Legislature(1999 - 2000)
03/20/2000 01:20 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
March 20, 2000
1:20 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Lisa Murkowski
COMMITTEE CALENDAR
HOUSE BILL NO. 253
"An Act establishing a school disciplinary and safety program; and
providing for an effective date."
- MOVED CSHB 253(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 233
"An Act granting authority to each municipality to be a debtor
under 11 U.S.C. (Federal Bankruptcy Act) and to take any
appropriate action authorized by federal law relating to bankruptcy
of a municipality."
- MOVED CSHB 233(CRA) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 35
Relating to requesting the United States Congress to repeal the
"Brady Handgun Protection Act".
- MOVED HJR 35 OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 53
Proposing amendments to the Constitution of the State of Alaska
relating to a preference for taking wildlife for human consumption.
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 47
Proposing amendments to the Constitution of the State of Alaska
relating to the permanent fund and to payments to certain state
residents from the permanent fund.
- MOVED HJR 47 OUT OF COMMITTEE
PREVIOUS ACTION
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)
2/02/00 (H) MINUTE(JUD)
2/07/00 (H) JUD AT 1:00 PM CAPITOL 120
2/07/00 (H) Heard & Held
2/07/00 (H) MINUTE(JUD)
3/17/00 (H) JUD AT 1:30 PM CAPITOL 120
3/17/00 (H) Scheduled But Not Heard
3/20/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 233
SHORT TITLE: MUNICIPAL BANKRUPTCY
Jrn-Date Jrn-Page Action
5/12/99 1340 (H) READ THE FIRST TIME - REFERRAL(S)
5/12/99 1340 (H) CRA, JUD
2/01/00 (H) CRA AT 8:00 AM CAPITOL 124
2/01/00 (H) Heard & Held
2/01/00 (H) MINUTE(CRA)
2/03/00 (H) CRA AT 8:00 AM CAPITOL 124
2/03/00 (H) Moved CSHB 233(CRA) Out of Committee
2/03/00 (H) MINUTE(CRA)
2/04/00 2086 (H) CRA RPT CS(CRA) NT 5DP 1NR
2/04/00 2087 (H) DP: MURKOWSKI, HALCRO, JOULE,
2/04/00 2087 (H) HARRIS, KOOKESH; NR: DYSON
2/04/00 2087 (H) ZERO FISCAL NOTE (H.CRA)
2/18/00 (H) JUD AT 1:00 PM CAPITOL 120
2/18/00 (H) Heard & Held
2/18/00 (H) MINUTE(JUD)
3/20/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 35
SHORT TITLE: REPEAL BRADY ACT
Jrn-Date Jrn-Page Action
3/31/99 624 (H) READ THE FIRST TIME - REFERRAL(S)
3/31/99 624 (H) WTR, JUD
5/18/99 1638 (H) COSPONSOR(S): KOHRING
1/26/00 2018 (H) COSPONSOR(S): SANDERS
2/15/00 (H) WTR AT 5:00 PM CAPITOL 124
2/15/00 (H) -- Meeting Postponed to 2/22/00 --
2/22/00 (H) WTR AT 5:00 PM CAPITOL 124
2/22/00 (H) Moved Out of Committee
2/22/00 (H) MINUTE(WTR)
2/23/00 2275 (H) WTR RPT 4DP 2NR
2/23/00 2276 (H) DP: MASEK, GREEN, BARNES, COWDERY;
2/23/00 2276 (H) NR: PHILLIPS, JOULE
2/23/00 2276 (H) ZERO FISCAL NOTE (H.WTR)
2/23/00 2288 (H) COSPONSOR(S): MASEK
3/06/00 (H) JUD AT 2:15 PM CAPITOL 120
3/06/00 (H) Heard & Held
3/06/00 (H) MINUTE(JUD)
3/20/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 53
SHORT TITLE: CONST AM: WILD FOOD RESOURCES
Jrn-Date Jrn-Page Action
2/07/00 2114 (H) READ THE FIRST TIME - REFERRALS
2/07/00 2115 (H) RES, JUD, FIN
2/09/00 2155 (H) COSPONSOR(S): DYSON
2/21/00 2259 (H) COSPONSOR(S): HARRIS
2/28/00 (H) RES AT 1:00 PM CAPITOL 124
2/28/00 (H) Moved CSHJR 53(RES) Out of Committee
2/28/00 (H) MINUTE(RES)
3/01/00 2352 (H) RES RPT CS(RES) NT 5DP 2NR 2AM
3/01/00 2352 (H) DP: COWDERY, BARNES, MORGAN,
WHITAKER,
3/01/00 2352 (H) MASEK; NR: JOULE, KAPSNER; AM:
HARRIS,
3/01/00 2352 (H) HUDSON
3/01/00 2352 (H) FISCAL NOTE (GOV)
3/01/00 2352 (H) REFERRED TO JUDICIARY
3/20/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 47
SHORT TITLE: CONST AM: PERMANENT FUND
Jrn-Date Jrn-Page Action
1/24/00 1986 (H) READ THE FIRST TIME - REFERRALS
1/24/00 1986 (H) JUD, FIN
3/01/00 (H) JUD AT 1:00 PM CAPITOL 120
3/01/00 (H) Heard & Held
3/01/00 (H) MINUTE(JUD)
3/20/00 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
WES KELLER, Staff
to Representative Dyson
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Provided information on HB 253.
JOHN CYR, President
National Education Association - Alaska
114 Second Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 253.
CARL ROSE, Executive Director
Association of Alaska School Boards
318 West Eleventh Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 253.
JONATHON LACK, Staff
to Representative Halcro
Alaska State Legislature
Capitol Building, Room 418
Juneau, Alaska 99801
POSITION STATEMENT: Presented information on HB 233.
RYNNIEVA MOSS, Staff
to Representative Coghill
Alaska State Legislature
Capitol Building, Room 416
Juneau, Alaska 99801
POSITION STATEMENT: Presented information on HJR 35.
EDDIE GRASSER, Staff
to Representative Masek
Alaska State Legislature
Capitol Building, Room 128
Juneau, Alaska 99801
POSITION STATEMENT: Presented HJR 53, Version I, and answered
questions.
REPRESENTATIVE GARY DAVIS
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HJR 47.
SENATOR JERRY MACKIE
Alaska State Legislature
Capitol Building, Room 427
Juneau, Alaska 99801
POSITION STATEMENT: As sponsor of SJR 33, companion resolution,
testified on HJR 47 and answered questions.
ACTION NARRATIVE
TAPE 00-33, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:20 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, Croft and Kerttula.
Representative James arrived as the meeting was in progress.
HB 253 - SCHOOL DISCIPLINARY AND SAFETY PROGRAM
Number 0046
CHAIRMAN KOTT announced that the first order of business would be
HOUSE BILL NO. 253, "An Act establishing a school disciplinary and
safety program; and providing for an effective date." He clarified
that there was a new proposed committee substitute (CS), Version S,
before the committee.
Number 0057
REPRESENTATIVE ROKEBERG moved to adopt the proposed CS for HB 253,
version 1-LS0559\S, Ford, 3/17/00, as the working document before
the committee. There being no objection, it was so ordered and
Version S was before the committee.
REPRESENTATIVE FRED DYSON, Alaska State Legislature, testified as
sponsor of HB 253. He reviewed those portions of HB 253 that had
been revised. Representative Dyson said three changes had been
made, which he thinks make the bill better. The first change is on
page 2, line 8 and following, which now very clearly specifies that
each school is to go through the process of getting community input
on behavior and safety standards. However, he said, it is the
responsibility of the school board or the governing body to make
the policy, and the board/governing body has the option of "totally
homogenizing everything," or, in a big district, having some
variation among the schools.
REPRESENTATIVE DYSON said the second change is on page 2, lines 25-
29. On that revision, the sponsor and staff had worked with many
people from the disabilities community. Their concern was that the
bill not inadvertently facilitate discrimination against children
with disabilities. The third change, on page 3, line 22, addresses
concern about how teachers conduct themselves. All it says is that
they are going to do it consistent with existing standards of the
Professional Teaching Practices Commission (PTPC).
Number 0348
CHAIRMAN KOTT noted that on page 3, line 20, the penalty having to
do with violations has been lessened.
REPRESENTATIVE DYSON confirmed that the penalty had been reduced
from a misdemeanor to a violation.
Number 0364
REPRESENTATIVE ROKEBERG asked if the new version of CSHB 253 had
been reviewed by the Anchorage School District and the Alaska
Association of School Administrators, and, if so, whether those
groups had changed their opinion of the bill.
REPRESENTATIVE DYSON said the new version of HB 253 [Version S] has
been provided to both groups but neither has responded to it.
Those making the revisions have been working with those two groups
and have addressed their concerns, he said, "but in 30-some years,
I have never had the Anchorage School District agree with me about
anything."
Number 0428
REPRESENTATIVE CROFT raised the issue of reducing from a class A
misdemeanor [the penalty for] the kind of conduct HB 253 was
defining for the school board. He said he thought the committee
had been moving in the direction of narrowing the scope of the
crime and keeping it a misdemeanor. Now, he said, it appears they
have reduced the penalty but kept the scope of the crime the same.
REPRESENTATIVE DYSON concurred with that observation.
REPRESENTATIVE CROFT wondered why that was a better solution than
the previous one.
Number 0484
WES KELLER, Staff to Representative Dyson, Alaska State
Legislature, said that the revision was the result of a compromise
with the House Judiciary Committee.
Number 0507
REPRESENTATIVE CROFT said he wanted to understand what goes on in
a disciplinary hearing, especially relating to what was a
misdemeanor and is now a violation. Page 3, subsection (c), says
it is a violation if "the member of the governing body of a school
district knowingly allows a teacher or others to be terminated or
punished." If the school board member allows a teacher to be
punished in violation of subsection (a), which says a teacher may
not be punished for enforcing the standard, his question is: On
legitimate disagreements, how is that dealt with under "knowingly"?
He continued:
If I'm a school board member and I think they have
exceeded the disciplinary plan, the teacher obviously
thinks they were enforcing the disciplinary plan; I vote
to sanction them in some way, and later a court
determines that the conduct of the teacher was
appropriate. Did I commit a violation or did I have to
know at the time that they were enforcing the plan, and
know I was punishing them for that?
Number 0610
REPRESENTATIVE DYSON explained:
What we're after is knowingly using your position as a
school board member or administration member to punish
somebody who was doing the right thing. You knew that
they were doing the right thing, you didn't like it, and
you used your position to punish a teacher who was acting
in conformance with the district standards and good
professional conduct; you want to "jerk his chain"
because you didn't like what he did. You have to know he
was doing the right thing, and you have to knowingly go
after punishing him for doing the right thing.
REPRESENTATIVE CROFT said he thinks it is important to have that on
the record. It is difficult to write, so he appreciates the
clarification.
CHAIRMAN KOTT said that is his understanding as well of where this
is heading.
Number 0677
REPRESENTATIVE ROKEBERG asked whether the previous draft of HB 253
had said "felony."
REPRESENTATIVE CROFT and CHAIRMAN KOTT clarified that it had
referred to a class A misdemeanor.
Number 0701
REPRESENTATIVE ROKEBERG said a class A misdemeanor is a typical
occupational licensing penalty, which gives more grit and
enforceability [than does a violation]. It seems like nowadays,
the pocketbook is more important than some little slap on the hand.
He asked, "Did you consider some type of treble damage civil action
as opposed to this?"
Number 0730
REPRESENTATIVE DYSON said that was how he originally thought it
should be done, "to hit them in the pocketbook." But he had not
been successful in convincing legislative counsel of that; that was
who had said it ought to be a misdemeanor, consistent with other
licensing type, professional-conduct type violations. "And if
there is a better way, I'm into it," Representative Dyson added.
Number 0789
REPRESENTATIVE ROKEBERG said he would defer to the legal experts.
He added that "it seems like the civil remedy is much broader and
fuzzier, and the criminal remedy is going to be clearer."
Number 0805
REPRESENTATIVE DYSON pointed out that if legal action were brought
against a school administrator, the board probably would pay the
money out of district funds, so it might be less daunting than the
idea of spending time in jail, judging by the reaction of his own
school board.
Number 0875
CHAIRMAN KOTT emphasized that he did not want to go too far and
make HB 253 an "attorney employment Act." If one were to go beyond
the scope of a violation, there would be substantial opportunity
for litigation to occur, not only on behalf of the affected or
harmed teacher but on behalf of the district as well. "In a time
of limited resources, if we can avoid that, we should probably make
that attempt," he added. He noted that a violation carries with it
a maximum fine of $300.
Number 0930
REPRESENTATIVE ROKEBERG responded that a violation seems like a
slap on the hand, a speeding ticket. But this [violation] would
not preclude the teacher from bringing a civil action.
Number 0984
REPRESENTATIVE DYSON replied:
Even as demonstrably insensitive as I am, I can hang
around a school for a couple of days and tell you whether
the administration is backing up the teachers and whether
the teachers feel confident they will be backed up when
they enforce reasonable behavior and safety standards.
That is always management's job: to back up the
employees. Treat them like professionals, train them
well, and have them doing the right things in the right
way, and then back them up. When you don't, you have
morale problems, and it gets difficult in the classroom.
If the teachers know that when the right angry parent
comes in, the administration is going to fold up like a
tent in a windstorm and steal away, then the teachers are
really going to struggle. We're trying to protect the
teachers who do the right thing and follow the previously
agreed-upon standards and do it in the right way, and I
think it's worth doing.
Number 1081
REPRESENTATIVE KERTTULA said she appreciated the sponsor's work on
the bill. Then she said she assumed it would not apply to a
teacher who enforced the discipline standards improperly, in a way
inconsistent with PTPC policy.
Number 1106
REPRESENTATIVE DYSON said that was correct.
CHAIRMAN KOTT asked if there were other questions for the bill's
sponsor or his staff. There were none. He noted that
Representative James had joined the committee and Representative
Dyson was excused to testify at a concurrent committee meeting.
Number 1149
JOHN CYR, President, National Education Association - Alaska (NEA-
AK), thanked Representative Dyson for sponsoring HB 253. He noted
that it has been a long struggle. He applauded the work the
committee has done on page 2 in allaying the fears of those who
have children with special needs. However, he had questions about
some of the changes on page 3.
MR. CYR called attention to AS 14.33.130, subsection (c), where it
used to say "misdemeanor" and now says "violation." Then a new
subsection (d) has been added, he noted. What has been done, as he
understands it, is to reduce the level to which a school board
member can be charged, but on the other hand, to add a section in
which teachers who may inconsistently do something [related to]
discipline and safety can lose their license to teach, can lose
their livelihood forever through the PTPC. That appeared to him to
be inconsistent, "if we are building this to help teachers."
MR. CYR told members he would be the first to admit that the way
the system works now, everything that [teachers] do is governed by
the PTPC. He elaborated:
We have an ethical standard to uphold, and we do, and I
want that. Certainly, every teacher ought to follow
that. But does adding this language in subsection (d)
take away those safeguards that we have under contract
and in other places for fair evaluations? Can a school
board member or administrator come in and say, "Well, we
have this bill and I believe that you have not done this
consistently, and so I'm sending your name in to PTPC,"
and bypass those systems that we already have in place?
MR. CYR explained that he would like to see subsection (d) removed
because he believes that it already is in place "for everything we
do in the classroom." To put it in this bill at this time raises
some questions in his mind about how that balances. Other than
that concern, NEA-AK is very pleased.
Number 1324
CHAIRMAN KOTT said he, too, is concerned that the administrators
are now [under subsection (d)] being given an additional tool to
come down hard on the teachers for not enforcing, and that there is
not a little bit of discretion left to the teachers. On the other
hand, he asked, aren't they now enforcing the safety and
disciplinary programs that the schools are setting up? And if not,
wouldn't there be some other remedy that could be taken against
those teachers who for some reason decided not to enforce the
disciplinary standards?
Number 1360
MR. CYR replied, "Absolutely." Every teacher in every classroom
falls under the PTPC, he said. "But basically, if I'm not
enforcing classroom standards and I don't have discipline in my
classroom, there is an obligation there for the administrator to
come in to evaluate, to put me on a plan of improvement to make
sure that those things happen." Mr. Cyr referred to past
discussions about how the evaluation procedure works. He said it
works exactly the same way in relation to discipline. That system
is built in already, which is why he questions whether subsection
(d) is needed.
Number 1320
CHAIRMAN KOTT asked whether the tenure evaluation process includes
mechanisms that address how well a teacher ensures that there are
discipline and safety in the classroom.
MR. CYR said yes. In every school district, there is a whole
section on classroom discipline. That is one of the key pieces in
deciding whether or not one ought to be teaching. That is already
built into the system, he reiterated.
Number 1461
REPRESENTATIVE GREEN asked Mr. Cyr whether subsection (d) in effect
"unravels" the whole concept because there could be conflict
between how subsection (d) is interpreted and how a teacher may
act.
MR. CYR said he did not know. He stated:
If I have the assurance of the drafters that this is not
outside the current disciplinary program, that this works
exactly the way it is negotiated in every contract, the
rights and responsibilities that the law gives us now,
I'm comfortable. But if it more than that, then I do
have a problem.
Number 1515
CHAIRMAN KOTT said he shared that concern. If it [subsection (d)]
is actually being followed today, then why is it necessary to
include it in the bill? He said he would discuss that with the
bill's sponsor and staff.
Number 1534
REPRESENTATIVE GREEN asked if the word "consistent" was
problematic. He noted that there are no guidelines to define
"consistent."
Number 1542
MR. CYR explained that every district and state law allows school
districts to evaluate professional staff in a consistent manner,
and if they [staff] are found lacking, there are programs laid out
in state law that say one will do this, then this, then this. At
the end of that, whether one is tenured or not, one can be
dismissed for noncompliance. That is the law and that is the way
he believes it should be. If subsection (d) changes that in some
fashion, then he has a major problem with it. If it doesn't, then
he is happy with HB 253 [Version S].
Number 1590
MR. KELLER advised members that subsection (d) was included in
response to a concern that a teacher could inappropriately apply
the new program and then the superintendent or principal couldn't
discipline the teacher who was acting inappropriately. Subsection
(d) doesn't change anything. The intent is to keep everything tied
in with what already exists, with professional teaching practices,
rather than to add something new.
Number 1619
CHAIRMAN KOTT asked why, then, if the intent is to tie HB 253 into
the existing system, subsection (d) should be included, which would
clutter up the statute. He said that unless there is another
compelling reason to keep subsection (d), he would rather remove
it.
MR. KELLER replied that he is sure the sponsor would have no
problem with deleting subsection (d). He explained that subsection
(d) was included partly in response to the question that Chairman
Kott had brought up regarding the narrowing of the violation by a
superintendent or somebody who was trying to punish a teacher by
tying HB 253 in with the PTPC standards.
REPRESENTATIVE KERTTULA said she had two thoughts on the matter.
First, she would delete subsection (d) because she doesn't really
know what it means, and the lack of clarity may create confusion.
She thinks the school disciplinary and safety program should be
consistent with PTPC practices. She doesn't know how to make the
two jibe because one concerns student behavior and the other
concerns the teacher's. Second, she can envision a court having
problems interpreting what "enforcement" is. A police officer, for
instance, could be "enforcing" the law by conducting an illegal
search but just wouldn't be properly enforcing it. It may be that
that is where the language needs to [say] that it is proper
enforcement under the standards, or that the standards are used
when creating the list. In response to a question by Mr. Keller,
she specified that she was using Version S and pointing out that
there is nothing in subsection (a) on page 3 in terms of what
enforcement itself is.
Number 1735
REPRESENTATIVE CROFT observed, "If the best we can say about a
provision is that we hope it does nothing - and if it does
anything, we don't want it - it probably would be better to take it
out."
Number 1742
REPRESENTATIVE JAMES commented that she didn't see the problems
that others were reading into subsection (d). To her, it does say
how to enforce; it says "in a manner that is consistent with
professional teaching standards adopted by the PTPC." Also, she
thinks it is important to include subsection (d). She does not
want this to be a second set of rules applied in some other way.
She thinks subsection (d) ties HB 253 into the PTPC in a realistic
way.
Number 1788
MR. CYR addressed Representative James, saying that he and she
agree exactly on what this says. His point is that teachers
already are bound under the PTPC in everything they do in the
classroom. The enforcement of this school disciplinary safety
program is no different from any other program. Teachers must do
it in a consistent, professional manner that meets that [PTPC]
code, and he believe that is important. What he does not want to
have happen - because it is in this law and not in another section
of the statute - is to have those safeguards which are built into
that other section not apply to this. He elaborated:
We [the administrator and teacher] may have a difference
of opinion on whether I'm enforcing it consistently with
that, and I would like the ability to have a hearing and
bring that to the school board and have that decided. If
that's what this does, then I don't have a problem with
it. But if it does something different, that's where I'm
caught in a box on this one. I want to have happen
exactly what you said, but I don't want to be outside
that other statute that gives me not just the
responsibility, but the rights that go with it.
Number 1848
REPRESENTATIVE JAMES explained that when the public reads a
statute, if the statute doesn't specifically refer [the reader]
somewhere else, the reader may never get there. She thinks
subsection (d) makes it clear by referring to the other statute
where it is more thoroughly delineated. Therefore, the public
would not be missing that issue. Furthermore, she thinks it is
important to have the public understand the statute, but she just
does not see that this language in subsection (d) accomplishes
that. She think it ties it in and refers [the reader to the
related statute].
CHAIRMAN KOTT asked if there was further discussion. There being
none, he asked Carl Rose to comment.
Number 1906
CARL ROSE, Executive Director, Association of Alaska School Boards,
said the association previously had three areas of concern. First
he noted, the association had been concerned about differentiating
between policy at the board level and the safety program devised at
each school site. House Bill 253 still requires a considerable
amount of work, but he thinks it now delineates the difference
between district policy and what that means in terms of legal
status and the authority of local schools to put together a plan
consistent with that.
Number 1932
MR. ROSE said his second point was related to concern for due
process, as had been discussed earlier. In AS 14.31.30, it says
that a teacher or employee may not be terminated or otherwise
punished for enforcement of the above approved school disciplinary
and safety program. That initially had raised a question with the
association about what recourse a school district would have to
step in and investigate. Mr. Rose believes that is why subsection
(d) was included. He doesn't know that it actually does what it
was designed to do, but he believes it gives the administration or
a parent who has a concern the opportunity to investigate, validate
and take appropriate action.
Number 1980
MR. ROSE said the third point of concern to the association had
been "criminalizing" school board members, who are elected
officials. He thinks the recommended change from a misdemeanor to
a violation is appropriate. Mr. Rose then asked what HB 253 does,
even in its amended form, that is not accomplished in Chapter 4 of
the Alaska Administrative Code (4 AAC). He said he has concluded
that the issue of school safety is critical enough to justify
elevated concern. Although HB 253 is attempting to do that, he
wonders if the bill succeeds in doing so.
MR. ROSE pointed out that he sees some additional costs that will
be placed on the school district [by HB 253], but who would be
opposed to a school safety program? He said he appreciates the
effort by the sponsor and staff to try to accommodate his group's
concerns, and he thinks they have succeeded to some degree. He
again asked what this does that isn't covered under 4 AAC. He
answered that, frankly, he doesn't see much other than specificity.
He does think that if a teacher's actions are not reviewable, in
that the teacher may not be terminated for exercising his or her
responsibilities under a school safety plan, then it is appropriate
to include subsection (d). That ensures that the teacher can be
held accountable. Mr. Rose concluded that progress has been made
toward addressing the association's concerns, but he still does not
know if HB 253 "is really going to get us where we need to go."
Number 2070
REPRESENTATIVE JAMES said she wasn't sure she had understood Mr.
Rose's comments. She thinks he agrees with the need to be
absolutely sure that the teacher is not going to be "hatcheted"
without going through the process currently in use. In that case,
it is very important to tie together the safety and discipline
issues addressed by HB 253 and the fact that it ought to be done in
a manner consistent with the current system. She does not want HB
253 to "stand out there by itself" and to allow any damage to be
done before pre-existing rights are claimed by a teacher.
Subsection (d) ties HB 253 into the context of existing practice,
saying that they are consistent. She asked Mr. Rose if that was
what he had said.
Number 2137
MR. ROSE said yes. If HB 253 is going to include subsection (a),
which says an employee may not be terminated or otherwise punished
for enforcement of the school disciplinary and safety program, then
something needs to be said in subsection (d) that the employee
shall enforce the approved school disciplinary program in a way
that is consistent with the PTPC. The association's concern had
been that if [an administrator] couldn't take corrective action
that seemed necessary, then a teacher could act and a parent might
not have any recourse. Also, at that time, HB 253 had referred to
"criminalization": if an administrator questioned a teacher's
enforcement, took corrective action, and later was found to have
been wrong, that could have resulted in a class A misdemeanor.
Number 2190
CHAIRMAN KOTT asked what happens now, in the absence of HB 253, if
the PTPC's professional and ethical standards are not followed by
a teacher. What is the recourse at this point other than tenure
review or performance evaluation?
Number 2227
MR. ROSE gave the example of an employee [teacher] taking action
that is deemed to have been inappropriate. Under current law, the
teacher's action would be investigated. If the investigation
showed that the action had, indeed, been inappropriate, the result
probably would be a letter to that effect going into the teacher's
personnel file. If there is going to be a termination as a result
of a teacher's behavior, that is a "big deal," he said. There
already are processes for termination in existing law. Mr. Rose
specified that his concern is that subsection (a), in the absence
of subsection (d), could cause problems. If the school board can
be sued, what can it do to ensure that if a parent comes and raises
a question, the board can go in and revisit that issue? When he
look at subsection (a) in the absence of (d), he does not know what
his recourse is.
Number 2298
CHAIRMAN KOTT asked if there currently is a school disciplinary and
safety program that has been adopted by the PTPC.
MR. ROSE said he doesn't think it is called a school disciplinary
program; it is called a student rights handbook.
CHAIRMAN KOTT surmised that the PTPC will have to adopt a
disciplinary and safety policy in order to enforce it. Since the
makeup of the commission consists of nine members, five of them
teachers, would that not lend itself to some very generic or
general considerations when the policy is adopted so there would be
some discretion?
MR. ROSE said he could not provide an answer on that.
Number 2356
REPRESENTATIVE GREEN asked if deleting subsection (d) and inserting
(in line 6, after the word "students") the words, "shall enforce,
but," would allay Mr. Rose's concern and still avoid the problem
that Representative Dyson had brought up originally. As
Representative Kerttula had pointed out, perhaps it should be in
subsection (a) if it is going to be there.
MR. ROSE said that would give direction to what the
responsibilities are, if these people "shall enforce" a school
disciplinary program.
REPRESENTATIVE KERTTULA commented that Representative Green and Mr.
Rose were "going to exactly" her concern. Subsection (d) is
leaning toward a definition of enforcement, but by not defining it
right in that section [subsection (a)], one runs the risk of having
things get really confusing, especially if this goes to court. She
proposed having something in subsection (a) along the lines of "may
not be terminated or otherwise punished for enforcement consistent
with the professional teaching standards." She said her concern
was that there are going to be two different systems that don't
really work together, the professional teaching standards and
school disciplinary plan. It might also be appropriate to revise
subsection (a) to say, "each governing body shall adopt a written
school disciplinary and safety program."
REPRESENTATIVE KERTTULA said the safety and discipline programs
need to be consistent with the professional teaching standards.
One cannot have a standard that is out of alignment with
professional teaching practices because then that is just "setting
up" the teacher with two different sets of standards. "I think
everybody wants to get to the same place," she added. "We want the
teachers enforcing the standards, and if they properly enforce
those standards, we don't want them to be punished. It's just [a
matter of] what's the easiest way to be clear about that."
Number 2455
MR. ROSE agreed.
REPRESENTATIVE JAMES said Representative Kerttula had just pointed
out a huge problem: HB 253 is asking the school boards to write
these policies. She asked whether that necessarily means, then,
that the PTPC is going to have to ratify every school board policy.
TAPE 00-33, SIDE B
REPRESENTATIVE JAMES continued:
What is the intent here? The reason we have this bill
before us is because there is a problem, a serious
problem. It's called 'no discipline in schools.' The
reason is that we really haven't addressed it
[discipline] seriously, and the people who should address
it are the school boards. Isn't that what we're trying
to fix here, so that there is a system and the teachers
if they do these things can't be held liable for doing
something that might be inconsistent someplace else?
Number 0031
MR. ROSE replied that setting policy is the responsibility of
schools, and policies are in place across the state. The question
is how they are administered. He thinks Representative Dyson's
bill suggests that he would like to have the community involved in
the discussion to determine the norms, so that the programs would
reflect those norms. How they are administered throughout
districts seems to be the problem. Mr. Rose said there is
continuity in the majority of school districts. However, in some
areas there appears to be a problem from time to time that HB 253
is trying to address. But he does not think the policy issue is
where the problem is. Rather, he thinks the problem is in the
administering, which ought to reflect the norms in the community.
Number 0098
REPRESENTATIVE JAMES asked if Mr. Rose was saying that there is no
enforcement because there is no administrative enforcement of the
policies that are already there. She asked: What does the PTPC
say about this? What is its current position on teachers who don't
administer the policies of the school district?
MR. ROSE answered that he doesn't think the PTPC standards are
relevant to the concerns being discussed.
Number 0177
REPRESENTATIVE JAMES explained that she doesn't think that it is
possible to pass a piece of legislation that doesn't relate to the
PTPC in some way, shape or form, "because aren't they the ones that
have the final decision on whether or not teachers are punished?"
MR. ROSE said he did not believe so. "I think the termination
takes place at school district level," he added, "and whether you
go after someone's certificate is where the PTPC comes in."
Number 0198
REPRESENTATIVE KERTTULA said she had just looked up the
responsibilities of the PTPC. According to statute, the PTPC is
supposed to prepare regulations and to have responsibility over
ethical and professional performance of the teacher; preparation
for and continuance in professional services; and contractual
obligations. "So it isn't a great fit," she observed. She
suggested that rather than trying to make the two fit together, HB
253 could just say "lawful enforcement, which would clear it up for
her.
CHAIRMAN KOTT asked if anyone else wished to testify on HB 253.
There being no response, he declared that public testimony on HB
253 was closed.
Number 0261
REPRESENTATIVE KERTTULA made a motion to adopt Amendment 1: On
page 3 to delete subsection (d), lines 22-24, and in subsection (a)
on line 6, before the word "enforcement," to insert "lawful."
There being no objection, it was so ordered.
Number 0301
REPRESENTATIVE JAMES told the committee that she still is concerned
that there is a standard being set and if a teacher enforces that
standard, the teacher cannot be punished. But the bill does
nothing if the teacher doesn't enforce that standard, she
indicated, which was removed with subsection (d).
CHAIRMAN KOTT recalled that the committee had heard from a
testifier that there already are provisions being used to ensure
that the standards, whatever they might be, are utilized and
enforced in the classrooms.
Number 0340
REPRESENTATIVE GREEN expanded on Representative James' concern. He
said HB 253 now includes a provision that says a teacher cannot be
terminated for enforcing an approved program, but now it doesn't
say that the teacher will [enforce]. He asked whether that means,
by implication, that the teacher or teacher's assistant shall
enforce the program. He further asked whether the title
automatically ensures that there will be enforcement or whether HB
253 in any way contradicts other places in law that say "that they
will enforce."
CHAIRMAN KOTT said he thought it would be understood that teachers
would lawfully enforce, as addressed in other areas.
Number 0394
REPRESENTATIVE JAMES said she was still listening in her mind to
Mr. Rose's testimony that they have policies but that it is an
administrative problem, which HB 253 does nothing to fix. "We
haven't done a thing if the teacher doesn't do it or chooses not to
do it," she added.
CHAIRMAN KOTT asked Mr. Cyr to reiterate exactly what he had said
about a teacher who did not want to enforce the safety or
disciplinary program established by that particular board or
school. For example, what are the consequences, what actions are
available and what remedies can be taken against that teacher who
fails to perform in accordance with the intended [policy]?
Number 0461
MR. CYR answered that a classroom teacher has an obligation to put
into place all of the policies that are set by the school board
that have to do with the classroom, and discipline is a large piece
of that. Lack of discipline is the most common reason for not
retaining a probationary teacher, he said. If a teacher cannot
maintain discipline, then the supervisor has an obligation to
evaluate the situation, point out what is being done wrong, and
indicate ways of correcting it. And at the end of a time specified
by law, a teacher who has not made the appropriate corrections can
be terminated. That can be done not only with a probationary
teacher, but also with a tenured teacher. Mr. Cyr continued:
I think Representative James raises an interesting point.
What happens when there is a failure of the
administration to basically do their job, when they are
not evaluating, when they don't want to get into that?
I don't know that this law addresses it. I think that
most of the administrators like most of the teachers are
trying to do a good job and trying to do the right thing.
Are there problems out there? You bet. Are we working
to fix them? Yes. Does this law address it? I don't
think it addresses it anywhere. I don't think that was
the intent of this law.
Number 0575
CHAIRMAN KOTT agreed that HB 253 does absolutely nothing that
forces administrators to provide guidance or oversight to the
teacher who is not following the practice of having discipline or
safety in the classroom. That is not addressed in this bill.
MR. CYR said HB 253 places a responsibility on school districts to
have a discussion at the school level as to what is proper, what
kind of discipline should be expected, what should be expected of
children. That is going to place a lot of pressure within the
community; with the administrator, once those decisions are made;
and with the classroom teacher. Mr. Cyr said he believes that
clears up some doubt around what should be expected in the
classrooms. In that respect, he thinks the bill does something.
He elaborated, "I think that conversation forces those people to
become more responsible. At least this lays out those guidelines
and parameters for the community to discuss. I think that's the
important piece here."
Number 0657
REPRESENTATIVE CROFT said he doesn't think the sponsor was trying
to tackle every conceivable aspect of this. He stated:
It [HB 253] tried to address the adoption of disciplinary
and safety programs and making sure that teachers who
follow them aren't going to be disciplined, and I think
we've got it to a point where it does that. If there is
more to be done, it can be done in other legislation or
at other times. But I think we've gotten Representative
Dyson's bill to more accurately reflect what
Representative Dyson wanted to do. I'm not sure he
wanted to tackle the area of forcing administrators to
force teachers to do their job. I don't know that that
was any part of the impetus of this legislation.
CHAIRMAN KOTT agreed with that assessment. He noted that
Representative Dyson, in his opening remarks, had identified the
problems that he was trying to correct. Chairman Kott stated:
In no way did I hear that he even insinuated that there
might a problem with administrators not providing the
right guidance to the teachers. We may be misguided in
our understanding of what's going on there. But until I
hear otherwise, I think the administrators are doing a
fine job, and I haven't heard of any problems. And if
there are problems, I guess, you're right, we can correct
those in other pieces of legislation.
Number 0732
REPRESENTATIVE GREEN asked Mr. Keller what the intent of the
sponsor is.
CHAIRMAN KOTT further asked Mr. Keller what difference HB 253 might
make in relation to 4 AAC.
MR. KELLER answered the first question by saying:
You hit it right on. Our intent in this bill has nothing
to do with motivating administrators to administer school
disciplinary programs; that was never part of it. And
I'd like to reiterate the value of the discussion at the
community level on what the standards are. That's always
been a prime premise of the bill. It was our perception
that there are a lot of schools out there that have not
at the community level determined what the standards of
behavior are in the classroom.
MR. KELLER then addressed the second question, saying that if the
regulations are already handling this, "we want to make sure that
the statute is there behind it to make sure it stays there; so
that's a valid point."
CHAIRMAN KOTT remarked that he believes the committee had crafted
a reasonable piece of legislation.
Number 0824
REPRESENTATIVE CROFT made a motion to move CSHB 253 [Version S], as
amended, from the committee with individual recommendations and the
attached zero fiscal note. There being no objection, it was so
ordered and CSHB 253(JUD) moved from the House Judiciary Standing
Committee.
HB 233 - MUNICIPAL BANKRUPTCY
Number 0893
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 233, "An Act granting authority to each municipality
to be a debtor under 11 U.S.C. (Federal Bankruptcy Act) and to take
any appropriate action authorized by federal law relating to
bankruptcy of a municipality." [Before the committee was CSHB
233(CRA).]
JONATHON LACK, Staff to Representative Halcro, testified on behalf
of Representative Halcro. Mr. Lack began by explaining that HB 233
had been introduced last year when Representative Halcro was co-
chairing the House Community and Regional Affairs Standing
Committee, which is listed as the sponsor of HB 233. Mr. Lack then
told members that in 1994, the United States Congress had changed
federal bankruptcy law to require local governments to get
authority from their state government before they could go through
any type of bankruptcy reorganization. Most states (43) have
granted that authority to their local governments, but Alaska is
one of the few states that have not. House Bill 233 would allow
local governments to seek protection in Chapter 9 of the federal
bankruptcy law.
CHAIRMAN KOTT asked if anyone wished to testify; there was no
response. He then asked if anyone had questions for the sponsor's
representative. Seeing and hearing none, he announced that public
testimony on HB 233 was closed.
Number 0824
REPRESENTATIVE CROFT made a motion to move CSHB 233(CRA) out of
committee with individual recommendations and the zero fiscal note.
There being no objection, it was so ordered and CSHB 233(CRA) was
moved from the House Judiciary Standing Committee.
HJR 35 - REPEAL BRADY ACT
Number 1001
CHAIRMAN KOTT announced that the next order of business would be
HOUSE JOINT RESOLUTION NO. 35, relating to requesting the United
States Congress to repeal the "Brady Handgun Protection Act".
RYNNIEVA MOSS, Staff to Representative Coghill, Alaska State
Legislature, primary sponsor of HJR 35, provided information
similar to what she had presented with the sponsor statement at the
last committee meeting. She said Representative Coghill had
introduced HJR 35 because he feels that government is placing
unfair restrictions on responsible citizens by failure to act
responsibly in enforcing existing laws. Ms. Moss told members that
the Virginia police, for example, make about 400 arrests per year,
more than the federal government does nationwide, as the federal
government prosecutes fewer than one in 1,000 violators.
MS. MOSS reported that in 1996, the [federal] General Accounting
Office released figures that indicated President Clinton had
exaggerated by 65,000 the number of persons denied permission to
purchase guns in 1997; he had said there were 69,000, but in
reality there were about 3,000. In 1997 and 1998, 6,000 students
were caught with illegal guns at schools, but only 13 were
prosecuted. Furthermore, a Seattle Post-Intelligencer article
earlier this year had pointed out that there are 700,000 physicians
in this country, with 120,000 accidental deaths caused annually by
physicians. In contrast, there are 80 million gun owners, with
1,500 accidental deaths.
MS. MOSS said the message that Representative Coghill is trying to
give to Congress is that if the laws are not being enforced, then
there is no compelling reason to restrict a United States citizen
from the right to keep and bear arms. [Citizens'] Second Amendment
rights are being infringed upon. The right to privacy is being
infringed upon. The right to protect oneself and one's family is
being infringed upon, based on non-enforcement of laws.
Number 1120
CHAIRMAN KOTT said his only initial question concerned page 1, line
14, where it says the Brady Act basically violates the provisions
of the Second Amendment. "Are we suggesting," he asked, "that
Congress passed an unconstitutional bill?"
MS. MOSS said she thinks that would be Representative Coghill's
perception. There is a court case, Texas v. Emerson, now in the
U.S. Court of Appeals for the Fifth [Circuit], appealing a federal
court decision that the Second Amendment is, indeed, an individual
right, not a group right, as has been inferred in the past from the
use of the word "militia."
Number 1162
REPRESENTATIVE CROFT asked what the effect would be if the federal
government were to repeal the Brady Bill. Would the background
checks be gone?
MS. MOSS said the background checks would not be eliminated because
they were an addition to federal law after passage of the Brady
Act. The Brady Act was passed in 1968; it was amended in 1994,
1996 and 1998.
REPRESENTATIVE CROFT asked what would happen if Congress repealed
the Brady Act, as HJR 35 requests.
MS. MOSS said it is her understanding that the National Instant
Checks System (NICS) was passed as separate legislation, and if the
Brady Act were to be repealed, the NICS would remain in place.
Number 1185
REPRESENTATIVE CROFT asked what would change.
MS. MOSS explained that repeal of the Brady Act would remove the
restrictions on what type of guns could be possessed. It would
also eliminate provisions that now prevent people who have been
convicted of misdemeanors from owning guns. In response to a
question by Representative Croft, she clarified that persons
convicted of domestic violence misdemeanors now are prevented from
owning guns. She further clarified that the Brady Act restricts
ownership of certain types of guns, including some categories of
assault weapons. She said many of the guns used in Alaska in the
past for hunting are considered semi-automatic weapons.
REPRESENTATIVE CROFT summarized his understanding that prior to the
Brady Act, restrictions on gun ownership applied only to convicted
felons, not to those convicted of domestic violence misdemeanors.
He asked whether anything else would be changed by repeal of the
Brady Act.
MS. MOSS answered that her understanding is that repeal of the
Brady Act would eliminate everything except for the instant check.
Number 1253
REPRESENTATIVE CROFT pursued clarification of "everything." He
said he thought that at various times, Congress had prohibited
"various categories of things," but all of those prohibitions have
been "rolled into" the Brady Act, so this [HJR 35] would wipe them
all out.
MS. MOSS affirmed that. She also pointed out that there has been
some misconception about the National Rifle Association (NRA) and
its place in gun laws. She said the NRA was instrumental in
putting together some of the language for NICS, and the NRA was
never opposed to the instant check. In response to Representative
Croft's inquiry, Ms. Moss said the NRA supports HJR 35.
Number 1290
CHAIRMAN KOTT asked if there were additional questions, or if
anyone else wished to testify. There being no response, he
announced that public testimony was closed on HJR 35.
Number 1353
REPRESENTATIVE JAMES made a motion to move HJR 35 out of committee
with individual recommendations and the accompanying fiscal note.
There being no objection, it was so ordered and HJR 35 was moved
out of the House Judiciary Standing Committee.
HJR 53 - CONST AM: WILD FOOD RESOURCES
CHAIRMAN KOTT announced that the next order of business before the
committee would be HOUSE BILL NO. 53, "An Act relating to allowable
absences from the state for purposes of eligibility for permanent
fund dividends; and providing for an effective date." [Before the
committee was CSHJR 53(RES).]
Number 1395
EDDIE GRASSER, Staff to Representative Masek, Alaska State
Legislature, noted that there was a proposed committee substitute
(CS), Version I [1-LS1337\I, Utermohle, 3/18/00], which he would
address that day. He informed the committee that he has been
working with members of the commercial fishing industry in order to
ensure that Representative Masek's intent that consumptive users be
accorded this protection would apply across the board. She does
not want to cause conflicts among consumptive users. Therefore, in
working with the commercial fishing industry, changes were made
primarily in subsection (b).
MR. GRASSER conveyed the belief that if HJR 53 were placed on the
ballot and passed, it would do the following. First, it would
provide people in areas such as McGrath another legal tool to try
to get the state to implement a management scheme. Therefore, the
word "enhanced" [was inserted on page 4, line 7]. Furthermore, the
sponsor would like to include the language specified in Version I
in subsection 2(b). In discussions, several attorneys had pointed
out that this language would not necessarily prevent the Board of
Fisheries or the Board of Game from closing areas to consumptive
uses for some reason; however, it would raise the bar somewhat so
that [closing areas to consumptive uses] could not primarily be
done for a nonconsumptive purpose. For example, the Board of Game
had closed bear hunting on Paint River, north of McNeil River,
although no biological evidence was presented to close that bear
hunt; it was done primarily because people viewing bears in McNeil
River State Game Sanctuary were concerned that individual bears
would accidentally be killed in the harvest and thus no longer be
available for viewing at McNeil River.
MR. GRASSER pointed out another consideration. Recently the
Governor had written a letter to the Board of Game requesting that
a wolf pack be protected by closing an area adjacent to Denali
National Park. Both the National Park Service (NPS) and the Alaska
Department of Fish & Game (ADF&G) initially had stated that there
was no biological need to do so. Furthermore, there was probably
no reason to do so to protect the viewing interests within the
park's borders.
MR. GRASSER noted that closures for conservation purposes could
still occur. For example, McNeil River could be closed for the
conservation purpose of protecting the bear population in an area
where the bears congregate. Therefore, the bear population would
not be unnecessarily diminished through hunting efforts, and there
still would be a supply of bears that could be hunted outside of
the refuge.
Number 1624
MR. GRASSER explained that Representative Masek believes HJR 53 is
necessary because over the last 25 years, animal rights groups have
continually pressured the state and the federal government to close
hunting and trapping in more areas in Alaska. During the Alaska
National Interest Lands Conservation Act (ANILCA) debates, there
were many comments that there would not be any further closures,
and there were provisions in ANILCA to protect hunting in some of
those preserves. However, the NPS has continually worked to close
down areas to hunting by denying access or by a closure, Mr.
Grasser contended. For example, the NPS has proposed the closure
of subsistence hunting in the Kantishna area of Denali National
Park. In that case, although subsistence was accorded the
preference among hunters within ANILCA, it is not considered the
priority use among nonconsumptive uses. Therefore, the NPS had
decided that tourism was the higher and better use in that area,
and had moved to close hunting.
MR. GRASSER pointed out that the same situation exists with
commercial and subsistence fishing in Glacier Bay National Park and
Preserve and a few other areas of the state. Therefore, without
some extra protection for consumptive users, it appears that this
trend will continue, especially when considering that most people
in the state do not hunt. Mr. Grasser noted that he grew up in
Alaska and hunted in the state even before statehood. He reviewed
his hunting history and the areas that he has been locked out of,
through closures.
MR. GRASSER told members that 40 million acres in Alaska are
entirely closed to hunting and trapping. Another two-thirds of
Alaska is off-limits to any active, traditional or intensive
management for predator-prey relations and habitat manipulations
because the land belongs to the federal government, which has ruled
out such management. However, the regulations say that some
consideration must be given to nonconsumptive uses; therefore, some
areas must be closed to hunting in order to provide a priority for
nonconsumptive uses. Mr. Grasser said, "I would suggest that the
40 million acres that we have already closed, and the additional
two-thirds of the state that are basically closed to any kind of
active management, do show that the state has given a priority to
viewing and other nonconsumptive uses."
MR. GRASSER turned to the game regulations. He informed the
committee that one of the highest priorities for viewing is bear
viewing, and two of the premier habitat areas for brown bear are
located on Unit 8, Kodiak Island, and Unit 9, the Alaska Peninsula.
He said he is intimately familiar with both areas because he has
guided in both areas. The regulations for Unit 9 specify almost no
open season in most of the unit. There are a few openings for
subsistence in Unit 9, the Western Alaska brown bear management
area, which is by registration only, and where hunting can only
occur from September 1 through May 31. In the Chignik brown bear
area, one can subsistence hunt from November 1 to December 31. In
the remainder of Unit 9, there are a couple of registration hunts
in the Naknek River drainage due to the conflict between human
populations and bears. In the remainder of Unit 9, one can hunt
every other year for two weeks. Therefore, Mr. Grasser suggested,
most of Unit 9 has already been given a priority for nonconsumptive
uses by action of the Board of Game. The same is true for Unit 8.
Number 1959
MR. GRASSER noted that he had performed a quick search on the Web
in order to discover what sort of opposition there is to hunting
and trapping from established animal rights groups or environmental
groups. There are literally hundreds of groups organized in the
United States and around the world that are actively pursuing a
closure to hunting, trapping and fishing. He said that the Friends
of Animals in Connecticut say the following about hunting in the
McGrath area: "Meanwhile, local communities have announced that
they are tired of waiting for the state to act, and are therefore
implementing their own control program in the McGrath area. Our
[the Friends of Animals] position is that the Alaska Department of
Fish & Game has an obligation and legal authority to stop these
hunts."
MR. GRASSER turned attention to the Humane Society of the United
States, which he indicated has said, "Wildlife professionals remain
firmly imbedded in the historic paradigm of conservation while the
public increasingly is converted to the expanding paradigm of
environmentalism." He remarked that he had pointed out the last
statement because sometimes environmentalism has been construed to
be conservation. However, he has determined, in working in Juneau
the last 18 years, that environmentalism means preservation, not
conservation. Mr. Grasser continued to provide the committee with
examples that he had encountered on the Internet. He concluded
that such groups are not going away.
MR. GRASSER noted that Representative Masek's office had recently
received a copy of Ron Arnold's book, Undue Influence. He said
this book discusses prescriptive foundations and the attack on the
resource class throughout the U.S. He himself has been studying
the environmental movement for the last few years and believes some
of this [information in Undue Influence] is good. He has found
that ex-members of the environmental community, such as Walsh
Cochran (ph), author of No Turning Back, have contended that the
environmental movement has become a religion and is bent on
imposing that religion on the rest of America.
MR. GRASSER told members he would read from a couple of things that
illustrate that. He read: "Environmentalism is a moral crusade.
Moral crusades generate true believers, not accommodating
neighbors. You can never be green enough." He continued to read
other comments from environmental groups. In conclusion, Mr.
Grasser said his experience in Juneau and throughout Alaska - as
well as the continuing efforts of some groups to close down more
acres to consumptive users - is the impetus for HJR 53.
Furthermore, he believes the record reflects that "we" have done
quite a bit to protect nonconsumptive uses. Therefore, he believes
that it is time to do something to protect the remaining
consumptive uses, which is what HJR 53 will accomplish.
Number 2350
REPRESENTATIVE GREEN made a motion that the committee adopt the
proposed CS, version 1-LS1337\I, Utermohle, 3/18/00, as the working
document. There being no objection, it was so ordered and Version
I was before the committee.
REPRESENTATIVE GREEN expressed concern with the word "enhanced" on
page 1, line 7, which is also included in the title. He explained
that his concern regards having an unmanageable situation. He
mentioned the beetle-kill situation and asked if the state would
need to "enhance" the forest or grasslands because this applies to
more than merely fish and wildlife. He suggested perhaps
"enhanced" should not be used. He believes that adoption of
subsection (b) accomplishes what is desired.
TAPE 00-34, SIDE A
MR. GRASSER noted that the legislature itself would have the
authority to further elaborate on what these words mean in statute
[after passage of a constitutional amendment]. He pointed out that
only the word "enhanced" would be added to Section 4 [of Article
VIII of the state's constitution]. All these adjectives are based
on the sustained yield principle. According to George Utermohle,
Attorney, Legislative Legal and Research Division, and Ted Popely,
House Majority, as long as a record is established which says that
"enhanced" means those opportunities based on sustained yield to do
something that is within the state's power to do, the state would
not be bound to do something about a beetle-kill forest.
Number 0074
REPRESENTATIVE GREEN remarked that he is concerned that the supreme
court sometimes meddles with what was the intention of the
legislature; someone could make a case [under this language] and
find a sympathetic supreme court that did not understand what the
sponsor meant.
MR. GRASSER agreed that could happen, saying perhaps that
[language] would have to be taken back out. However, the intent is
to provide people, specifically in the rural areas, some
opportunity to go through the legal system to obtain help.
REPRESENTATIVE GREEN reiterated his belief that subsection (b) does
that.
REPRESENTATIVE JAMES referred to Representative Green's mention of
forests and grasslands; she said that doesn't bother her in this.
She explained that she thinks the rule is in there already with
"developed" and "maintained." She added:
And I think we should have somebody tell us that we
should plant more trees and actually create more
grasslands, in both cases, whether we utilize them for
any economic benefit or not, but for the future of our
state. So, I don't have any real problem with
"enhanced," except I don't know what it means.
MR. GRASSER answered that there has been discussion about the word
"enhanced". Essentially, the legislature would have to define this
word in statute if HJR 53 passed.
Number 0229
REPRESENTATIVE CROFT commented that one could "maintain" something
on the sustained yield principle; however, he is unsure how one
would "enhance" it on the sustained yield principle. Either this
[HJR 53] contemplates growing to infinity, which is the meaning of
the word "enhanced," or, if that isn't meant, the word shouldn't be
put in. It is difficult for the courts to be mind-readers.
REPRESENTATIVE CROFT turned to Section 2 and read from subsection
(b), which stated:
Consistent with the sustained yield principle, the
harvest of fish and wildlife may not be diminished solely
to provide for nonconsumptive use of fish or wildlife.
He related his understanding that whenever a consumptive use is
allowed [under the proposed legislation], it is similar to a
ratchet that precludes going back to the former status. If there
too many bears in McNeil River State Game Refuge, for example, and
it were decided that there would be a limited hunt in order to cull
50 bears, wouldn't HJR 53 prevent the state from stopping a 50-bear
hunt the next year as well?
MR. GRASSER agreed that it couldn't be done solely to provide for
a viewing purpose, but said it could be done for a conservation
purpose or to do an ADF&G study.
REPRESENTATIVE CROFT responded:
Well, the purpose there is the viewing of the McNeil
bears. So, I want, the next year, to stop it to allow
that nonconsumptive use. You're right that when you get
down to "almost no bears left," you could do it for
conservation purposes, but I couldn't do it to re-
establish the nonconsumptive use.
Number 0380
MR. GRASSER said that actually it would require an Act of the
legislature to open up McNeil River to bear hunting because that
area is a sanctuary. Therefore, the Board of Game cannot open
McNeil River [State Game Sanctuary].
REPRESENTATIVE CROFT pointed out that this [HJR 53] is a
constitutional amendment. "Even with that, the legislature
couldn't do it," he added.
REPRESENTATIVE KERTTULA agreed, saying it would preempt it.
MR. GRASSER remarked, "That's not the understanding of our legal
people, and it's not our understanding." Having sat on the Board
of Game, he said, there are numerous tools available to the
legislature and the board to stop hunting besides the purpose of
viewing the bears. He pointed out that in the McNeil River case,
a conservation purpose could be claimed in order to arrive at the
point being addressed; the bears congregate at this feeding place,
and it isn't really an ethical place to hunt. Second, that pool of
bears is maintained for the areas outside of that refuge or
sanctuary for legal hunting, which is done not just at McNeil River
but at other places such as Chugach State Park for sheep hunting.
REPRESENTATIVE CROFT asked whether a whale would be considered a
wildlife resource.
MR. GRASSER answered that whales are not managed by the state.
REPRESENTATIVE CROFT again asked whether a whale is a wildlife
resource; there was no response. He asked whether a wolf is
considered a wildlife resource.
MR. GRASSER replied yes to the last question.
Number 0486
REPRESENTATIVE KERTTULA remarked that she would not have a problem
with this if Mr. Grasser personally was the one making the rules
because she, having grown up with Mr. Grasser, trusts his ethics.
However, she doesn't see that subsection (b) doesn't preempt any
other rules. It clearly says "may not be diminished solely to
provide for nonconsumptive use." Therefore, if there is no
consumptive use, [the harvest] cannot be diminished. She asked,
"Is that different from what your counsel is saying?"
MR. GRASSER explained that his counsel had said that by
constructing it [the language] in this fashion, it leaves the door
open for all kinds of conservation purposes. However, if the only
reason for closing it [a harvest] was for viewing, then there would
be a problem.
REPRESENTATIVE KERTTULA noted that it would be viewing or anything
that is different from eating, which is nonconsumptive. She
requested confirmation.
MR. GRASSER reiterated that according to discussions with Mr.
Popely and Mr. Utermohle, conservation purposes or the purposes of
doing a management study on the population by the ADF&G would
constitute a reason for closing that population to hunting or
trapping.
REPRESENTATIVE KERTTULA asked whether Mr. Utermohle and Mr. Popely
were saying, then, that it is for consumptive use because it would
be bringing back up the consumptive use.
MR. GRASSER answered that he believes they were probably looking at
some of those conservation purposes as being necessary for studies.
Therefore, it would not necessarily be a consumptive or a
nonconsumptive use, but would be a scientific use.
Number 0609
REPRESENTATIVE KERTTULA said she thinks that is a real question,
however. She believes that if there is something nonconsumptive,
that couldn't be done under this language. She indicated she
wished to talk with Mr. Utermohle and Mr. Popely about that. She
then asked what this could do to commercial fishing. Would
commercial fishing be considered a consumptive use? Or is it one
step removed because the person fishing isn't consuming the fish.
She asked whether there already is an opinion on that.
MR. GRASSER explained that the reason that the sponsor and her
staff had pushed for the current language [in Version I] versus the
language that had passed from the House Resources Committee is
because there is a legitimate question regarding human consumption.
The question is whether the language would preempt commercial
fishing in favor of personal use, subsistence and sport fishing.
Mr. Grasser said he and Mr. Popely had met with the United
Fishermen of Alaska (UFA) Board of Directors and had talked to
[Legislative Legal Services]; he said their contention is that the
phrase "the harvest of" would include any resource group that
harvests, whether for commercial or noncommercial uses.
Number 0692
REPRESENTATIVE ROKEBERG stated that he has concerns similar to
those of Representatives Croft and Kerttula. He noted that because
the animals are so readily accessible, hunting of the Kenai Lake
sheep herd on the south face of the mountain and the goats at
Turnagain Arm has been restricted; for the sheep herd in
particular, that has been the case since the 1950s or before. The
animals have been accessible for viewing by the public, which is
why the herd has always been protected. Therefore, if that herd
were to move out of its current geographic location, HJR 53 would
preclude the ADF&G and the Board of Game from shutting down that
area to protect the herd that was wandering. He asked if he was
correct.
MR. GRASSER answered that Representative Rokeberg is partially
correct. However, he himself had legally hunted sheep on the
Turnagain Arm drainage about 25 years ago.
REPRESENTATIVE ROKEBERG clarified that he now was referring to the
goats of Turnagain Arm that come down to the roadway. Those goats
would presumably have to be protected because that area and
population have been "ruined by human contamination." These
animals cannot be hunted because they think humans are friendly.
Number 0817
MR. GRASSER agreed, adding that people haven't been able to hunt
those sheep for some time, nor able to hunt the sheep in Cooper
Landing or Sheep Mountain Preserve by Caribou Creek on the Glenn
Highway. However, those three populations are migratory and do
wander into areas where there is legal hunting. He noted that
sheep are fairly migratory within their home ranges; those sheep
wander in and out of the protected areas. Again, that would be
part of the conservation purpose, he said. In the Turnagain Arm
area, furthermore, there is a definite safety issue involved that
could result in closure of hunting on that herd. Mr. Grasser noted
that part of the Sheep Mountain Preserve is set aside to protect
the core area of the sheep range in order to allow for propagation
and the ability of those sheep to migrate into the rest of the
range.
REPRESENTATIVE ROKEBERG questioned, however, whether that closed
area could be expanded to protect that particular herd, under the
amendment proposed in HJR 53.
MR. GRASSER said that one could do so if the number of people
increased in an area, for example, and it became a public safety
issue; in that case, the Board of Game would probably close sheep
hunting in that area even under the terms of this constitutional
amendment.
Number 0937
REPRESENTATIVE CROFT asked if anywhere in statute it says that
human consumption or subsistence is the highest use.
MR. GRASSER answered that subsistence is accorded the preference
above other consumptive uses, but there is no place in statute that
he is aware of that says consumptive use is the highest and best
use. In further response to Representative Croft, Mr. Grasser
specified that the [subsistence preference] can be found in AS
16.05.258.
REPRESENTATIVE CROFT asked whether this type of provision could be
done in statute.
MR. GRASSER answered that this could be done in statute because the
current language in Section 4, Article VIII, [of the constitution]
refers to the preference among beneficial uses. He added,
"Statutorially, you could do the same thing that you did for the
subsistence preference that's in statute and claim that hunting,
trapping and fishing were going to be accorded a priority over
nonconsumptive uses."
REPRESENTATIVE CROFT surmised, "Because these are uses,
consumptive versus 'non,' we can distinguish them already under our
constitutional provision."
MR. GRASSER agreed. He pointed out that the sponsor statement
expresses willingness to work in order to craft language that met
the goal. Regarding Representative Croft's question about whether
this can be done statutorially, he is correct, Mr. Grasser said.
However, the historical record that he himself is aware of
indicates that "the movement to rid ourselves of the ability to use
resources - especially hunting, trapping and fishing - hasn't
seemed to slow down any." There are calls for more closures, and
hunters in Alaska have become a minority, making up less than one-
fifth of the population. The question becomes whether hunting is
legitimate. Will it continue to be squeezed out, or will the state
afford some protection to a tradition that goes back generations in
Alaska? Mr. Grasser said that is basically the goal, which he does
not believe could be captured with a statutory change because at
some point he believes that "those forces that are looking to get
rid of hunting will probably prevail and remove the statute."
CHAIRMAN KOTT announced that HJR 53 would be held over in order to
have Mr. Utermohle present information at a future hearing
regarding the definition of "enhanced," as well as to clarify the
provision on Section 2, line 12.
HJR 47 - CONST AM: PERMANENT FUND
[Discussion also relates to SJR 33, the companion resolution in the
Senate.]
CHAIRMAN KOTT announced that the final order of business would be
HOUSE JOINT RESOLUTION NO. 47, proposing amendments to the
Constitution of the State of Alaska relating to the permanent fund
and to payments to certain state residents from the permanent fund.
Number 1170
REPRESENTATIVE GARY DAVIS, Alaska State Legislature, sponsor of HJR
47, came forward, requesting that Senator Mackie join him at the
witness table. He reminded members that as presented previously to
the committee, the plan under HJR 47/SJR 33 separates the corpus of
the permanent fund into two branches. The earnings from
approximately 50 percent of the current fund would go to general
government services, and the other 50 percent would be a one-time
distribution to Alaskans who are eligible for the 2001 permanent
fund dividend (PFD). He asked Senator Mackie to explain the charts
he had brought with him.
SENATOR JERRY MACKIE, Alaska State Legislature, presented some
visual aids. He noted that voters would first have to approve the
plan, after which $25,000 would be paid to each eligible Alaskan.
The PFD program would then end after the one-time payout. The
remaining principal of the fund is constitutionally protected; only
the earnings would be used, first to inflation-proof the fund and
then the remaining earnings would go the general fund.
SENATOR MACKIE called attention to a chart comparing projected
earnings at 8, 10 and 12 percent. He said the permanent fund has
never earned less than 10 percent, and thus he would use the 10
percent projection, at which rate $884 million would be returned to
the general fund, after inflation-proofing, to balance the budget
in the year 2002. Senator Mackie pointed out, however, that the
standard projection from the Alaska Permanent Fund Corporation
(APFC) is 8 percent, which he believes to be extremely conservative
because returns have been more like 10 to 12 percent. He
emphasized that the current constitutional mandate that 25 percent
of all oil revenues go into the [permanent] fund wouldn't be
changed. He noted that a handout provided at the previous hearing
contain those projection charts. [The body of the memorandum he
had provided, including the chart, is included in the minutes from
the March 1 hearing on HJR 47.]
Number 1327
REPRESENTATIVE ROKEBERG offered Amendment 1, which read:
Page 2, line 4, after "dividend"
Insert: "on a payment schedule selected by each
individual as provided by law"
REPRESENTATIVE GREEN objected for purposes of discussion.
REPRESENTATIVE ROKEBERG explained that the intention is to allow
the recipient of the $25,000 dividend to elect a payment schedule
that the legislature would be able to pass statutorily. For
example, people could choose a one-year lump-sum payment, a three-
year payout or a five-year payout. It would allow people to
receive the dividend over a period of five years, lowering their
[federal] taxes. Also, it may keep other benefits or provisions in
their income stream from being disrupted. Furthermore, it may
diminish the inflationary results from having some $12 billion,
less taxes, enter the state's economy. It would also be less
destructive because in certain instances many retail and service
businesses in Alaska have relied upon the timing of the PFD for
their sales; this will allow those businesses time to adjust or to
"make hay when the sun shines" over the three to five years or
whatever time would be allowed under statute.
REPRESENTATIVE ROKEBERG continued. He said he believes this is
defensible from a tax standpoint. He also believes that the
legislature, by law, could even establish a check-off system
whereby citizens could use direct deposit of the monies into an
investment brokerage house, for example, just as there now is
direct deposit [of PFDs] into a bank. Representative Rokeberg said
he doesn't believes that the APFC should act as a mutual fund for
the citizens of Alaska, however. "I think we should work with
private industry and investment brokers to encourage people to put
this money into long-term use, and their children's money in long-
term use, which ... would exceed the perceived potential benefits
of receipt of the permanent fund dividend over years," he
concluded, saying those are some of the many reasons for offering
Amendment 1.
Number 1521
REPRESENTATIVE GREEN asked Representative Rokeberg whether he knows
for a fact how the Internal Revenue Service (IRS) would treat this.
He conveyed concern that the IRS may tax the whole amount, whether
it is taken over time or all at once.
REPRESENTATIVE CROFT and others mentioned constructive receipt.
REPRESENTATIVE ROKEBERG said he hadn't had a chance to check with
his accountant. However, he is familiar with deferred compensation
plans; as a private contractor over the years, he has
constructively deferred income many times for tax purposes. He
agreed that it needs to be verified as to whether it would be
constructive receipt of a lump-sum payment if one elected to have
it deferred over time. To make it work, it may be necessary to
stipulate a five-year payout, he added, surmising that arguably
that would be more favorable because of the economic impacts of a
lump-sum payment. That way, there wouldn't be an election on the
part of the recipient.
CHAIRMAN KOTT agreed that the latter suggestion would get around
the [constructive receipt] problem, if that were the will of the
committee. However, that would retain the bureaucracy. "In my own
mind, I'd rather sever this if we're going to sever it," he added.
REPRESENTATIVE ROKEBERG stated that if the committee wanted to
modify Amendment 1 to stipulate a five-year payout because of that
concern, he wouldn't have any objection.
Number 1631
REPRESENTATIVE DAVIS said he doesn't have any objection to the
amendment but has the same concerns that Representative Green had
brought up regarding the position of the IRS. The tax impact of
the proposal is probably the utmost concern that many people have.
If this were an option to mitigate the tax implications, he would
approve of it. If not, however, it isn't a viable part of the
resolution, he suggested, adding, "It'll be in there, but it will
not be enforceable."
REPRESENTATIVE JAMES commented that if the state were to go through
with this and pay out this amount strictly to the public, she
believes the IRS would be involved anyway, because it is likely
that the IRS would want to take some first, before anyone else gets
it. "Certainly, it's not a public purpose," she added.
Number 1684
REPRESENTATIVE CROFT proposed the need to be very sure that it
wouldn't be considered constructive receipt before doing it. If a
five-year payout were considered constructive receipt, and the IRS
asked for taxes up-front on the total amount, a person could
receive $5,000 but have to pay $8,000 in taxes the first year.
There could be some people very irritated about the effect of
Amendment 1. He stated his understanding that there is a
difference between a payment schedule that is fairly ironclad -
which the IRS would probably consider this - as opposed to a
situation where there is some risk involved. He again expressed
worry that this would be constructive receipt.
REPRESENTATIVE JAMES commented that one could borrow money against
it. "It's actually yours," she added.
REPRESENTATIVE ROKEBERG remarked that it is advised as year-end tax
planning - by almost every "writer of tax code and tax avoidance" -
to try to manage income to try to hit the right year, for example.
He said he would defer to Representative James, with her accounting
background, and to the sponsors.
Number 1771
REPRESENTATIVE DAVIS responded that he and Senator Mackie had
spoken to a member of the Alaska Society of Certified Public
Accountants, who are doing an analysis of the resolution; that
question, specifically, is to be addressed by them, but the
sponsors haven't received that [analysis] yet.
REPRESENTATIVE ROKEBERG surmised that the support of HJR 47 would
go up substantially, both within the legislature and the public, if
there could be a graduated payout over time. He himself would have
a serious problem in supporting this amendment [HJR 47] without
some provision for a more staggered payout. "The impacts would be
enormous otherwise," he added.
Number 1818
SENATOR MACKIE informed members that an accountant had told him
that constructive receipt of income would apply here as well.
However, he himself thinks that the key work is "elective." If
somebody has the ability to elect a five-year payout versus a one-
time payment, then that is when the constructive receipt of income
applies. A mandatory five-year payout, for example, would be a
different situation because there is no choice. Senator Mackie
added that he had talked to Representative Rokeberg, and he himself
didn't really see a problem with [Amendment 1] because it says "as
provided by law," which means the legislature has to change the law
to do what Representative Rokeberg wants to do anyway. "And if we
don't, ... and the law provides for a one-time payout, then ...
it's not that big of a deal," he added.
SENATOR MACKIE concluded by saying, "If we were able to give people
an option that gave them some tax protection, I, too, would support
it. But if it didn't, then I wouldn't." He suggested that until
they receive the requested analysis, that is something they will
probably have to deal with in the House/Senate Finance Committees,
when there is a whole debate about taxes and so forth.
Number 1906
REPRESENTATIVE KERTTULA expressed concern that with the payout, no
matter how constructed, it would be deemed that a person had the
right to get at the money and would, therefore, have to pay the
tax.
SENATOR MACKIE restated that his accountants had looked at it too.
He suggested that if one paid the taxes up-front but "front-loaded"
the rest of it, it would be worth far more in 15 years than if it
had been received in $1,700 increments. He said people still have
to pay taxes on that annual PFD.
REPRESENTATIVE KERTTULA asked what would happen if the government
set up a fund whereby a person couldn't get at the money for 15
years but had an individual account that the state would invest for
people.
REPRESENTATIVE JAMES commented that there would be a taxable fund,
then.
REPRESENTATIVE KERTTULA suggested that wouldn't be the case if it
were structured like an annuity, but agreed it would be taxable
when it comes out.
REPRESENTATIVE JAMES said she isn't convinced totally that it is a
preferred public use. The fund itself could be taxable, and then
taxable when [individuals] receive it. "I'm not convinced that
would pass muster," she added.
SENATOR MACKIE responded that, right now, paying out a dividend
every year definitely isn't only a public use.
REPRESENTATIVE JAMES agreed.
SENATOR MACKIE pointed out that this plan not only balances the
budget, to his belief, but starts using the fund for a public
purchase, "which keeps us away from the IRS jumping down our
throats right now, which is what they're ready to do now because we
have not used it for a public purpose."
REPRESENTATIVE JAMES said she believes the dividend can continue
without losing it to the IRS "if we're careful."
Number 1973
REPRESENTATIVE GREEN referred to Representative Kerttula's comments
and expressed concern that [her suggestion] would create a morass
of bookkeeping. He mentioned estate problem for those who died
during the 15-year-period and trusts that would exist. He added,
"It would have to be contracted out because we wouldn't want to
create that kind of a government agency."
REPRESENTATIVE ROKEBERG said he is concerned about somebody turning
the State of Alaska in for a 20 percent reward of $6 billion from
the IRS from improper payment of taxes because of not using the
money for public purposes.
REPRESENTATIVE JAMES said that was her point. If they set aside
this large amount of money to just dissipate to the public, the IRS
will be there to get its money off the top. The other part [of the
fund], which will be used for a public purpose, will be left alone.
Number 2058
REPRESENTATIVE CROFT proposed that perhaps this issue of whether
the fund is subject to double taxation, now or under HJR 47, should
be addressed in executive session. He said the committee is now
having a discussion about possibilities and public policy, but not
about the committee's or someone else's legal opinion.
REPRESENTATIVE JAMES and CHAIRMAN KOTT agreed.
REPRESENTATIVE ROKEBERG took exception to Representative Croft's
suggestion about an executive session. He said the public in
Alaska should be aware of the very real possibilities of the IRS
assessing taxes against the permanent fund. Regarding getting the
legal opinions on that from the [APFC], that would be the type of
thing that would be handled in executive session, but not the
conclusions.
REPRESENTATIVE DAVIS referred to concerns expressed by
Representative Green at the previous hearing. He brought attention
to a letter from Franklin Elder, director of the Division of
Banking, Securities, and Corporations, dated March 2, 2000, which
addresses those concerns; it indicates the division's belief that
they have been very responsive to concerns about scam artists, and
it sets forth how the division reacts to scam artists. He noted
that the letter had been distributed to members.
CHAIRMAN KOTT brought attention back to Amendment 1.
REPRESENTATIVE JAMES and several others members stated objection.
REPRESENTATIVE CROFT suggested that Amendment 1 be withdrawn and
then addressed in the House Finance Committee.
REPRESENTATIVE GREEN agreed it would be better handled there.
Number 2170
REPRESENTATIVE ROKEBERG, noting that members were all nodding in
agreement, withdrew the motion to adopt Amendment 1; it was so
ordered.
REPRESENTATIVE DAVIS commented, "We share the same concern as
Representative Rokeberg. And if it's a legal possibility, we will
certainly, I think, strongly consider it."
Number 2198
REPRESENTATIVE CROFT made a motion to move HJR 47 from committee
with individual recommendations and the attached fiscal note.
REPRESENTATIVE JAMES objected. She explained that she has some
long-term plans in the House State Affairs Standing Committee,
which she chairs; she is awaiting word from the House Finance
Committee that those plans will be addressed there. Until then,
she isn't sending other plans to them, under her vote. "Besides,
it's a dumb bill," she added.
REPRESENTATIVE ROKEBERG complimented Representative Davis and
Senator Mackie for keeping a discussion going, which he believes is
important. He expressed willingness to advance HJR 47 for that
reason, although he believes it needs improvement in order to have
any chance with the public.
REPRESENTATIVE KERTTULA said she would "vote for" Representative
James. However, even though philosophically she has concerns about
this resolution, she wants to keep up the discussion.
CHAIRMAN KOTT said he would echo that: he has difficulty with the
resolution in its present form, but the dialogue needs to continue.
Furthermore, this is the only plan on the table that is moving. He
suggested that the full ramifications would become brought out as
soon as the House Finance Committee addresses some financial
impacts. From a jurisprudence perspective, he believes that the
resolution is legal and constitutional; it is a matter of public
policy as to whether the public will buy into it. Chairman Kott
requested a roll call vote.
A roll call vote was taken. Voting to move HJR 47 from committee
were Representatives Croft, Kerttula, Green, Rokeberg and Kott.
Voting against it was Representative James. Therefore, HJR 47 was
moved from the House Judiciary Standing Committee by a vote of 5-1.
ADJOURNMENT
Number 2320
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:36 p.m.
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