Legislature(2003 - 2004)
04/23/2004 02:12 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 23, 2004
2:12 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Jim Holm
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 309(JUD) am
"An Act relating to testing the blood of prisoners and those in
custody for bloodborne pathogens."
- MOVED HCS CSSB 309(JUD) OUT OF COMMITTEE
CONFIRMATION HEARING
Board of Governors of the Alaska Bar
Joseph N. Faulhaber - Fairbanks
- CONFIRMATION ADVANCED
HOUSE BILL NO. 551
"An Act relating to the issuance of teacher certificates to and
revocation of teacher certificates of persons convicted of
felony drug offenses and to the issuance of limited teacher
certificates to persons convicted of certain crimes involving a
minor and felony drug offenses."
- MOVED CSHB 551(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 545
"An Act relating to the extension under the State Procurement
Code of terms for leases for real estate and certain terms for
certain state contracts for goods and services; and providing
for an effective date."
- MOVED CSHB 545(L&C) OUT OF COMMITTEE
SENATE BILL NO. 316
"An Act relating to motor vehicle safety belt violations."
- BILL HEARING POSTPONED
PREVIOUS COMMITTEE ACTION
BILL: SB 309
SHORT TITLE: BLOOD PATHOGENS TESTING OF PRISONERS
SPONSOR(S): SENATOR(S) WAGONER
02/09/04 (S) READ THE FIRST TIME - REFERRALS
02/09/04 (S) STA, JUD
03/04/04 (S) STA AT 3:30 PM BELTZ 211
03/04/04 (S) Moved SB 309 Out of Committee
03/04/04 (S) MINUTE(STA)
03/05/04 (S) STA RPT 3DP
03/05/04 (S) DP: STEVENS G, COWDERY, STEDMAN
03/17/04 (S) JUD RPT CS 4DP SAME TITLE
03/17/04 (S) DP: SEEKINS, FRENCH, OGAN, THERRIAULT
03/17/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/17/04 (S) Moved CSSB 309(JUD) Out of Committee
03/17/04 (S) MINUTE(JUD)
03/22/04 (S) TRANSMITTED TO (H)
03/22/04 (S) VERSION: CSSB 309(JUD) AM
03/24/04 (H) READ THE FIRST TIME - REFERRALS
03/24/04 (H) STA, JUD
04/08/04 (H) STA AT 8:00 AM CAPITOL 102
04/08/04 (H) Heard & Held
04/08/04 (H) MINUTE(STA)
04/15/04 (H) STA AT 8:00 AM CAPITOL 102
04/15/04 (H) Moved HCS CSSB 309(STA) Out of
Committee
04/15/04 (H) MINUTE(STA)
04/19/04 (H) STA RPT HCS(STA) 3DP 2NR
04/19/04 (H) DP: SEATON, LYNN, HOLM; NR: COGHILL,
04/19/04 (H) WEYHRAUCH
04/23/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 551
SHORT TITLE: DRUG FELONY DISQUALIFIES TEACHER
SPONSOR(S): JUDICIARY
04/05/04 (H) READ THE FIRST TIME - REFERRALS
04/05/04 (H) EDU, JUD
04/13/04 (H) EDU AT 11:00 AM CAPITOL 124
04/13/04 (H) Scheduled But Not Heard
04/15/04 (H) EDU AT 11:00 AM CAPITOL 124
04/15/04 (H) Moved Out of Committee
04/15/04 (H) MINUTE(EDU)
04/19/04 (H) EDU RPT 1DP 1NR 2AM
04/19/04 (H) DP: WOLF; NR: OGG; AM: SEATON, GATTO
04/22/04 (H) FIN REFERRAL ADDED AFTER JUD
04/23/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 545
SHORT TITLE: STATE LEASE AND CONTRACT EXTENSIONS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/25/04 (H) READ THE FIRST TIME - REFERRALS
03/25/04 (H) L&C, JUD
04/07/04 (H) L&C AT 3:15 PM CAPITOL 17
04/07/04 (H) <Bill Hearing Postponed to 4/14>
04/14/04 (H) L&C AT 3:15 PM CAPITOL 17
04/14/04 (H) Heard & Held
04/14/04 (H) MINUTE(L&C)
04/16/04 (H) L&C AT 3:15 PM CAPITOL 17
04/16/04 (H) Moved CSHB 545(L&C) Out of Committee
04/16/04 (H) MINUTE(L&C)
04/21/04 (H) L&C RPT CS(L&C) NT 5DP 1AM
04/21/04 (H) DP: CRAWFORD, LYNN, ROKEBERG,
04/21/04 (H) DAHLSTROM, GATTO; AM: GUTTENBERG
04/21/04 (H) JUD AT 1:00 PM CAPITOL 120
04/21/04 (H) <Bill Hearing Postponed 4/23/04>
04/23/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR TOM WAGONER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 309.
KURT OLSON, Staff
to Senator Tom Wagoner
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 309 on behalf of Senator
Wagoner, sponsor, and responded to questions.
PORTIA PARKER, Deputy Commissioner
Office of the Commissioner
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 309.
JOSEPH N. FAULHABER, Appointee
Board of Governors of the Alaska Bar
Fairbanks, Alaska
POSITION STATEMENT: Testified as appointee to the Board of
Governors of the Alaska Bar.
RYAN MAKINSTER, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 551 on behalf of
Representative McGuire, Chair, House Judiciary Standing
Committee, sponsor.
LARRY WIGET, Executive Director
Public Affairs
Anchorage School District (ASD)
Anchorage, Alaska
POSITION STATEMENT: Provided testimony during discussion of HB
551.
BONNIE BARBER, Executive Director
Professional Teaching Practices Commission (PTPC)
Anchorage, Alaska
POSITION STATEMENT: Provided testimony during discussion of HB
551.
LAWRENCE LEE OLDAKER, Chair
Professional Teaching Practices Commission (PTPC)
Auke Bay, Alaska
POSITION STATEMENT: Testified in opposition to HB 551.
VERN JONES, Chief Procurement Officer
Division of General Services
Department of Administration (DOA)
Juneau, Alaska
POSITION STATEMENT: Presented HB 545 on behalf of the
administration.
ACTION NARRATIVE
TAPE 04-71, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 2:12 p.m. Representatives
McGuire, Ogg, Samuels, and Gara were present at the call to
order. Representatives Anderson and Gruenberg arrived as the
meeting was in progress.
SB 309 - BLOOD PATHOGENS TESTING OF PRISONERS
Number 0043
CHAIR McGUIRE announced that the first order of business would
be CS FOR SENATE BILL NO. 309(JUD) am, "An Act relating to
testing the blood of prisoners and those in custody for
bloodborne pathogens." [Before the committee was HCS CSSB
309(STA).]
Number 0080
SENATOR TOM WAGONER, Alaska State Legislature, sponsor,
indicated that a member of his staff would present SB 309.
Number 0083
KURT OLSON, Staff to Senator Tom Wagoner, Alaska State
Legislature, sponsor, relayed that currently, Alaska law allows
only rape victims to request the testing of prisoners for
bloodborne pathogens; SB 309 would allow correctional officers
who have been exposed to blood or other bodily fluids to request
testing of the prisoner responsible for the exposure.
Specifically, AS 18.15 would be amended to include five new
sections: proposed AS 18.15.400 authorizes the process of
testing; proposed AS 18.15.410 provides consent provisions;
proposed AS 18.15.420 addresses testing without consent;
proposed AS 18.15.430 addresses confidentiality issues and
provides penalties for unauthorized disclosure; and proposed AS
18.15.450 defines the terms used in proposed AS 18.15.400 -
18.15.440.
MR. OLSON remarked that last year, 41 correctional officers were
potentially exposed to bloodborne pathogens; in most of these
cases the exposure was intentional. He noted that Senator
Wagoner first became aware of this problem when it was brought
to his attention by a correctional officer from Wildwood
Correctional Center. Mr. Olson offered his understanding that
the correctional officer had been bitten by a prisoner who told
the correctional officer that he was sick but refused to say
what with. In such situations, when the exact illness is not
known, correctional officers undergo treatment with a variety of
medications and are sometimes not fit for duty for a period of
time because of side effects and drug interactions. In the
aforementioned instance, the correctional officer was unable to
work for two and a half weeks, and the cost of the medications
given was approximately $3,000.
Number 0307
MR. OLSON explained that there are two zero fiscal notes
attached to SB 309, one from the DOC and one from the Division
of Risk Management, Department of Administration (DOA). The
latter fiscal note makes reference to a possible savings to the
state should the legislation pass, but that savings is not
quantifiable. In conclusion, he remarked that passage of SB 309
will bring Alaska in line with 24 other states and the federal
government, all of which have similar provisions. He offered
his belief that SB 309 is supported by the DOC, and mentioned
that a representative from the DOC would be testifying.
REPRESENTATIVE SAMUELS noted that he's toured facilities in both
Alaska and in Arizona, and concurred that there are instances
where inmates intentionally attempt to spread bloodborne
pathogens to guards. He characterized SB 309 as a pretty good
protective measure that might mitigate the results of the
problem.
REPRESENTATIVE GARA asked whether the state, when trying to
prove a criminal case, is allowed to take someone's blood
without his/her consent.
SENATOR WAGONER said that such can only be done with a court
order, and relayed that there is such a provision in the bill.
REPRESENTATIVE GARA noted that according to that provision, a
physician must state that he/she needs the information that
would be provided by the test.
Number 0501
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner,
Department of Corrections (DOC), noted that the provisions of
the bill preclude test results from blood that's collected for
this purpose from being used in a criminal proceeding.
REPRESENTATIVE OGG mentioned that federal law on this issue
states: "(d) The results of a test under this section are
inadmissible against the person tested in any Federal or State
civil or criminal case or proceeding."
REPRESENTATIVE GARA pointed out that there is a provision on
page 2 [lines 5-13] requiring that notice be given to the
prisoner and that that notice must include similar language.
CHAIR McGUIRE noted that language on page 5 [lines 4-16]
provides penalties for unauthorized disclosure; unauthorized
disclosure being disclosure for any purpose other than what's
provided in the bill.
MS. PARKER offered her belief that the protection against using
the test results in civil or criminal proceedings is located on
page 2. She added that this is the DOC's intent; it does not
want the results used in civil or criminal proceedings.
CHAIR McGUIRE surmised, then, that the language on page 2 works
together with the language on page 5.
REPRESENTATIVE GRUENBERG shared his concern that the bill does
not specifically provide protection to third parties who might
be exposed to a bloodborne pathogen, for example, the spouse of
a correctional officer who gets bitten by a prisoner. He said
he would want the spouse or the spouse's physician to be
informed of the results of the test.
Number 0869
MS. PARKER pointed out, however, that the DOC must follow Health
Insurance Portability and Accountability Act (HIPAA) and
Occupational Safety and Health Administration (OSHA) regulations
with regard to disclosing information, particularly any kind of
medical information.
REPRESENTATIVE GRUENBERG said he would like something inserted
into the bill that would ensure that the maximum protections
allowed under HIPAA and OSHA are extended to third parties.
MS. PARKER relayed that she would have the DOC's medical
director address that issue either via teleconference or in
writing.
REPRESENTATIVE GRUENBERG noted that Doug Bruce, Director,
Central Office, Division of Public Health, Department of Health
and Social Services (DHSS), has provided the committee with a
bill analysis wherein he suggests some changes to the [original
version of the] bill.
REPRESENTATIVE GARA directed attention back to the language on
page 2 regarding the notice provision's requirement that the
prisoner be informed that test results are not to be used in
criminal or civil proceedings, and asked whether test results
could be provided to the prosecution informally even if the
results are not to be used as evidence in court.
MR. OLSON offered his belief that that issue is addressed on
page 2, lines 26-29, which says in part: "The department shall
disclose the prisoner's existing bloodborne pathogens test
results to the correctional officer without the prisoner's name
or other uniquely identifying information.".
REPRESENTATIVE GRUENBERG, directing attention to Mr. Bruce's
suggested changes [to the original version of the bill], read
one of them as follows [original punctuation provided]:
Page 2, Line 12 indicates that test results "may not
be used as evidence in any criminal proceedings or
civil proceedings." In some cases, it could be
appropriate to charge a prisoner in an institution who
has intentionally attempted to infect a staff member.
Test results would be necessary evidence.
Number 1088
REPRESENTATIVE GRUENBERG [referring to HCS CSSB 309(STA)]
indicated that he agrees with DHSS's analysis of this issue, and
said he is prepared to offer an amendment that would delete, on
page 2, lines 12-13, the words: "and may not be used as
evidence in any criminal proceedings or civil proceedings." He
opined that inclusion of that language does not constitute good
policy, and added, "It seems to me that if somebody bites
somebody else, and they have to take a blood test as a result of
that, ... they can hardly complain if that evidence comes in and
is used in a legitimate judicial or administrative proceeding."
MS. PARKER [referring to HCS CSSB 309(STA)] responded:
The reason that we actually prefer it to be this way
is, we think that there will be more problems with the
blood test that we have done, by the Department of
Corrections, where ... the correctional officer has
asked that the sample be taken for medical purposes;
we would rather have it done again by their own doctor
and to have it done so [that] there is a chain of
evidence with that if it's going to be used in a court
proceeding.
MS. PARKER, in response to a comment, said that the DOC has no
objection to the collection of the blood; rather, its concern
centers on the fact that once the DOC collects it and stores it,
questions may arise regarding the validity of the sample. She
added, "We would prefer that if it's going to be used in a court
proceeding, that the blood be drawn independently of us."
REPRESENTATIVE GRUENBERG indicated that his concern is now
satisfied. He then directed attention to another of Mr. Bruce's
suggested changes [to the original version of the bill] that
read as follows [original punctuation provided]:
Page 2, Line 25 indicates that the facility "must
first attempt to get existing test results under this
subsection before taking any steps to obtain a blood
sample or to test.[sic]" This seems unnecessary, as
previous test results are most likely irrelevant -
current test results are what's needed. And, even
current test results could be irrelevant, given that a
person could still be infected with HIV, for example,
and the test would not show it right away. At a
minimum, there should be a timeframe associated with
the prior test result.
Number 1240
REPRESENTATIVE GRUENBERG [referring to HCS CSSB 309(STA)] called
the forgoing suggestion a well-taken point, and said he is
considering offering an amendment that would delete from page 2,
lines 24-26, the words: "The department must first attempt to
get existing test results under this subsection before taking
any steps to obtain a blood sample or to test for bloodborne
pathogens.".
MR. OLSON suggested that the DOC's medical director could
address the issue of relevancy of test results.
REPRESENTATIVE SAMUELS said he would hate to force the DOC to do
a search for existing test results if those results can't be
used anyway because they are found to be too old.
CHAIR McGUIRE indicated that she wanted to hear from the DOC's
medical director.
REPRESENTATIVE GRUENBERG mentioned that he also wanted to
address the rest of Mr. Bruce's suggested changes [to the
original version of the bill].
REPRESENTATIVE GARA, turning to Representative Gruenberg's
concern regarding third parties and HIPAA and OSHA regulations,
offered his belief that if a correctional officer is bitten, for
example, and then requests that the prisoner get tested, the
correctional officer can then share the results of that test
with his/her spouse.
REPRESENTATIVE GRUENBERG pointed out, however, that the
correctional officer, for whatever reason, may not share that
information with his/her spouse; therefore, he said he would
like to see something inserted into the bill that would ensure
that needed information is relayed to the spouse and his/her
physician.
Number 1449
CHAIR McGUIRE announced that SB 309 would be set aside. [SB 309
was heard again later in this same meeting.]
^CONFIRMATION HEARING
^Board of Governors of the Alaska Bar
Number 1457
CHAIR McGUIRE announced that the committee would next consider
the appointment of Joseph N. Faulhaber to the Board of Governors
of the Alaska Bar.
Number 1471
JOSEPH N. FAULHABER, Appointee, Board of Governors of the Alaska
Bar, in response to the question of why he wished to serve on
the Board of Governors of the Alaska Bar, relayed that he has
already served over seven years, and that he'd initially become
involved with the Board of Governors of the Alaska Bar because
he'd "had a cause," a desire, stemming from a frivolous lawsuit
filed against him, to see changes in the Alaska Rules of Civil
Procedure. He added, "At any rate, I guess I sort of became
converted and infatuated with the legal process ..., so I've
enjoyed it and I'd like to think I've contributed something."
He shared his belief that the members of the Board of Governors
of the Alaska Bar and its staff are some of the finest people
he's met, adding that he has enjoyed working with them.
REPRESENTATIVE GRUENBERG asked Mr. Faulhaber whether he feels
that there should be mandatory continuing legal education (CLE).
[Chair McGuire turned the gavel over to Vice Chair Anderson.]
MR. FAULHABER mentioned that several years ago, he and other
members of the Board of Governors of the Alaska Bar were
responsible for [instituting the continuing legal education
program].
REPRESENTATIVE GRUENBERG said he strongly supports continuing
legal education.
MR. FAULHABER said he believes that the public expects lawyers
to have continuing legal education, and that the public has a
right to demand a given level of expertise. He noted, however,
that the current continuing legal education program is voluntary
due to [a ruling by] the Alaska Supreme Court.
REPRESENTATIVE GRUENBERG posited that many members of the Alaska
Bar support continuing legal education.
Number 1683
MR. FAULHABER, on the issue of "Bar dues," relayed:
The cost of the Bar can be paid for by yesterday's
lawyers, today's lawyers, or tomorrow's lawyers. ...
We inherited an aggressive dues structure that was
meant to build a fund and then kind of use it until it
diminishes as costs increase due [to] inflation.
Well, I would make the argument that in a mandatory
Bar, the Board of Governors should, first of all,
determine that all the services are necessary and that
we're meeting our mission statement and that we're
doing it ... in a fiscally responsible manner.
Second, you take what it costs and you divide it by
the number of members, and you have a breakeven budget
every year. And then I guess the third point that I
would make is, it's not the end of the world that we
do have some money in the bank, because, if you've got
less than one year's costs in the bank, I don't think
that means that you're too fat.
[Vice Chair Anderson returned the gavel to Chair McGuire.]
REPRESENTATIVE GRUENBERG said he agrees.
REPRESENTATIVE GARA offered his understanding that Alaska's Bar
dues are the highest in the country.
MR. FAULHABER said he did not see that argument as relevant; if
an organization starts out with "a zero-based budget" every year
and wants to accomplish its mission statement, then what it
costs to do that is what it costs.
REPRESENTATIVE GARA opined that the high rate of Bar dues is
relevant, and said his concern centers on whether the Board of
Governors of the Alaska Bar is operating as efficiently as
possible, and whether such high Bar dues are really necessary.
MR. FAULHABER said that during the budget process this year, the
Board of Governors of the Alaska Bar was brutal in its
examination of the budget, and that he is satisfied that there
didn't seem to be any waste to cut.
Number 1944
REPRESENTATIVE GARA offered the suggestion that eliminating the
quarterly newspaper the Board of Governors of the Alaska Bar
puts out or allowing members to stop receiving it would be one
place to cut expenses, surmising that about $50 of every
member's Bar dues goes towards publishing and distributing that
newsletter. After mentioning that he is no longer an active
member of the Bar because for a while he only did volunteer work
and didn't want to pay $600 a year in Bar dues to continue that
practice, he said he has approached the "Bar Association" about
providing an exemption from Bar dues to lawyers who only do
volunteer work, but was told, "No." Now, he relayed, as an
inactive member he only pays $100 a year and he is not
regulated. All of these points, he remarked, lead him to
believe that perhaps the Board of Governors of the Alaska Bar is
not being run as efficiently as possible.
MR. FAULHABER said that he used to have similar thoughts about
the aforementioned newspaper, The Alaska Bar Rag, but after an
investigation of the matter, came to the conclusion that it "was
run cheap." Because the Board of Governors of the Alaska Bar is
required to publish changes in Bar rules as well as publish "a
number of other things," continuing to publish and distribute
The Alaska Bar Rag is probably the cheapest way to go about it.
He remarked, however, that perhaps looking into an electronic
format for those required items might prove to be cheaper and
more efficient, and offered to research that issue. He then
asked Representative Gara how long ago he'd raised the issue of
eliminating or reducing fees for those who only do pro bono
work.
REPRESENTATIVE GARA offered his recollection that he'd
approached the Alaska Bar Association with this issue in 2001-
2002. He elaborated: The response was that you had to show
that you were doing something like 40 hours a month of free
work, ... and frankly all I was doing was about 5 hours a month,
... so I didn't meet the time threshold."
MR. FAULHABER offered his understanding that currently, if
someone only does pro bono work and does it through Alaska Legal
Services, the membership is either free or Bar dues have been
reduced considerably. He said he would research that issue
further and inform the committee of his findings.
Number 2103
CHAIR McGUIRE said that one of her concerns centers on the fact
that when people get out of law school they are often short of
money and have no income but are still required to pay to take
the Bar exam, which, she relayed, is assessed a very high fee,
by far one of the highest in the nation surpassing even the New
York Bar exam fee. She asked Mr. Faulhaber to consider looking
into ways in which the costs of and for the Bar exam could be
reduced, and to particularly keep in mind those with limited
resources who are fresh out of law school. She added that she
thinks the current Bar dues are too high and that she has heard
similar thoughts from other practicing attorneys.
MR. FAULHABER responded:
I guess the question I would ask [is], ... who should
pay for the costs? The charges for the Bar exam [are]
cost-driven, so it's not a thing that we make money
on. So the question is, would you be willing, as a
sitting attorney, as a member, to subsidize the Bar
exam for new lawyers or new [want-to-be] lawyers? ...
If the membership wanted that, I probably wouldn't
have a problem with it, but in my heart of hearts I
think that any time you can actually nail down the
cost of a service and pass it on to the recipient,
it's probably a way (indisc.).
CHAIR McGUIRE pointed out, however, that currently the Bar
associations in all other states, even small states like
Wyoming, find ways to "make it work more efficiently" and keep
costs down. She reiterated her request for the Board of
Governors of the Alaska Bar to look into ways of reducing the
cost of administering the Bar exam. For example, holding the
Bar exam at a cheap or donated location, rather than holding it
at the Egan Center; or shorting the Bar exam to two days, rather
than keeping it at two and a half days; or focusing on
"standardization," rather than subjective essay questions. She
remarked that for people fresh out of law school, having to
contemplate spending [nearly] $1,000 to take the Bar exam can be
rather daunting. Perhaps having an external audit conducted for
the purpose looking at ways to reduce the costs of and for the
Bar exam might be in order, she suggested.
REPRESENTATIVE ANDERSON added that if a person fails the Bar
exam and then waits three years to retake it, he thinks it is
unfair to charge him/her the full amount; instead, the fee
should remain the same as it is for those who retake it right
away. The aforementioned would be one way to contain the cost
of taking the Bar exam.
REPRESENTATIVE GRUENBERG suggested allowing the Bar exam fee to
be paid over time.
TAPE 04-71, SIDE B
Number 2369
MR. FAULHABER, in response to questions, remarked that the cost
of taking the Bar exam is "$800-plus."
REPRESENTATIVE GRUENBERG suggested allowing that fee to be paid
in two years.
MR. FAULHABER relayed that in the past, he has been a proponent
of accepting payment via credit card.
REPRESENTATIVE GRUENBERG pointed out, however, that credit card
interest can be quite high. On a different issue, he remarked
that he and others whom he knows like receiving The Alaska Bar
Rag.
REPRESENTATIVE OGG declared a possible conflict in that he is an
active member of the Alaska Bar. He said he would like to see
Bar dues lowered for those who don't practice in the large urban
areas of the state. He asked about the possibility of allowing
sitting legislators to obtain CLE credit for their legislative
service to the state.
MR. FAULHABER said he would propose that suggestion to the Board
of Governors of the Alaska Bar.
REPRESENTATIVE GRUENBERG suggested also allowing legislative
staff to obtain CLE credit.
MR. FAULHABER indicated that that makes sense and would propose
that suggestion as well.
REPRESENTATIVE OGG said he appreciates Mr. Faulhaber's
willingness to serve.
Number 2162
REPRESENTATIVE GARA said he feels that Bar dues should be waived
or reduced for those who only practice law on a volunteer basis,
even if the volunteer work is not done through Alaska Legal
Services. He noted that he has already made suggestions to the
Alaska Bar Association about changing aspects of the Bar Exam,
and opined that the Alaska Bar Association was not as responsive
to suggestions for change as it ought to have been, that it
seemed to go out of its way to resist change. One of the things
he suggested to the Alaska Bar Association in the past was that
on the standardized portion of the test, if it is taken and
passed elsewhere in the country, it should not need to be
retaken when a person then takes the Alaska Bar exam, opining
that to require such is a waste of time and money; the response
to this suggestion was, "No." In fact, he was told that no
other states do that, and yet his later research found that such
was not true. He asked Mr. Faulhaber to raise this issue with
the Board of Governors of the Alaska Bar.
MR. FAULHABER indicated that he would do some research
regarding: retaking the standardized portion of the Bar exam;
the fee that's charged for retaking the Bar exam; waiving or
reducing Bar dues for those who only do pro bono work; and
allowing CLE credits for legislative service.
CHAIR McGUIRE reminded Mr. Faulhaber to also research the issues
of reducing the cost of and for the Bar exam - specifically, if
ways are found to reduce the cost of administering the exam,
that savings should then be passed on to those taking the exam -
and of allowing the Bar exam fee to paid over time in hardship
cases. She remarked that the current fee for taking the Alaska
Bar exam is twice that of the Bar exam in some other states, and
opined that that is unreasonable.
MR. FAULHABER asked whether the committee would like to see the
Bar exam fees lowered even if it means requiring the current
membership to subsidize the cost.
CHAIR McGUIRE said that is not her intent, and relayed that
other committee members are indicating that they are not in
favor of that option either. Instead, efficiencies should be
found to reduce the cost of administering the Bar exam and then
those savings should be passed on to those that take it.
REPRESENTATIVE GARA mentioned that he is not in favor of
allowing CLE credits to be obtained for legislative service,
because practicing lawyers do a lot more legal research than
legislators and legislative staff and yet do not get CLE credit
for that work. In conclusion, he asked Mr. Faulhaber to look
into the issue of making the Alaska Bar Association a little
more flexible and responsive.
CHAIR McGUIRE recapped for Mr. Faulhaber the issues the
committee wanted the Board of Governors of the Alaska Bar to
consider, and again suggested perhaps having an outside audit
conducted to look for efficiencies.
MR. FAULHABER agreed to bring those issues to the Board of
Governors of the Alaska Bar.
Number 1779
REPRESENTATIVE ANDERSON made a motion to advance from committee
the nomination of Joseph N. Faulhaber as appointee to the Board
of Governors of the Alaska Bar. There being no objection, the
confirmation was advanced from the House Judiciary Standing
Committee.
REPRESENTATIVE ANDERSON reminded members that signing the
reports regarding appointments to boards and commissions in no
way reflects individual members' approval or disapproval of the
appointees, and that the nominations are merely forwarded to the
full legislature for confirmation or rejection.
CHAIR McGUIRE thanked Mr. Faulhaber for his willingness to
serve.
SB 309 - BLOOD PATHOGENS TESTING OF PRISONERS
Number 1748
CHAIR McGUIRE announced that the committee would resume the
hearing on SB 309, CS FOR SENATE BILL NO. 309(JUD) am, "An Act
relating to testing the blood of prisoners and those in custody
for bloodborne pathogens." [Before the committee was HCS CSSB
309(STA).]
Number 1731
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner,
Department of Corrections (DOC), remarked that SB 309 merely
codifies the DOC's current policies regarding "protection from,
documentation of, and response to occupational exposure," and,
thus, there is a zero fiscal note. She relayed that most
prisoners volunteer to give a blood sample or notify the DOC
that they have some kind of condition. When a prisoner does not
volunteer, the DOC is able to get a court order reasonably
quickly and then draw the sample.
MS. PARKER said that the problem that SB 309 proposes to fix is
not a huge problem; rather, the correctional office involved in
the incident that generated this legislation simply felt that
the normal process wasn't quick enough and that he wasn't taken
care of. She mentioned that the DOC's medical director is
currently out of state, but had noted in his analysis of SB 309
that the DOC is already doing what is outlined in the bill.
Referring to a couple of the suggested changes [to the original
bill] offered by Doug Bruce - Director, Central Office, Division
of Public Health, Department of Health and Social Services
(DHSS) - [text previously provided in the first portion of
today's minutes on SB 309], she said:
The first one about evidence, I think we've discussed
that and why we would prefer that not be changed. ...
As far as testing and looking at results that exist,
we don't store the blood that's been drawn previously,
but we do have a record of the results, and so the
[DOC doesn't] really have a preference on that,
whether it's a new blood sample or [not] .... The
reason we would like to look at existing results is
because it may be faster to find out when someone does
have some kind of a bloodborne pathogen. If you go
and look at a result and they had hepatitis or
[acquired immunodeficiency syndrome (AIDS)] three
months ago, they probably still have it.
Now, it's not going to tell you what they have right
now; even a test right now may not tell you what they
have right now. So not everything is going to be
guaranteed even if you immediately draw blood, because
some people will have something that will not show up
in that test yet but it may two months from now. So
... nothing is guaranteed; what we do is try to
provide the best protection we can. Now, if there was
a result where nothing was shown six months ago or a
year ago, the officer can still request, "I want blood
drawn now - I've ... had [an] exposure, my physician
thinks it's necessary to draw, this blood sample is
too old, the results are too old - I want to have a
new blood sample to make sure I have not had an
exposure." And we feel that that's covered. If there
are concerns, then we address that, but that's
basically what we're doing right now, in practice,
without this [proposed] statute.
Number 1565
REPRESENTATIVE GRUENBERG said his concern is that the language
on page 2, lines 24-26 - The department must first attempt to
get existing test results under this subsection before taking
any steps to obtain a blood sample or to test for bloodborne
pathogens - seems to [require] the DOC to get existing test
results before taking a new sample, and he did not want the DOC
impeded in taking a new sample; therefore, that sentence ought
to be removed.
MS. PARKER reiterated that the DOC doesn't have an opinion on
that language either way; if it is the will of the committee
that a new sample be drawn immediately, that would be fine. She
then turned attention to another of Mr. Bruce's suggested
changes [to the original version of the bill] that read as
follows [original punctuation provided]:
On Page 5, Line 14, providing test results to the
officer's physician without specific identifying
information is really not a true safeguard.
Obviously, the physician will communicate the results
to the officer who will then know the results of the
test and [whom] the test is associated with.
MS. PARKER [referring to HCS CSSB 309(STA)] said:
I don't think that there is anything that we can do
about that. I believe - and I will get this answer
definitively - ... that we cannot release ... an
officer's medical records without their consent;
unless the other party gets a court order to release
that information, we can't even release medical
information on offenders or inmates. It's very
restrictive on what we can do with any test results or
medical information disclosed to anyone, even people
who are employed in the facility. So I think there
are restrictions there that are in federal law that we
simple have to abide by.
Number 1449
REPRESENTATIVE GRUENBERG [referring to HCS CSSB 309(STA)]
offered the following about page 5, proposed subsections (b),
lines 9-11, and (c), lines 12-16:
Many of these prisoners are very litigious and will
look at anything possible to goof up the system ... by
bringing all kinds of lawsuits, since they have a lot
of time on their hands. ... This seems to invite some
lawsuits. [For proposed subsection (c)], I guess
maybe I didn't understand what [Mr. Bruce meant]; I
was more looking at [proposed subsection (b)], where
you invite the prisoner to bring a lawsuit, almost.
It looks to me like ... we might want to tighten that
down. If somebody is bringing a lawsuit for good
cause -- I don't know, maybe I'm speaking too soon.
It says releases - maybe you want to put "knowingly"
or "recklessly" or something, because you could have
just an inadvertent release.
REPRESENTATIVE SAMUELS commented: "'Malice'."
Number 1357
KURT OLSON, Staff to Senator Tom Wagoner, Alaska State
Legislature, sponsor, [referring to HCS CSSB 309(STA)] offered
his belief that the wording [in proposed subsections (b) and
(c)] has been tested in other states, particularly Wisconsin,
"or at least modeled after that, and we didn't feel like we had
to reinvent the wheel on (indisc.)." In response to a question,
he said he did not know whether federal language contained
anything pertaining to civil action for the unauthorized
releasing of information.
CHAIR McGUIRE indicated that at a minimum, there ought to be a
mental intent.
REPRESENTATIVE GRUENBERG referred to language on page 5, lines
15-16, and noted that the standard specified is "a good faith
effort" to comply with the statutes. However, no such standard
is currently on page 5, lines 9-11.
REPRESENTATIVE OGG opined that SB 309 is a fairly well crafted
bill. Referring to federal law, he offered his belief that it
requires testing of anyone convicted and sentenced for a period
of six months or more. He remarked that this requirement seems
like a good health and safety measure, and asked whether Alaska
could adopt something similar.
MS. PARKER offered her belief that the DOC is not currently
testing every prisoner for the presence of bloodborne pathogens,
one reason being that it would be very expensive to test every
prisoner. However, if there is "any indication" or medical
reason to test, then a test is done.
REPRESENTATIVE OGG opined that testing all prisoners could save
money in the long run because, if it is already known what
bloodborne pathogens any given prisoner has, "you could isolate
that somehow."
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 309.
REPRESENTATIVE GRUENBERG asked whether the sponsor has any
objection to having the words, "The department must first
attempt to get existing test results under this subsection
before taking any steps to obtain a blood sample or to test for
bloodborne pathogens." removed from page 2, lines 24-26. He
suggested that such a change would give the DOC the discretion
to "move quickly."
Number 1088
SENATOR TOM WAGONER, Alaska State Legislature, sponsor, said
that is a good point, but added that much would depend on how
recently an existing test result is.
REPRESENTATIVE GRUENBERG remarked, "This just gives them the
discretion to do it or not."
CHAIR McGUIRE offered her understanding that removing that
language doesn't mean that the DOC won't use existing test
results.
Number 1032
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
delete from page 2, lines 24-26, the words, "The department must
first attempt to get existing test results under this subsection
before taking any steps to obtain a blood sample or to test for
bloodborne pathogens.". There being no objection, Amendment 1
was adopted.
Number 1017
REPRESENTATIVE GRUENBERG referred to page 5, line 9-11, and
indicated that he wanted to offer a conceptual amendment that
would alter the language so that it would read, in part,
something along the lines of: "A prisoner may bring a civil
action against a person who releases the prisoner's name or
other uniquely identifying information with the test results or
otherwise releases the test results if there is no good faith
effort made to comply with AS 18.15.400 - 18.15.450."
REPRESENTATIVE SAMUELS suggested instead that they just add
something like, "knowingly and with malice", after "who" on line
9, page 5.
REPRESENTATIVE GRUENBERG indicated that he did not want the
provision to include a mental state of "malice", but that
perhaps adding "knowingly" would be sufficient. Currently, he
opined, it seems to imply an absolute - it doesn't even have to
require a negligence standard."
CHAIR McGUIRE remarked, "Strict liability, almost."
REPRESENTATIVE GARA said that adding "knowingly" makes sense.
REPRESENTATIVE GRUENBERG suggested adding, "in knowing violation
of".
CHAIR McGUIRE suggested, "knowingly".
REPRESENTATIVE GRUENBERG suggested, "who knowingly violates".
He added, "That's conceptual," and posited that with such a
change, a civil action may be brought against a person who
knowingly violates the provisions of the bill. [This version of
the suggested change became known as Conceptual Amendment 2, and
was treated as moved.]
SENATOR WAGONER indicated that such a change is fine with him.
REPRESENTATIVE GRUENBERG, in response to comments, said: "The
Act itself says ... who you can release the information to, and
what I want to prevent is a correctional official getting sued
because somebody technically violates this in non-knowing way."
CHAIR McGUIRE offered her belief that [Conceptual Amendment 2]
"does get us there." She added, "We'll leave it conceptual for
the drafter, but [have it contain] the mental intent of
knowingly violates it and [have it be] as tight as you can make
it so that the person [who] innocently releases it isn't
punished."
Number 0781
CHAIR McGUIRE asked whether there were any objections to
[Conceptual] Amendment 2. There being none, Conceptual
Amendment 2 was adopted.
REPRESENTATIVE GRUENBERG turned attention to page 2, lines 12-
13, which says in part, "and may not be used as evidence in any
criminal proceedings or civil proceedings." He said he is
wondering "if there would be any circumstance where you, for
some reason, would have to use a blood sample." For
identification purposes after a fire, for example, or if a
prisoner escapes.
SENATOR WAGONER opined that in extenuating circumstances, a
court order might be the route to take.
REPRESENTATIVE GRUENBERG asked whether the aforementioned
language would prevent a court order from being obtained.
REPRESENTATIVE SAMUELS pointed out, however, that the
aforementioned language refers to use in civil and criminal
proceedings and thus would not apply in instances of identifying
someone.
REPRESENTATIVE GRUENBERG said he just wanted to be sure that
there isn't some circumstance wherein those test results need to
be used.
CHAIR McGUIRE asked whether the DOC has any objection to
deleting the aforementioned language.
MS. PARKER said the DOC does not, but added: "The problem is,
is that we have been warned that it will cause undue challenges
and litigation if it's used in criminal or civil proceedings;
that's been the experience in other jurisdictions, and this is
really for the protection of the inmates ...."
REPRESENTATIVE GRUENBERG said he is considering this issue from
the prosecution's point of view and wants to be careful that
they are not, in some manner, causing the DOC some harm. In
response to comments, he added, "It might be important to be
able to establish the fact of testing, to prove that you had
tested and ... [that] the results had come back negative [and]
so there was no need to treat."
SENATOR WAGONER opined that this latter point is moving away
from the purpose of the bill. "There's been a lot of work go
into this and I think we're on pretty firm ground," he
concluded.
Number 0432
REPRESENTATIVE SAMUELS moved to report HCS CSSB 309(STA), as
amended, out of committee with individual recommendations and
the accompanying zero fiscal note. There being no objection,
HCS CSSB 309(JUD) was reported from the House Judiciary Standing
Committee.
HB 551 - DRUG FELONY DISQUALIFIES TEACHER
Number 0411
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 551, "An Act relating to the issuance of teacher
certificates to and revocation of teacher certificates of
persons convicted of felony drug offenses and to the issuance of
limited teacher certificates to persons convicted of certain
crimes involving a minor and felony drug offenses."
CHAIR McGUIRE, speaking as Chair of the House Judiciary Standing
Committee, sponsor of HB 551, surmised that the committee would
be amending the bill such that the new language being inserted
[on page 1] would only reference misconduct involving a
controlled substance in the first degree - AS 11.71.010.
REPRESENTATIVE GARA indicated that he would also like to try to
keep in some of those second, third, and fourth degree crimes by
defining them; for example, keeping in and defining the crimes
involving a school zone.
CHAIR McGUIRE suggested that such a change could be done
conceptually.
Number 0318
RYAN MAKINSTER, Staff to Representative Lesil McGuire, Alaska
State Legislature, presented HB 551 on behalf of Representative
McGuire, Chair, House Judiciary Standing Committee, sponsor of
HB 551. He said that recent news articles have highlighted the
fact that there have been a few teachers who have been convicted
of drug convictions. And although there is no desire to have a
person's youthful mistakes keep him/her from pursuing the goal
of being a teacher, or to punish great teachers for youthful
mistakes, HB 551 does focus on the issue of felony drug
convictions. He acknowledged that members have a desire to
alter the bill such that it will focus specifically on first
degree crimes involving controlled substances, which, he
surmised, involve activities at a "criminal enterprise" level or
manufacturing activities, or activities with the intent to
distribute.
MR. MAKINSTER relayed that HB 551 does not pertain to "personal
use or private possession." He posited that Representative Gara
has the right idea in wanting to retain reference to some second
and third degree crimes involving controlled substances because
there is specific language in those statutes that addresses drug
offenses [occurring on or near] school zones and [involving
minors].
CHAIR McGUIRE referred to Amendment 1 and said she liked it;
Amendment 1, a handwritten amendment with handwritten
corrections, read [original punctuation provided]:
At page 1 line 10
delete
"- 11.71.040"
At Page 1 line 11 after "subsection, [sic]" insert "or
under AS 11.71.020 - .040 if the conviction is for
Distribution, or for possession or manufacturing with
the intent to distribute, or in violation of AS
11.71.030(a)(3)(A) or AS 11.71.030[sic](a)(4).
Number 0201
REPRESENTATIVE GARA offered to explain Amendment 1. He said:
Ideally what we want to do is get at people who are
selling drugs, people who are manufacturing or
possessing with the intent to sell drugs, and the
school zone things also. ... So, we can clearly do
[crimes in the] first degree, we can clearly do the
school zone things because those statutory provisions
are very identifiable, [but] where my proposed
amendment gets a little vague is [where] I also add
any of the second through fourth degree [crimes] that
involve possession or manufacturing with the intent to
distribute. [That's because] distribute could be
sharing with the person next to you - distribute isn't
defined as sales.
And so we could be a little overbroad and say
manufacture or possess with the intent to distribute,
but we would, arguably, possibly, be getting into
people who are sharing in a room with a bunch of
friends when they're 19 years old, because that is
distribute under the statute. So then I thought about
saying distribute with the intent to sell, but the
truth is, the way the criminal process works, when you
get convicted of a crime - let's say you get convicted
of [a] second or third degree crime ... - the records
will show you were convicted under that statute [but]
it's going to be very hard to figure out what the
conduct was that you were convicted of. We won't know
whether you were trying to sell or not sell.
And so there's really no perfect answer, to trying to
answer those questions, for those people who do second
or third or fourth degree crimes, whether they were
trying to make money off of it or not. So we could be
under broad and just be safe and do first degree
[crimes] and then the school zone violations and the
school bus violations, or we could try [to] figure out
a way to do this ... thing about second and third and
fourth degree manufacturer and distributions, but
we'll never know whether those were sharing
distributions or sales distributions. ... I don't
really know what to do about those. My sense is,
leave them out, we flag it for the school district,
and the school district doesn't hire them ... - but
maybe they do. ... I don't have the perfect answer.
TAPE 04-72, SIDE A
Number 0001
MR. MAKINSTER, in response to a question, said that a person's
teaching certificate could be revoked if he/she is [convicted],
whether for a current offense or a past offense that has come to
light; being convicted could also prevent someone from obtaining
a teaching certificate.
REPRESENTATIVE SAMUELS said he didn't think that a person should
necessarily have something he/she did when younger held against
him/her; however, if one is already a teacher and is convicted
of selling a controlled substance, he/she should lose his/her
job.
REPRESENTATIVE GARA responded:
I think that's the hard part [about] addressing [this
issue]; you do want to get all the people who sell,
but this statute's not defined in terms of [selling].
The first degree [crime] ... is defined in terms of
[selling] - so hard drugs, if you sell them, you're
disqualified - but in the second and third and fourth
degree, the crime is for distribution. And
distribution [wouldn't have to] be sales, it could be
passing [a controlled substance] around a room. ... I
think also the second, third, and fourth degrees are
different drugs, [and] I don't know the difference
between any of them [just by] looking at the statute.
I can't tell you ... what a [schedule IA, IIA, or
IIIA] drug is. ... This is one of those areas where
you either get overbroad and bring in too many things,
or don't bring in enough. I don't know how to bring
in exactly the number, unless we said at the end, for
purposes of this bill, [that] distribution is only
distribution for financial gain. ... I think that's
what we would want, but I don't think we're going to
be able to know [just] by looking at the conviction
whether that was a distribution for financial gain -
we'll get a record [showing that a person was]
convicted of AS 11.71.020, and we won't know what the
conviction was for.
REPRESENTATIVE SAMUELS reiterated his belief that should a
teacher be convicted of selling or distributing [a controlled
substance] to a minor, that teacher should lose his/her teaching
certificate.
Number 0312
REPRESENTATIVE GARA offered his belief that such behavior is
covered under the statute pertaining to misconduct involving a
controlled substance in the first degree. In response to a
question, he noted that the bill includes the language, "or a
law or ordinance in another jurisdiction with elements similar
to an offense described in this subsection", and that this is
not a new provision. "It's done in the criminal law now; ... in
various circumstances, something that you do outside, depending
on the elements, can count towards a higher sentence or ...
extradition," he added.
REPRESENTATIVE OGG indicated that he is inclined to have the
bill pertain to all felons [who are convicted of this type of
crime], and offered his belief that someone who just shares a
small amount of a controlled substance, as opposed to selling
it, would be a misdemeanant, not a felon.
REPRESENTATIVE SAMUELS asked where the line would be drawn
regarding the amounts being distributed.
CHAIR McGUIRE noted that the bill currently applies to all
felons who are convicted of this type of crime, but that
testimony in the House Special Committee on Education indicated
that there would be more comfort with the bill if it only
applied to first and second degree convictions or even just
first degree convictions.
REPRESENTATIVE OGG noted that the chair of the Professional
Teaching Practices Commission (PTPC) is present to testify.
CHAIR McGUIRE indicated a preference for narrowing the scope of
the bill before taking public testimony. She noted that AS
11.71.030(a)(2) also pertains to delivering a controlled
substance to a minor, and asked Representative Gara whether he
intended to include a reference to that provision in Amendment
1.
REPRESENTATIVE GARA posited that they probably ought to add that
reference.
CHAIR McGUIRE noted that crimes involving marijuana are
referenced in the statute pertaining to misconduct in the fourth
degree - AS 11.71.040; that there is a court opinion that
affirms a person's right, under the Alaska State Constitution's
privacy clause, to grow marijuana for personal use and smoke it
in the privacy of one's own home; and that with regard to
misconduct involving marijuana, the bill pertains only to felony
level crimes.
REPRESENTATIVE GARA recommended either having the bill pertain
to crimes of misconduct involving a controlled substance in the
first degree and those connected with schools and minors, or
having the bill, as proposed via Amendment 1, pertain to all
crimes that are "possession or distribution in amounts that are
reflective of the intent to distribute" but know that it might
be difficult to determine such by just looking at what level of
crime a person is convicted of. With the latter option, he
surmised that they would have to rely on school districts to
screen teachers and prospective teachers appropriately.
Number 0759
REPRESENTATIVE GARA made a motion to amend Amendment 1 such that
it includes at the end: ", or AS 11.71.030(a)(2)". There being
no objection, Amendment 1 was amended.
Number 0776
REPRESENTATIVE GARA made a motion to adopt Amendment 1 [as
amended].
REPRESENTATIVE OGG asked why AS 11.71.030(a)(3)(B), which
pertains to possession on a school bus, isn't included in
Amendment 1 [as amended].
REPRESENTATIVE GARA said leaving it out is a mistake; therefore,
Amendment 1 [as amended] should include reference to AS
11.71.030(a)(2) and AS 11.71.030(a)(3).
CHAIR McGUIRE suggested that Amendment 1 [as amended] be
withdrawn and reoffered, as a new Amendment 1, to that effect.
REPRESENTATIVE OGG noted that currently there is no AS
11.71.030(a)(4).
REPRESENTATIVE GARA acknowledged that error and explained that
"AS 11.71.030(a)(4)" should instead read "AS 11.71.040(a)(4)".
REPRESENTATIVE GRUENBERG asked whether just saying "AS
11.71.040(a)(2)-(4) would be sufficient.
REPRESENTATIVE GARA said no.
CHAIR McGUIRE concurred, and pointed out that the intent is to
have reference to AS 11.71.030(a)(2) and (3) and AS
11.71.040(a)(4); therefore, Amendment 1 should read:
At page 1 line 10
delete
"- 11.71.040"
At Page 1 line 11 after "subsection, [sic]" insert "or
under AS 11.71.020 - .040 if the conviction is for
Distribution, or for possession or manufacturing with
the intent to distribute, or in violation of AS
11.71.030(a)(3), or AS 11.71.030(a)(2), or AS
11.71.040(a)(4).
Number 1050
CHAIR McGUIRE asked whether there were any objections to
adopting the foregoing as a new Amendment 1. There being none,
Amendment 1 was adopted.
Number 1066
LARRY WIGET, Executive Director, Public Affairs, Anchorage
School District (ASD), noted that members should have in their
possession the Anchorage School District's position statement
regarding HB 551. He went on to say:
Currently the law prohibits the [Department of
Education and Early Development (DEED)] from issuing a
teaching certificate to a person who has been
convicted of a crime - or an attempt, solicitation, or
conspiracy to commit a crime - involving a minor. The
proposed revisions to HB 551 would not require that a
crime had any connection (indisc. - microphone
interference) that there was a nexus to the classroom
or teaching. Drug convictions have [been] singled out
from other felonies [into] class by themselves without
any ability to look at the totality [of] individual
situations. ...
I believe it would be the preference of the ASD to
follow more along the guidelines that [are being]
suggested in a letter that I just received this
afternoon ... from the Professional Teaching Practices
Commission, in which the commission has asked its
executive director to draft a regulation that would
expressly include felony level crimes involving
possession of a controlled substance to the list of
crimes of moral turpitude. This regulation provides
guides to school districts in making employment
decisions regarding (indisc.) The commission believes
that this will address the concern that prompted the
proposed amendment to HB 551 - that's basically our
position ....
Number 1165
BONNIE BARBER, Executive Director, Professional Teaching
Practices Commission (PTPC), clarified that the PTPC currently
views possession of a controlled substance for the purpose
distribution as a crime of moral turpitude, and noted that the
PTPC has revoked the teaching certificate of someone convicted
of such a crime. However, although this is the PTPC's current
practice, the current regulation does not specifically include
such a crime in its list of what constitutes moral turpitude.
Because of this lack, she relayed, the PTPC has asked her to
draft an amendment to add felony possession to the current
regulation pertaining to moral turpitude.
CHAIR McGUIRE indicated that the committee is focusing on a
statutory fix and would not be opposed to the PTPC also
addressing the issue via a change in regulations.
REPRESENTATIVE GARA concurred, adding, that the legislature
certainly has every intention of letting the PTPC decide that
there is additional conduct for which it will not hire a teacher
or for which it will terminate a teacher.
Number 1265
LAWRENCE LEE OLDAKER, Chair, Professional Teaching Practices
Commission (PTPC), after mentioning that he is a professor
emeritus at the University of Alaska Southeast, noted that he is
providing members with a formal written statement by the PTPC.
He went on to say that the PTPC opposes the [change proposed via
HB 551] because although the PTPC does not countenance felony
behavior involving controlled substances, the PTPC is capable of
handling such matters on an individual basis without making such
behavior something for which a person would automatically have
his/her teaching certificate revoked for life.
MR. OLDAKER, too, mentioned that the PTPC is considering
altering the current regulation regarding acts of moral
turpitude in order to bring it more in line with what is being
proposed via HB 551, and indicated that although the PTPC does
not condone felony behavior involving controlled substances, it
is willing to take into account that a person can change over
time and, thus, having a felony conviction for actions taken
when he/she is young might not necessarily be a sufficient
reason to revoke a teaching certificate for life.
CHAIR McGUIRE remarked that the comments from testifiers are
well taken, and that the committee is endeavoring to limit HB
551 so that it applies only to the most serious conduct.
MR. OLDAKER noted that since 1990 there have been five
revocations related to felony convictions involving a controlled
substance, and eight revocations related to other behavior. "So
we have taken ... effective steps," he opined.
CHAIR McGUIRE agreed, but added that as a matter of state
policy, she feels it is appropriate to include the proposed
change in statute while still allowing the PTPC the latitude to
address issues regarding behavior that constitutes moral
turpitude. "We're just trying to draw the line at those really
serious offenses and the ones that it sounds like you already
take action on anyway," she concluded.
MR. OLDAKER, in response to comments, clarified that the PTPC is
considering adding felony possession of a controlled substance
to the list of conduct that is considered moral turpitude.
REPRESENTATIVE GARA relayed that some members of the legislature
are reluctant to make possession, even felony possession, cause
for precluding someone from teaching later on in life.
MR. OLDAKER agreed to keep that in mind. At the request of
Representative Gruenberg, on an unrelated topic, Mr. Oldaker
mentioned some changes to the PTPC's rules of operation that
he'd like to see instituted.
Number 1737
REPRESENTATIVE GRUENBERG moved to report HB 551, as amended, out
of committee with individual recommendations and the
accompanying fiscal note. There being no objection, CSHB
551(JUD) was reported from the House Judiciary Standing
Committee.
HB 545 - STATE LEASE AND CONTRACT EXTENSIONS
Number 1750
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 545, "An Act relating to the extension under
the State Procurement Code of terms for leases for real estate
and certain terms for certain state contracts for goods and
services; and providing for an effective date." [Before the
committee was CSHB 545(L&C).]
Number 1765
VERN JONES, Chief Procurement Officer, Division of General
Services, Department of Administration (DOA), said that the
state's procurement code currently allows the state to negotiate
extensions of real estate leases for up to 10 years in exchange
for rent reductions. House Bill 545 would increase the state's
ability to negotiate lease extensions by changing the
requirement threshold from a 10-15 percent reduction in existing
lease rates to a 10 percent reduction in the current market
rate. Existing statutory restrictions on these negotiations
have hampered the state's ability to negotiate lease extensions,
he opined, and relayed that the increase in the real estate
market in Alaska combined with the way the state structures its
leases often makes it so that a 10-15 percent reduction in
existing lease rates is unattainable.
MR. JONES posited that tying the reduced rates to a percentage
below the current market is a more reasonable approach, adding,
"we believe [it] will allow us to negotiate successfully more
often, and the more frequently we're able to do that, the more
we can avoid the lengthy, costly re-procurement process, not to
mention the cost and disruption of moving large numbers of state
offices and state employees as well as the disruption to the
public." Referring to a chart, he said that a substantial part
of lease costs are for tenant improvements and upfront
construction. These costs are typically financed and amortized
by lessors over the initial term of a lease, and oftentimes the
lessor will offer the state dramatically lower priced lease
rates for renewal periods.
MR. JONES said that in those cases, at the end of initial lease
periods, there is already a reduced rate, and so attempting to
negotiate an additional 15 percent reduction as is required by
current law is often unachievable. He added that the DOA feels
that this bill would remedy that situation, would change that
requirement from a 10-15 percent reduction of the already
reduced rate to a 10 percent reduction of market rate, and
market rate, as defined in CSHB 545(L&C), would be established
either by an assessment of value or a real estate appraisal of
rental value.
MR. JONES, in response to a question, said that CSHB 545(L&C)
now contains a definition of market rate, stipulates a minimum
cost savings of 10 percent, and only applies to office space or
real estate leases.
Number 1932
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, close public testimony on HB 545.
REPRESENTATIVE GARA remarked:
The bill is fine. It just seems to me, whenever you
get in the procurement code, you end up having to
write down rules of logic instead of letting people
just exercise logic. And so the rule of logic we've
come up with is, if the state thinks that they'd
actually just save money by not moving, that's not
good enough unless they would save 10 percent. Is
that the way the bill reads? I mean, [do] you
actually have to save 10 percent or else you have to
move?
MR. JONES replied, "You would need to achieve a rental rate of
at least 10 percent below market value if you want to avoid
moving." If the bill passes, the state could negotiate a rental
rate that would be a guaranteed 10 percent below market value
and the state could avoid costly moving expenses. If the bill
doesn't pass, the state would have to pay moving expenses plus
possibly have to pay market rate at a new location. He opined
that passage of the bill is a tool that will make the state more
efficient and allow it to reduce costs.
REPRESENTATIVE GARA offered his belief that even if the state
can't achieve the minimum cost savings of 10 percent below
market value, it could still save something by not having to
move and go through the whole request for proposals (RFP)
process; therefore, perhaps the state should not limit itself to
a 10 percent minimum.
MR. JONES, in response, relayed that he agrees with
Representative Gara's point, adding, "If I could, I'd use my
discretion in every matter, but in the last committee it was
decided that ... 5 percent really wasn't enough to avoid the
open competitive process that would otherwise be there, so ...
it was increased to 10 percent." He noted that moving costs are
typically around "$1 a foot" and are not included in calculating
the minimum cost savings.
Number 2059
REPRESENTATIVE SAMUELS moved to report CSHB 545(L&C) out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSHB 545(L&C) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
Number 2062
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:30 p.m.
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