
CHAIRMAN KOTT said the committee would certainly appreciate any
assistance in getting to the final objective of the sponsor.
[Although the comment regarding Representative Rokeberg indicated
his presence, he was in fact chairing another meeting.]
Number 0562
REPRESENTATIVE GREEN expressed his understanding that, under the
bill, whatever the schools themselves came up with as appropriate
action would have to fit under an umbrella of the school district,
and be approved by it. He asked why the existing policy booklet
sent out to students and parents is acceptable, with its potential
for misunderstanding, and yet a new one wouldn't be.
MR. ROSE referred to the potential addition of "district" [on page
2, line 8]. He stated the belief that if each school district
shall adopt a written disciplinary and safety policy, it is
consistent with what happens now. However, if it reads "Each
school," then 86 schools in Anchorage, for example, would determine
the policy. He said schools should have input, approved through a
district policy for all the schools. How to administer those
policies through a set of regulations is, he believes, an issue
that could be talked about a number of different ways. Mr. Rose
concluded:
But I think what we want is something that is consistent
across the district. To be in a position of having to
defend 86 different determinations would be very, very
difficult for us. But I think what Representative Dyson
has said, "Each school district", that means you have an
overall template .... If we have a template of what the
policy is going to be, then that provides continuity
across the district. Now, district to district, that may
change.
Number 0718
REPRESENTATIVE GREEN said to him that kind of guts the bill. There
are reasons why schools would want different rules, and any
differences in school policies in a district would have to be
approved by the district. He questioned the need for the bill if
"district" is added there.
Number 0780
MR. ROSE restated that school districts don't have the authority to
exceed the law or regulation. He indicated his organization is
asking that each school district maintain that same standard; all
their policies reflect their authority under statutes and
regulations, and they are asking for continuity throughout a
district. However, regarding how individual schools and their
committees deal with specific issues relative to the school, those
things happen now and there is latitude for that within the law.
Mr. Rose added, "I don't think that you're suggesting that each
school may have the opportunity to exceed the law."
REPRESENTATIVE GREEN affirmed that.
MR. ROSE reiterated that he is asking that the policy be the
template for each individual school. Within schools, they do have
authority, through their local councils, to do things differently.
Number 0856
REPRESENTATIVE CROFT suggested that adding "district" to page 2,
line 8, isn't a complete resolution of the important choice being
discussed. He cited examples: lines 11 and 12, which read in
part, "A disciplinary and safety program adopted by a school", and
lines 29 and 30, which read in part, "A school disciplinary and
safety program adopted by a school". He pointed out the need to
decide whether it is the school or the district. He doesn't
believe that just adding "district" [to line 8] makes it clear
which choice has been made. He suggested that the committee and
the sponsor need to make that call.
Number 0920
REPRESENTATIVE CROFT next brought up a subject raised to him as a
concern. He said he doesn't know what goes on in most school
districts, and doesn't have enough information to have an informed
opinion about it. However, some people say that part of the
problem in rural Alaska is largely white teachers disciplining
largely Native students and not, then, getting supported by largely
Native school boards. He acknowledged that it raises difficult
urban-rural issues, racial issues, and questions of where the
ultimate authority should lie. He asked whether that is a problem
in rural Alaska - that teachers aren't given needed support - and,
if so, whether this is an appropriate way to meet that.
Number 1002
MR. ROSE responded:
I think you bring up a very important point. As you
know, we've been struggling with some state policy issues
here of late: the issue of "Indian country," the issue
of subsistence, a lawsuit over equity in how we build our
schools, a lawsuit over village safety. More and more,
we're finding that there is a large ... difference in the
views of rural Alaska, in terms of where we're going as
a state.
I think that that would have an impact, in terms of ...
a people looking at what they value, their culture, their
tradition, and looking at a system that would impose,
maybe, some other values, a Western education. And a lot
of this could be an extension of what they see as a
state. You raise a very valid issue, because I believe
in much of my membership there is some hesitation. What
is the message when we have a state that doesn't
recognize the issues of running water and sewer ... that
would serve citizens of the state? ...
This is far bigger issue than I mean to speak about here,
but I would say yes, in answer to your question. In
rural Alaska, there are some differences because ... the
prism that they view the state through is very, very
different. And this does not mean that they are any
less. It simply means that, from their point of view,
they look at how the state administers its state policies
and see ... a great difference there. I think that's why
we're going to the courts as much as we are. But with
regard to a bill such as this, when we talk about rural
Alaska, things are very, very different there. ...
It does not relieve them from their responsibility of
doing the right thing. And so, if they are terminations
that are unjust, they need to be addressed. They need to
come forward. I would never stand in the way and say
that that is appropriate, because it's not appropriate.
But there are a lot of people out there who feel they
aren't treated fairly, and if they don't have a right to
appeal, ... they feel very badly that they don't ever get
their day in court, if you will. And I'm not talking
formal court. ... I'm saying to you that many people that
I deal with - and it's not just school board members,
when I go out into communities - they look at what they
have available to them, they look at what's available to
others, and I know the issue of who pays and all that
comes into play. But the actual quality of life is
extremely different. And I think we need to account for
that.
Number 1177
REPRESENTATIVE DYSON agreed this is an excellent question. He said
his primary motivation for mandating community involvement is for
the very reason just discussed. If the teacher has, in hand, what
the community wants, then at least the teacher knows. He also
agreed with Mr. Rose about not having the school board be in the
uncomfortable position of having to tell an individual school
community that what they want is illegal, for example. He briefly
discussed an Anchorage school where "gang colors" weren't allowed;
although a legitimate concern there, he said, it may be meaningless
in smaller communities. He mentioned other examples such as locker
searches, suggesting those aren't the kinds of things that Mr. Rose
believes the district must sweep together and have all be standard.
MR. ROSE answered that he just thinks the district needs the
opportunity to be consistent with law across the district, because
those elected officials are the ones who can and will be sued.
REPRESENTATIVE DYSON returned to Representative Croft's point
regarding page 2, lines 29 and 30, which read: "A school
disciplinary and safety program adopted by a school is not
effective until approved by the governing body of the school
district." Representative Dyson proposed just saying that the
school district, while allowing individual schools to have some
variation of the behavior standards, will make sure that the
policies are within law, and so forth. He expressed appreciation
for Mr. Rose's testimony.
Number 1356
CHAIRMAN KOTT thanked Mr. Rose as well. He apologized to Mr.
Majoros and Mr. Cyr for not getting to their testimony that day.
[HB 253 was held over.]
ADJOURNMENT
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 3:30 p.m.
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