Legislature(1993 - 1994)
02/23/1994 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 23, 1994 1:15 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair Rep. Pete Kott Rep. Gail Phillips Rep. Joe Green Rep. Jim Nordlund (arrived 2:10 p.m.) MEMBERS ABSENT Rep. Cliff Davidson COMMITTEE CALENDAR *HB 505: "An Act making appropriations to and from the constitutional budget reserve fund under art. IX, sec. 17(c), Constitution of the State of Alaska, for operating and capital expenses of state government for fiscal year 1994; and providing for an effective date." MOVED OUT OF COMMITTEE *HB 442: "An Act relating to criminal justice information; providing procedural requirements for obtaining certain criminal justice information; and providing for an effective date." MOVED OUT OF COMMITTEE (* First public hearing.) WITNESS REGISTER SHELBY STASNEY, Director Office of Management & Budget Office of the Governor P.O. Box 110020 Juneau, AK 99811 POSITION STATEMENT: Testified in support of HB 505 JAMES L. BALDWIN Assistant Attorney General General Civil Section Department of Law P.O. Box 110300 Juneau, AK 99811 465-3600 POSITION STATEMENT: Testified in support of HB 505 DEAN GUANELI, Chief Assistant Attorney General Legal Services Section Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811 465-4336 POSITION STATEMENT: Testified in support of HB 442 CHIP THOMA 2 Marine Way, Suite 204 Juneau, AK 99801 POSITION STATEMENT: Testified in support of HB 442 DUNCAN FOWLER Ombudsman P.O. Box 113000 Juneau, AK 99811 465-4970 POSITION STATEMENT: Testified in support of HB 442 BILL COTTON Alaska Judicial Council 1029 W. 3rd St., No. 201 Anchorage, AK 99501 279-2526 POSITION STATEMENT: Testified in support of HB 442 KEN BISCHOFF, Director Division of Administrative Services Department of Public Safety P.O. Box 111200 Juneau, AK 465-4336 POSITION STATEMENT: Testified in support of HB 442 PREVIOUS ACTION BILL: HB 505 SHORT TITLE: APPROP: BUDGET RESERVE FUND TO GEN.FUND SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR JRN-DATE JRN-PG ACTION 02/16/94 2415 (H) READ THE FIRST TIME/REFERRAL(S) 02/16/94 2415 (H) JUDICIARY, FINANCE 02/16/94 2415 (H) GOVERNOR'S TRANSMITTAL LETTER 02/23/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HB 442 SHORT TITLE: CRIMINAL JUSTICE INFORMATION SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR JRN-DATE JRN-PG ACTION 02/04/94 2257 (H) READ THE FIRST TIME/REFERRAL(S) 02/04/94 2257 (H) JUDICIARY, FINANCE 02/04/94 2257 (H) -3 ZERO FNS (LAW, DHSS, DPS) 2/4/94 02/04/94 2257 (H) -FISCAL NOTE (CORR) 2/4/94 02/04/94 2257 (H) GOVERNOR'S TRANSMITTAL LETTER 02/23/94 (H) JUD AT 01:15 PM CAPITOL 120 ACTION NARRATIVE TAPE 94-28, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:25 p.m. on February 23, 1994. A quorum was present. CHAIRMAN PORTER announced that the committee would take up HB 505 first. CHAIRMAN PORTER welcomed SHELBY STASNEY to begin discussion of the bill. HB 505 - APPROP: BUDGET RESERVE FUND TO GEN.FUND CSHB 505(JUD): "An Act making appropriations to the constitutional budget reserve fund established under art. IX, sec. 17, Constitution of the State of Alaska; and providing for an effective date." Number 022 SHELBY STASNEY, Director, Office of Management & Budget (OMB), Office of the Governor, thanked CHAIRMAN PORTER for placing the bill on the committee's agenda so quickly and expressed appreciation for the opportunity to explain the bill and its reason for introduction. He stated: "House Bill 505 was introduced by the Governor as a result of the Superior Court decision and later the Supreme Court decision that concluded that certain monies that were received from informal conferences were deposited into the General Fund erroneously and should have been deposited into the Constitutional Budget Reserve Fund. The deposits, as all of you know, were made under an Attorney General's opinion, an opinion that was asked for in good faith and for good reason. An Attorney General's opinion that concluded to deposit the informal conference money into the Constitutional Budget Reserve Fund would be beyond what was envisioned by that constitutional amendment when it was passed by the voters of the state. And, as I'm sure you know, the Administration is bound by the Attorney General's opinion as long as there is an Attorney General's opinion in place. And so, pursuant to that opinion, we did deposit the money into the General Fund. Later, the Superior Court, and then later still, the Supreme Court, decided that the Attorney General's opinion was incorrect and that the money should have been deposited into the Constitutional Budget Reserve Fund. The Superior Court directed that defendants, who were the Administration, the Governor and the Commissioner of Revenue, should deposit that money before the end of this legislative session. And this bill is a bill that attempts to do that. "In connection with that lawsuit, there was also a request for -- I'm not a lawyer, so I might use the wrong words -- an injunction that, in effect, demanded immediate repayment of that money. There was a supplemental opinion issued by the same Judge Reese [phon.] in answering that demand. In that demand, and in the supplemental opinion, the judge said a couple of things. One, that because this money, when it was put into the Constitutional Budget Reserve Fund, it was apparent and with full knowledge of the legislature, and that the legislature also appropriated some of the funds during their regular session, that it was clear that the solution to this, the repayment of the money, was [inaudible due to background noise - going?] to be a joint effort between the Administration and the legislature. Also, he said, in that same supplemental opinion, that it wasn't clear to him that the Administration could unilaterally transfer the money in, because of this same interface with the legislature, knowledge of the legislature, and the legislature having appropriated some of those funds. And so, it's really out of those statements by the judge that we felt it was necessary that we submit a bill, to make it abundantly clear that the legislature was part of this process along with the Administration. And part of the reason for this -- we wrestled long and hard with this, and many of the members of this committee know that we had discussions with you and with your groups about what the right solution to this problem was -- and the Governor finally came to the conclusion that he wanted this problem taken care of. He wanted the money redeposited in a manner that would bring finality during this legislative session to the fiscal -- not only the budget that we're going to work on and pass in fiscal year l995, but also the fiscal year 1994 budget. And his Attorney General and others who work with him have given him the opinion that the only way you can have finality to this is by a 3/4 vote to, in effect, approve the actions of the last legislature in utilizing monies, some of which came out of the Constitutional Budget Reserve. "As a result of all these -- of the court decision, and of these discussions -- the Administration introduced a bill which is now HB 505. Fundamentally, what that bill does is -the legislature appropriates money out of the General Fund into the Constitutional Budget Reserve Fund. The amount of money that's appropriated is $945 million plus interest. $945 million plus interest is appropriated into the Constitutional Budget Reserve Fund out of the General Fund. This is generally the amount of money that had been deposited in the wrong account through the end of last calendar year, through December 31. In addition to that, there will be interest which will have to be calculated. Our latest calculation shows that brings the total amount that's going to have to be paid in to about $978 million, when the interest is added. That gets the money back into the Constitutional Budget Reserve Fund. The difficulty is, the amount of money that was appropriated by the last legislature, plus the decline in our resources available because of the decline in the price of oil between the time of the last legislative session and now, it requires that have all of that money left in the General Fund in order to meet the expenditures that were appropriated in the last legislative session, plus there would be a couple of hundred million dollars more in addition to this that would be required to just balance the l994 budget. "So, while it has been suggested that the Administration could just put that money into the Constitutional Budget Reserve Fund and wait for a legislative appropriation appropriating it back out, our concern is that it would not be possible for state government to continue to operate if the condition existed very long. So we wanted the appropriate -- the transfer into the Fund and the transfer out of the Fund -- to be in the same bill, so that, the term I use is, there'll be no more than a `nanosecond' without having that money in the General Fund, where it's really needed to meet our obligations. Once the money, then, is appropriated by the legislature into the Constitutional Budget Reserve Fund, the next couple of sections appropriate the money back out of the Constitutional Budget Reserve Fund and into the General Fund. "That's done in two sections. There are two parts of section four. The first part appropriates the $416,600,000 out of the Constitutional Budget Reserve Fund and into the General Fund. That's the amount of the misdeposited money that was actually appropriated during the last legislative session. The way that number was arrived at was merely a calculation of how much money we have received through the end of last legislative session on these kinds of settlements, which was about $825 million. From that we subtracted the amount of reserves we had in our spending plan at the end of the last legislative session, the difference then being the amount of the Constitutional Budget Reserve Money that no longer existed because it had been appropriated by the legislature. That's how the $416,600,000... You can't point at any project and say, `This is what we spent that money on.' It's just a mathematical calculation. And the reason for this was to make it clear to the legislature and to the public, frankly, that this is the amount of the Constitutional Budget Reserve Fund money that really was appropriated by the legislature during the last session. "Now, the next section, or subsection, transfers the rest of the money, which is about $529 million, into the General Fund. And that money needs to be transferred because of the decline in oil prices. If it weren't for the decline in oil prices, we would have been able to make it through the rest of the year with just the $416 million which had actually been appropriated by the last legislative session. But, the decline in oil prices calculates out to about $600 million less than we have available when you look at the price of oil at the time the last legislative session ended and now. "Now, when you go to section five, section five is the section that tells us which subparagraph of the Constitutional Budget Reserve Fund we'll use to transfer -- we're suggesting in this bill be used to transfer the money out of the Constitutional Budget Reserve Fund back to the General Fund. As you remember, when money is in the Constitutional Budget Reserve Fund, there are two ways to get it out. One way, subsection (c) of the Constitutional Budget Reserve, or the constitutional amendment, says that upon a 3/4 vote of both houses of the legislature, the money can be utilized for any public purpose. Subsection (b) was the subsection that talks about money being transferred out of the Constitutional Budget Review Fund with a simple majority if the amount available for appropriation in the current year is less than the amount that was actually spent in the prior year. That's, as you know, some terms that need some defining. Anyway, subsection (b) is the subsection that would say, `you can take it out with a 50% majority.' Subsection (c) is the subsection that says, `you need a 3/4 majority.' As we suggest in this bill, out of an abundance of caution because of the Governor's desire to have this thing done and behind us at the end of this session, [inaudible due to background noise - we have used?] subsection (c), which requires a 3/4 vote. "We're very confident that if the money is taken out under subsection (b) because of the disagreement over the term, `available for appropriation,' that there would certainly be a lawsuit, and we think the people of Alaska need to know that the money that's been appropriated for capital projects, and for other projects, for a lot of different reasons, in the 1994 session and the 1995 session, the 1994 budget and the 1994 budget -- the people of Alaska need to have some certainty that those funds are really going to be forthcoming and it could have a significant impact on the economy if there was still some question as to whether or not those appropriations were valid. So, for that reason, we think that we need to step out to the plate and take a 3/4 vote, and that's what this bill suggests." Number 314 REP. JAMES asked, "This is presuming that our choice of spending is the Constitutional Budget Reserve?" MR. STASNEY replied that this was true. REP. JAMES then inquired, "What happens if you don't get 3/4 vote? What's the alternative?" Number 324 MR. STASNEY replied, "I'm sure that's something that the legislature is going to have to determine and something that we're going to have work [on] with you. The only other alternative, in my opinion, is to transfer money -- I guess we could break the law in order to do it, but I guess the other alternative is to transfer money from the Earning's Reserve of the Permanent Fund into the Constitutional Budget Reserve Fund. If that were done, then this transfer in and transfer out wouldn't be necessary. It's possible -- because all the money that's currently in the General Fund is needed in the General Fund to meet the appropriations that we made last year. So, that's the other option." Number 332 REP. JAMES added, "I just have one follow-up, and that has to do with HB 58 and the definition that we tried to give on money available for appropriation. Are you saying that you don't want a court decision as to what `available for appropriation' means? Or don't -- do you think we should be trying get a court determination of that, or are we willing to just kind of go by the seat of our pants?" Number 341 MR. STASNEY replied, "Well, in my opinion, we're going to need a court determination. I think our solution is that we don't want a court determination to be standing over, if you will, this fix to what the court has asked us to do. I don't think there's any question that HB 58 is going to require a court determination. We believe that we'd like to get l994 taken care of. We've already had one lawsuit over 1994, and we'd like to have the people of Alaska have some finality and certainty, and we're concerned it may take some time before we have this other court suit out of the way." Number 353 CHAIRMAN PORTER said, "I have one or two, Shelby. As addresses HB 58, is it a fair statement that the Administration believes that that's a fair interpretation of the constitutional amendment?" Number 356 MR. STASNEY replied that this was so, but he wished for MR. BALDWIN to address that question for the Administration "because he's been following it and doing the testimony for the Administration." Number 360 JAMES BALDWIN of the Attorney General's Office introduced himself to the committee. He stated, "We believe that the interpretation set out in HB 58 is a fair interpretation and in fact is consistent with how the voters were advised at the time that they voted on the resolution that ultimately became the constitutional amendment. I think, as MR. STASNEY has testified, this is an area where we anticipate will be challenged in court. It's an interpretation that, just because of the high visibility of the subject matter, will more than likely be litigated. "Our intention of assisting the legislature in its efforts to enact HB 58 has been to encourage the legislature to come up with a good, common sense interpretation from the statute that can be used as a tool to defend the appropriations that are ultimately enacted for fiscal year 1994, 1995 and thereafter. With that statute being enacted we have a better chance of defending what the legislature does than if it is not enacted, and I have so testified in the House Finance Committee. There is a range of possible interpretations that can be applied to the words of the amendment. That's why people have referred to it as being ambiguous, which means it is subject to more than one interpretation. It's been our testimony that we believe a court will give great weight to an interpretation embodied in the statute that is proved by the legislature, since it is the legislature that possesses the appropriation power. I'm not sure if there's any one right answer, but I think that a good, common sense answer, which I think is embodied in HB 58, has a good chance of being upheld by a court of law." Number 405 REP. JAMES said, "I have a question that either one of you could answer about some of the concerns that I have. We have passed HB 58 out of the House, and it appears to me that this flies in the face of HB 58 because this just assumes that just to be safe we're going to get a 3/4 vote. It seems to me likely that if we were going to implement HB 58, we ought to do everything else as it goes along with HB 58. And of course, we don't know exactly what those decisions are. I believe the state -- the court order -- says that we need to have this done before the end of the legislative session. So mightn't it not be prudent to get a little further down the process to see whether there are funds we might be able to make available or reductions that we might be able to make that might alter these numbers and make it fall right into the line of HB 58." Number 423 MR. STASNEY stated, "We were concerned about that same thing, too, REP. JAMES, and that's why in the findings we made it clear that this wasn't an attempt to say that we believe that that's the only way it could be done. To use my own words, but it's in the findings, out of an abundance of caution, we chose this route fully understanding that an assembled majority may be the right way to go, in keeping with the Governor's directive -- and I think rightfully so - - that he wants to bring finality to this; this is the way that our attorneys advised us we can have finality in the l994 budget. Get it done, get it out of the way. We certainly are willing to work with you and others, REP. JAMES, regarding any potential reductions to the budget -- in addition, as I said before, to this amount out of the Constitutional Budget Reserve Fund, is going to take another couple of hundred million dollars to balance the 1994 budget. This certainly isn't the end of the equation, it's just the beginning, to meet the court order." Number 444 CHAIRMAN PORTER commented, "An observation: to get it on the table, this lawsuit that is undoubtedly going to come, is undoubtedly going to come from the minority members of the House or the Senate, or both. I don't know if there's any correlation between that and the fact that the minority members of this committee are not here, but to that end, and recognizing that finality certainly is the goal, I guess, not rhetorically, is it appropriate to take this course when, to me at least, there is a greater likelihood of a failure to get a 3/4 vote for a whole myriad of reasons than there is to prevail in the lawsuit that says HB 58 is an appropriate interpretation. With that in mind, I would not count on delaying the inevitable by taking this route." Number 462 MR. STASNEY responded, "Obviously, there is that chance. We kind of believed, as you stated earlier, that this is getting it on the table. We've got a vehicle to talk about. As I mentioned earlier, the judge indicated that it ought to be a joint solution between the legislative and the administrative branches, and we certainly expect to do that. Whether or not this would delay or add fuel to the fire, I guess is a judgment call. But in our judgment, we felt like this got it on the table. We tried to put language in the findings that would make it clear that we didn't believe that this was the only solution." Number 475 REP. JAMES said, "I think that the general public and a lot of people that I've talked to think that when you've got a 3/4 vote for something, that you've really got something everybody supports. And that probably is true. But how it got there from here was the problem. I don't see a 3/4 vote as a real panacea in this situation because it causes you lots and lots of problems in other ways to be able to get the 3/4 vote. From my perspective, I'd like to do this as deliberately as possible and go through all of the processes, if possible, of seeing what can be reduced, what other monies might be available. And the general public is also saying that (1) they don't want a paper transfer in and out and (2) they don't want us to spend that money any more than we have to. So I think that as a legislature we have a responsibility to the people to at least review all of our options and determine at least findings as to why the option that we choose is the very best option that meets the needs of the people." Number 494 MR. STASNEY responded, "And we commit to work with you toward that end, because we don't disagree with that." REP. PHILLIPS called for the committee to move the bill and then vote on the amendments. CHAIRMAN PORTER noted a motion to move HB 505 had been entertained and it was so moved by REP. GREEN. REP. PHILLIPS proposed to move Amendment 1. CHAIRMAN PORTER noted that Amendment 1 was being passed out of committee and requested that REP. PHILLIPS discuss Amendment 1. REP. PHILLIPS said, "Amendment 1 does something very, very simple. It meets all of the requirements established by the court ruling. It is very clear. It clarifies the court ruling. It meets the public demand that we aren't going to do a paper shuffle. It satisfies the basic requirements that are needed. It appropriates the money into the Budget Reserve Fund from the General Fund and leaves it at that. We will work through the rest of the issue as we can, and to that point I will say that there will be an announcement made tomorrow on the floor, under special orders, on the budget plan for this coming year. The budget plan that we're going to announce tomorrow will address the entire issues of the sections that we are deleting. I would move Amendment 1." CHAIRMAN PORTER stated that Amendment 1 had been moved and asked if there was any discussion. Number 525 REP. JAMES commented that the Judiciary Committee generally reviewed "the legalities of everything, and I think that the proper place for that portion of this to be done would be in the Finance Committee, which is the next committee of referral." Number 528 CHAIRMAN PORTER agreed that the review of the Judiciary Committee is towards the issue of legality and constitutionality. He said, "I know Daniella and I have reviewed the bill from that aspect, and really find no constitutional problems with the bill or for that matter with the amendment, which would basically take half of the action of the bill and leave the option of the other half to the Finance Committee where it's going next in any event, so as to coincide with the plan." Number 539 REP. KOTT affirmed that "what we have got here is probably a good tool that we can use a little bit later down the road. I would just call your attention to page 4. I'm not so sure that this shouldn't also be eliminated. Line 19 -- this also appropriates the same amount of money from the Constitutional Budget Fund [as it does] to the General Fund. Do we want to leave that in? Or, I think, perhaps, to confirm with this particular amendment, that should also be included as a friendly amendment." Number 555 CHAIRMAN PORTER clarified, "We would then be adding to Amendment 1 on page 4, line 19, delete `this...' through 21, ending with `General Fund.' The last word of line 19, all of line 20 and all of line 21 on page 4 would be deleted. Friendly amendment?" Number 565 REP. JAMES said, "I would consider that a friendly amendment... I find more language on Amendment 4 that I think probably needs to go." She cited line 31 on page 4 for reference. Further discussion of the language of the amendment followed. REP. PHILLIPS specified, "In the amendment, we're not dealing with the issue of the appropriation or the 3/4 vote or anything. What the amendment gets to is just taking the money out of the General Fund and putting it into the Budget Reserve Fund. Period. [This] does two things. It satisfies the will of the court and satisfies the will of the public." REP. JAMES responded, "The problem that I have with this is that it does go on to discuss how this act, how this is going to take the money back out again, the procedure, how it is going to be done." REP. PHILLIPS expressed optimism that the Finance Committee would resolve procedural questions for the reinstatement of funds, saying, "When Finance gets to it, and deals with how they are going to put the funds back, they will amend the findings." Number 595 CHAIRMAN PORTER said, "With that understanding, is there further discussion of Amendment 1? Is there objection to Amendment 1?" There being no objection, Amendment 1 was adopted. The committee then considered a motion to pass HB 505 as amended out of the Judiciary Committee to the Finance Committee with individual recommendations. There being no further discussion or objection, HB 505 was moved out of committee. HB 442 - CRIMINAL JUSTICE INFORMATION Number 603 CHAIRMAN PORTER introduced discussion of HB 442, Criminal Justice Information. He requested an overview of the bill from representatives from the Law Department before embarking upon specific testimony and was advised that a previous hearing had not been held. DEAN GUANELI was requested to provide an overview of the provisions of the bill and advised that he would be called back later in the hearing to testify. Number 615 DEAN GUANELI of the Criminal Division of the Department of Law explained: "This bill that you have before you has been in the works for a number of years. It does a number of things relating to criminal justice information systems: (1) It sets up an advisory oversight committee to assist the agencies in dealing with criminal justice information systems. Current law provided a fairly unworkable committee to oversee these systems, and as the law developed over a number of years, it turns out that some of the systems in existence don't really fall under the current law. It's been pointed out by a number of different agencies -- Legislative Audit, for example --that there needs to be some continued oversight of criminal justice information systems. The first section in the bill sets up an advisory committee to provide some guidance as to how agencies ought to deal with their systems. (2) The second section of the bill imposes duties upon the Commissioner of Public Safety regarding criminal justice information systems. Essentially, what this does, is it sets up, within the Department of Public Safety, what's called a central depository for criminal justice information. It basically says that we are going to have within the Department of Public Safety a place for keeping criminal history records where people can go to get accurate criminal history records. It's one thing to -- a lot of these, particularly to the extent they are conviction records -- are public records and you can get them at the court, but the courts are scattered all across Alaska, and really across the United States, and there ought to be one central place where they are located, and that's to be Public Safety. (3) The third part of this bill mandates that fingerprints be taken as part of the criminal justice process. I think it will come as a surprise to all of you that there is no statute in Alaska that requires that fingerprints be taken when someone is arrested. It's a fairly standard police practice, but, at times, and in certain places, it's not done uniformly, it's not done regularly, it's not done well, in other words -- the fingerprints are smudged, they can't be read. This sets up a statutory requirement that fingerprints be taken, and that they be legible; and if they aren't legible, that they be taken over again. Several years ago the legislature appropriated $7 million to the Department of Public Safety for an automated fingerprint system, and the only way that can work well, and the only way we can have accurate criminal history records, is if the fingerprints are taken, and taken uniformly. "Some of the other sections require that criminal justice agencies provide the Department of Public Safety with information; the kind of information they need to have a good central criminal justice information system. That is something that does not exist in current law. Among the most important provisions... starts on page 7... which basically says how, to whom these records can be released. It sets up specific statutory guidance as to when and for what purposes these records can be released. I'll be in a position to say some more about that later. But that is something that is needed in current law. The remainder of the sections impose certain requirements about correcting information that is found to be inaccurate. It allows people to get access to their own records, to be able to correct them. It sets out ways in which people can do that. And then there are a long list of definitions. "In essence, what this bill does is, it sets up a statutory framework for bringing Alaska really into the 21st century in terms of criminal justice information systems and collecting information. As you know, there are a wide variety of uses for this information; sentencing, certain proceedings need this information for a wide variety of licensing functions that require checks of criminal records. The Department of Health and Social Services uses these records to assess the suitability of foster parents and daycare centers, people who work with children, teachers. For better or worse, we've got the Brady bill that was enacted at the federal level, and we need accurate information to be able to do the records checks required by that, and in order for the State of Alaska to participate in a large number of interstate criminal justice systems. In other words, in order for Alaska to get good information about criminals from other states, we are going to have to have certain procedures set up, and this bill sets out a framework for that. So, it does a lot of things, but it basically sets up the statutory guidance for doing, really, what we have needed to do for a long period of time. I also have, for anyone who is really interested in the details, I have a 17 page commentary and section by section description of the bill, and I will provide it to counsel for the committee. That is available if you want to get into the details." CHAIRMAN PORTER thanked MR. GUANELI for the presentation and introduced CHIP THOMA. Number 704 CHIP THOMA testified on behalf of himself in support of HB 442: "I strongly support HB 442 and the companion legislation SB 276. It has been requested for over two decades, beginning with the Governor's veto of similar legislation, SB 387, in 1972, having to do with the right of privacy in public safety records, and then the subsequent passage of SJR 68, the right to privacy by a six-to-one vote of the people, which of course became the constitutional amendment also in 1972. Additionally, the legislative audit of 1986, [the] 1991 report of the UAA Justice Center, the Ombudsman report of December 10, 1992, and the many reports of the Search group of Sacramento who have been contractors with the Department of Public Safety for over 20 years. Importantly, all these subsequent reports and concerns were generated by the lack of statutes and the regulations concerning the privacy, security, access and, importantly, the release of criminal records, and the need for controls so there would not be misuse of those records. I am happy to see that this legislation finally attempts to address the shortcomings in state law which are present in federal law; specifically, 28 CFR, part 20. "However, in the most sensitive area of these provisions, the release and dissemination of records, HB 442 presently fails in some ways to provide adequate protections. The door is still open for abuse of records, both state and federal. And I trust the committee will consider some minor but substantive amendments to the legislation. In that vein, MR. CHAIRMAN, if I may, I have the amendments that were adopted by the Senate Judiciary Committee, and I'd be happy to hand those out to the committee, and briefly go through those, at least the ones that I'm interested in." CHAIRMAN PORTER directed MR. THOMA to provide these amendments to the Judiciary Committee counsel and to incorporate any information he desired from his own suggestions for the bill into his testimony. MR. THOMA continued, "On page 7, line 1, after `maintain' add the word `or released by an agency' instead of `by the agency.' For the committee's information, there are over 20 state and federal agencies presently with access to APSIN, and the definition `by the agency' should not just apply to Public Safety. The reason I am requesting `or released' in this section is that it does apply to page 6, line 17, Section 3, where the `completeness, accuracy and security of the information'... under Section 3, `to provide adequate procedures and facilities to protect criminal justice information from unauthorized access and from accidental or deliberate damage by theft, sabotage, fire...' and so on. I believe that the addition of `released' in this section will tighten up the [indiscernible] that this information does retain security and provide completeness and accuracy. And I would ask the committee to consider that, as an amendment. "Also, on page 9, line 23, after the word `records' add `and maintains for at least three years the name of the person or agency that is to receive the information, the date of the information if it is released' and then add `the purpose of the request and the nature of the information.' Both of these additions tie the release of information to the audit procedures that are envisioned under page 6, line 29, of the bill, and the purpose of the request, as stated very clearly on page 9, line 27, in the next section, Section 5, where it states the purpose. I think that those two additions to that section will go to the heart of the matter, which is the release of information. Finally, on page 3, lines 7-9, the clause beginning `In adopting the regulations, the Commissioner shall consult with effective law enforcement agencies regarding the fiscal implications of the regulations,' I believe this clause is too strong and should not be mandatory. Despite the fiscal impacts, Public Safety and all agencies linked to APSIN should adopt regulations that provide for the security, the accuracy and the release of this federal and state [inaud. - history?] of information. I believe substituting the word `shall' with the word `may' allows the Commissioner the latitude to consult with them, but `shall' for this purpose is too strong. There is an onus on the Commissioner to consult with any and every police agency, whether it be a small town... a small village... and in effect giving the chief of police or the person in charge of that information a hand in determining whether these regulations and statutes should be adopted. I don't think that was the purpose of the legislation. I think that `shall' should be replaced with `may'. Those are the three main amendments that I would propose for the committee, and I hope that there will be some consideration of those, MR. CHAIRMAN." Number 793 CHAIRMAN PORTER invited other individuals testifying to respond to all of MR. THOMA's recommendations save the last, which he chose to take up himself. CHAIRMAN PORTER stated, "Having been one of those police officials that this is suggesting that they should consult with, I think it is appropriate that the Commissioner should consult with them, so as to make sure that he receives any information that would be relevant. What this provides, is that he consult -- not that he be guided by the response of -- but that he does consult. Really what this is requiring is that he at least requests the feedback from all those who are going to be affected by this bill. And I think that's a reasonable request. It does not, as you suggest, indicate that he must respond to any consideration that they will present." Number 808 MR. THOMA acknowledged CHAIRMAN PORTER'S points, adding, "I feel differently. I think that Public Safety has in effect dragged its heels on implementing these regulations, and I think that this is another [inaud. - clause?] that allows them the latitude to again drag their heels, and I think it should be just `may'." CHAIRMAN PORTER responded that he appreciated MR. THOMA's considerations and thanked him for testifying. Number 814 DUNCAN FOWLER, Ombudsman, testified in support of HB 442, stating: "I am really pleased that you have HB 442 in front of you. It has been an issue that has been a real concern in my office for several years, and we've been anxious to have the Governor introduce this for at least the past three years, and I'm really pleased that it's here now. I see this as being a very important piece of public policy legislation. It's one of these situations where, since the late 70's, we really haven't had any legislation that helps insure the integrity and the security of the criminal justice information in the state. And I think this bill does that. It also provides a way that citizens can go in an and attempt to correct any errors that may appear on their records. Obviously, we get people who complain about the fact that an error may have been made, either purposely or inadvertently, to their record, and they want to get it corrected. And this provides a formal mechanism for them to go through and appeal the accuracy of their records and to be able to have something done about them. "The thing I probably like the most about this bill is that it also defines the rules for the appropriate access and use of this data and also sets out penalties for the abuse of the data. Over the years we'd get about one to two complaints a year that talks about somebody abusing this data. There have been some cases where I think, frankly, prosecution should have been considered, but there really hasn't been a framework that the law could be able to proceed under. This provides that. Some of the examples of some of the kinds of things we have had over the years: We had a Corrections employee whose daughter had a car accident. The employee used the accident system to be able to trace the car license numbers and he eventually attempted to file a private lawsuit against the person who hit his daughter. Now, that is not an appropriate use of this information. He was using the state justice system for his own personal economic gain. That is not appropriate. If the law enforcement agency is doing an investigation, they should be able to proceed and do that. There should not be a [personal] involvement in this. We've had a couple of welfare fraud investigations where individuals have used APSIN data to be able to go out and, in one case, one person was watching the business associates of the ex-spouse, and calling up and harassing these people, and checking on license plates on cars, calling up and giving them a hard time -- the person was eventually dismissed, but not for lack [sic] of a good, solid legal framework within which the state could act. "We also had a situation where we had a complaint that the Governor's Office made inquiries and received criminal justice information about a person who was taking some issues against the Governor and that they released this information in an attempt to intimidate other people to not listen to the person involved. We found some very strong circumstantial evidence that this really occurred. The Governor's Office didn't disagree with it, but nobody could really put the finger on the name of the person who did it, even though we were able to find evidence of the inquiries that were made into the justice records. And we could document those. But we didn't know who received them. And I think this is part of some of the logging information that will eventually occur through having a bill like this available. I think this helps solve things like this. My office certainly supports this. It is a very important piece of legislation and I am just tickled that it's up here." Number 867 BILL COTTON, Director, Alaska Judicial Council, testified in support of HB 422. He said, "The Judicial Council took the rather unusual step of voting to support this legislation. It lays the groundwork for accurate criminal history records in Alaska." TAPE 94-28, SIDE B Number 000 MR. COTTON continued his discussion of HB 422: "...[We have a] bit of a unique interest... in that the legislature assigned us a task last year to work with the other criminal justice agencies to coordinate the various criminal justice computer information systems. We have hired some consultants to work with us. We have come to believe that this is just an essential first step for that task, also. We are going to share information and save time by not reentering information time and time again. We have to be able to accurately identify the criminals in the system and tie their identity to fingerprints, so it is accurate. This is really a prerequisite for any coordination of the data in these different systems. "We did propose two minor changes before the Senate Judiciary Committee that were adopted there. One would be to add official counsel as a member of that advisory group. I have given the exact language to your counsel. The other was suggested by our consultants. There is, on page 3 of the legislation down at the bottom, I believe it's on line 30, a requirement that a criminal justice agency taking fingerprints required by this section send the fingerprints in to the central office within five working days. Our consultants suggested that that be shortened to one working day. The point there is -- not that there couldn't be extenuating circumstances -- but at least the standard should be to get those things in as quickly as possible to avoid situations where someone might be released because their real identity wasn't known. "With or without those changes, the Council believes this is a very necessary and important piece of legislation that impacts the criminal justice system in numerous ways." Number 067 REP. NORDLUND tendered his strong support for HB 422, saying, "I think it's very good. I'm glad it's finally come down the pike. I've got a letter here from University of Alaska from John Angle. He would like a representative from the University of Alaska on this board -- is it a board? -- advisory to the Department of Public Safety. I was wondering if you had an opinion about that?" Number 088 MR. COTTON replied, "No, I don't, off the top of my head. I hadn't heard -- I hadn't seen that proposal before. The University has worked on the statistical side of things. I think that there's a trade off between getting more information and not having a board of an unwieldy size. I don't think I have any opinion. The Department of Public Safety might be in a better position to comment." Number 100 REP. NORDLUND said, "For the information of the committee, I am going to put this amendment forward to have the director of the University of Alaska Justice Center Statistical Analysis Unit added to this group. I have a letter here of back-up that's written to my staff that I'll distribute." Number 109 MR. COTTON noted, "The reason that the Judicial Council asked that it be represented at this group is not so much because we have done statistical working reports in the past, but because of the work with the Citizen Commission and this recent computer coordination project. That was really the focus of the request by the Judicial Council." Number 116 REP. KOTT said, "You prefaced your remarks on the bill with an opening statement that has me somewhat puzzled. You said, `The Council has taken a rather unusual position.' What is so unusual about [indiscernible - positioning yourself]?" MR. COTTON replied, "It's not an unusual position. I think it's unusual for the Judicial Council itself to vote to urge the legislature to adopt or not adopt legislation that's really -- that doesn't have a direct impact on the Judicial Council. And the only reason the Council is doing it in this case is because it does have a direct impact on that project which you folks assigned us. So, it's not an unusual position; only that the Council doesn't usually endorse legislation." Number 139 DEAN GUANELI, Department of Law, and KEN BISCHOFF, Department of Public Safety, were recognized to testify further in support of HB 442. MR. GUANELI stated, "As you can say, this bill has fairly broad support. The House Judicial Council, the Criminal Justice Working Group, which includes members of the defense bar, the Ombudsman's Office, certainly the Departments of Law and Public Safety, and other agencies [loud and sustained paper shuffling, words inaudible]. As the other speakers have indicated, it is an important piece of legislation. Let me just give you one example that MR. FOWLER touched on. Right now there is no provision in Alaska law [inaud. - requiring?] fingerprinting, but there is also no provision in Alaska law that specifically makes criminal justice information like this confidential by law. There is [no?] a criminal statute that makes misuse of confidential information -- so when we get someone who has misused this information we're stuck. If we can't do anything else to them, there is no criminal law that we are able to prosecute. Under this legislation it clearly states that this information is confidential by law, and therefore the [inaud.] that are on the books are useable. [Paper shuffling continues to partially obscure words.] In the past what has happened is that officials [have] disciplined them [usually] by firing them. But when we run into situations where it is not an employee, it's somebody else who's gotten some information, it makes it difficult to take any action. "This bill does an awful lot of things for the system... The idea that a criminal justice information system be available to all the agency supports and that it be accurate [inaud.] is being used more and more frequently. I think that legislation like the sex offender registration bill, which basically says we want to know when sex offenders are in our community, I think that kind of legislation is furthered by this bill. "One thing that this bill does, and I want to clearly point it out, that's a major change from the way we do things currently, is that it makes a wide variety of information more accessible to the public than it is right now. Under this bill, anybody in the public can go in to the Department of Public Safety and say, `I want to find out information. I understand that my next door neighbor just got released from prison. I want to find out what his conditions for probation are.' That's something that would be very difficult to find out right now. This bill will allow that to happen. I think it's something that is in the public interest. If someone has just been released from prison, the public has a right to know, `Should that person be drinking? Should that person be dealing with children? What conditions are restricting that person's activities?' I think it's in everybody's interest that we be able to do that. There's a limit, there's a time limit on that information. If ten years have passed since the person was released from state supervision, then you can't get access to that information. So at least there's some bottom line. "I know a lot of people are frustrated when they try to find information about someone's past criminal record and they're told, `Well, this is a Fairbanks case, so go to Fairbanks court and try to find it. It's only recently that the courts have started to get automated. Some of their old records are on microfilm, microfiche... and it's very difficult. This is really the only practical source for them. I think we need a good statutory framework to allow the kinds of things that Bill Cotton was talking about to occur. That is, to allow all the systems to interact together, to make the systems efficient and effective so that the Department of Law, for example, is not entering in information about one person and the Department of Corrections is entering separate information, and the Department of Public Safety and the court system... it would be nice if at one central location the information could be coming and there could be a central spot for those records that we could be assured have some high level of accuracy. This bill sets the framework for doing all that. "It doesn't mean it's going to get done immediately. Public Safety is working diligently to upgrade and improve their criminal justice information systems and I think even has some federal money to allow it to do that. The FBI sets the standards for improving criminal justice information systems and these statutory requirements go along with those federal guidelines." Number 280 KEN BISCHOFF, Director, Division of Administrative Services, Department of Public Safety, sketched in the scope of the criminal justice information issue in Alaska, saying, "In Alaska, we have approximately 330,000 conviction records, felony convictions, and approximately 135,000 record subjects. Nationally, there are over 50,000,000 felony records. In order to do a national search -- I might add that between 20 to 30 percent of all offenders have a record in more than one state -- in order to do a national search, you need the fingerprints in order to conduct that search. If Alaska is unable to do that search, or have the fingerprints to conduct a local search, we cannot do it with positive identification. We can only do it on a name-check basis, and we have occurrences of up to 24 aliases on certain records. People tend to use different names. They tend to get different pieces of ID. Unless we have the fingerprints we don't know who they are. So, I'm kind of the mechanic behind the scenes. Dean's done an excellent job of putting a bill together that will give me and my staff the ability to proceed and do a better job of maintaining a criminal history database." Number 293 CHAIRMAN PORTER brought forward a motion to move Amendment 1 and REP. NORDLUND moved the amendment. REP. NORDLUND remarked, "I think that it's important, given the fact that a lot of this is an academic exercise involving analysis of statistics and information, that we have a representative from the University of Alaska on this advisory board. I, just philosophically, believe that we need to do a better job of utilizing the resources available at the University of Alaska to help the legislature and the executive [branch?]. Other portions of the executive branch do their functions -- MR. ANGLE lays out here in the letter written to my staff person the reasons he thinks that he should be included on this advisory board. I would note that there are eight members already. Sometimes it's a good idea to have an odd number of people on a board anyway, in case there happens to be a tie vote. I hope members of the committee will support this amendment." Number 328 REP. JAMES affirmed REP. NORDLUND'S expressed belief concerning the inclusion of a University representative. She said, "I, too, I think that we are leaving a real deficit in our ability to function in this state by not including the ability of the people at the University of Alaska to be involved. One question I have, though -- What would that do if anything to the fiscal note?" Number 339 REP. NORDLUND replied, "I imagine that we would need to get a fiscal note from the University of Alaska on this. Although, given the fact that MR. ANGLE has taken the initiative upon himself to try and get on this board, I would assume that they would try to keep their fiscal costs down, if anything. I noticed that most of the other departments that are on this board have turned in zero fiscal notes, and they're just doing it with existing resources, I imagine, except for Corrections." REP. JAMES reminded the committee that this did not include travel expenses. REP. NORDLUND continued, "That's a good point. I'd be glad to ask the University to have the fiscal note available to the Finance Committee." Number 351 CHAIRMAN PORTER said, "I understand DR. ANGLE'S request to add a representative from his program. I have some sympathies for the University of Alaska. At the same time, I have some sympathies for trying to make a very difficult program like this one function. And this is now an eight member advisory board. There are certain requirements within the bill that this advisory board must meet and every person that is added subjects the board to more potential for not being able to accomplish their tasks. "I'll speak at the same time to Bill's suggestion that the Judicial Council wants to be a member. For the same reasons I would not support them. The Judiciary has a slot on the Commission already, and certainly could appoint Judicial counsel if they so choose. But, in all fairness, the University has a particular bent for interest within this piece of legislation -- statistical analysis. That's their job. If there is a perceived need for that, the University certainly is a resource that has been and can continue to be tapped for specific identified projects." CHAIRMAN PORTER reiterated, however, that he felt an eight- person board was sufficient. He noted that the board would be meeting in public and that other entities could participate "as may be relevant to their particular interests," whilst perhaps those interests might not be "relevant on an on-going basis." Number 392 REP. JAMES, while acknowledging the virtues of a smaller board, enjoined the committee to be mindful of many past opportunities that had not been seized to engage the resources of the University. She remarked, "Through my evaluation of what this group is going to do, I believe that what they are going to do is implement this system of statistical information... I believe that someone with statistical information skills should certainly be a part of this group." She further marked the need to cease sending chronically negative messages to the University which demonstrate an absence of faith in the University's work and research. Number 417 MR. BISCHOFF responded that statistics, while important, are "not anywhere close to the primary purpose of the criminal history record database. The criminal history database exists to base criminal justice decisions. Police use it to investigate crimes, identify individuals. Examples include taking latent fingerprints off a phone in a phone booth from an offense in Anchorage; running that latent print through our system and making an identification. Having the person's criminal history record available so that we can make the identification; find out what kind of a person that is and is it a possible subject, a probable subject and make an arrest. To have a complete criminal history database, we need the fingerprint, we need the police to cooperate to make the arrest entry in APSIN, we need Corrections to take the fingerprints and submit quality fingerprints to Public Safety for verification of that person's ID, and if that person has criminal information under another name, then we also need to contribute to that police officer and for the prosecutors in the court to consider upon that case. We need the courts to submit judgments which are the results of whether the person is guilty or not guilty. We need the prosecutors to [advise] us whether a decline to prosecute is a budgetary issue or whether it is not a good case... so we have a complete criminal history. "Statistics are important for public policy decisions, but that is five percent of this issue. I am reading from Dave's commentary which was provided in the packet to the committee: In order to keep the board to a manageable size, the board's membership is limited to commissioners from five state departments most directly involved in criminal justice matters. The Chief Justice, the Municipal Police Chief, as well as a public member appointed by the Governor." MR. BISCHOFF itemized cooperative ventures between the University and the Department of Public Safety, including, among others, preliminary efforts to prepare for the Brady bill. He affirmed the vitality of past and present cooperation. He cautioned, however, that "to the extent we put additional non-line agencies on this board, it's going to take away from the direct functional purpose, in my opinion." Number 471 REP. KOTT stated, "I am going to speak out against this amendment. For the most part, for very similar reasons as you spoke against it. I think that a membership of eight is certainly a justifiable number. I really don't think we need to have an odd number. If you look at the function of the board, it's an advisory board only. For that reason, I don't think we need to have an odd number. Certainly there a number of other entities that could be included in this board. I think it's a policy question as to how big a board we want. I think we have a good number right now, and I'd be open to striking out one or two of these entities that we've already identified and replacing one or two of those with perhaps some of the ideas being circulated at the present time. But I think the present number, the entities we've identified, are certainly supportive of the board membership that we've addressed here." Number 489 REP. JAMES said, "I tend to agree that too many is too many, and I'd like a smaller number, too. But, just in response to the information that I understand this is all about, it is gathering information and making it readily available when you need it. To me, that is the same as statistical information, and maybe it's because I'm using the word `statistics' as a general term -- but being able to put that information in and get it out in a timely manner certainly does take some expertise in that area. I believe there could be some assistance from someone in that area. I am willing to concede that nine is too many. I don't think we need that many people to make decisions and to be on an advisory board, but I believe that I do understand exactly what it is that we're planning to put together here, and to be able to retrieve." Number 503 CHAIRMAN PORTER sated, "I guess, one of the two members of the Criminal Justice Working Group that hasn't been mentioned yet is the Chair of the House and Senate Judiciary Committee, who are also members of that group that has supported this bill. From that position in my previous life, I know that this bill and other renditions of it have been under discussion, and this particular bill has been under development, for four years... and discussion for a lot longer than that. There is an awful lot of requirement for interagency within the state and intergovernmental intrastate cooperation to make this thing work -- and an awful lot of that negotiation process, if you will, has gone into the bill that's in front of us. With that in mind, I would suggest that we should have overwhelming need to alter that, as its effects we may not know." Number 524 MR. GUANELI commented that of the eight proposed board members, one of whom was a member of the public, seven were the heads of agencies with "the most direct involvement in getting the system to work on a day-to-day, on-going basis where operation of the system is really, if you will, necessary to their functions. [These agencies] all have on- going criminal justice information systems and they're trying to make them all work right now." MR. GUANELI delineated the key functions and significance of each proposed board member and the agency he or she represents in developing an optimally designed criminal justice information system. He noted the existence of a trans- agency "technical users group" focusing on the technical issues involved in computer systems and the effective generation of statistics. Number 564 REP. JAMES said, "I want to let you know that I certainly support technical information and getting on the technical track. One of the things that has distressed me about the state is all the fragmented amounts of material that we have, and no one can get [to them]. So I am very supportive of this bill for that reason, because it is going to make those things come together in a single source where information can be gotten back. I think we need that very desperately." Number 574 REP. NORDLUND commented, "Not to belabor this amendment any more... my intent [in suggesting] this person be on the advisory board was to assist, not to be cumbersome, to the board. If it is the best judgment of this committee that it may be more cumbersome, then so be it. But I hope the board will certainly employ the resources of the University as you go through this effort, as well as the Judicial Council. I think we've probably had enough discussion about this." Number 597 MR. GUANELI said, "MR. CHAIRMAN, I'd be more than willing to discuss some of the other amendments if that is the Chairman's wish." He continued at the request of CHAIRMAN PORTER. "There was a suggestion by MR. COTTON that the time frame for submitting fingerprint information from local police departments to the Department of Public Safety be changed from five days to one day. The five day provision... came from consultants that the Department of Public Safety had contracted with, members of an organization called `Search Incorporated,' a nationally known consulting firm that works with police agencies all across the country. Probably the most common time frame for submitting fingerprints to a central agency is three days, across the country. It ranges from a minimum of about 24 hours to a maximum, I think, seven to ten days. It was the feeling that five days is appropriate for Alaska. This is not New York City where at the press of a button you can have something delivered across town, or with a courier. I think that some flexibility is needed, particularly for small police departments that may want to just gather up a number of fingerprint cards, send them in once a week to the Department of Public Safety, or because they are such a small police department they simply don't have the staff available to do things on a daily basis. So there was a feeling that five days is something that is workable for Alaska. Now, if other consultants had come in and said that 24 hours is workable for Alaska, that's fine, but I think, the Department of Public Safety thinks, that five days is appropriate. I would hope that the committee might confer with somebody from a small police department and find out how it's going to affect their operations. I think that paperwork tends to drown small police departments, and I think that this is another example of that. I think we would feel more comfortable that the records would be submitted on a regular basis... 24 hours may not be manageable." Number 632 REP. KOTT said, "Since you have the expertise here, it would stand to reason, I think, that most departments would supply this information as readily as possible within their means. I certainly am not willing to make it mandatory to provide the information within 24 hours if it's going to impair their operations. I am sure that they are going to give this their utmost attention and not sit on it, understanding the importance of fingerprinting." Number 645 CHAIRMAN PORTER stated, "The agencies that will be dealing with the vast majority of these records will be submitting them within a day. The problem of making it mandatory on everybody is that the Department of -- I always say Iggigik, I am sure there is not a Department in Iggigik, and I've never been to Iggigik, so no offense to Iggigik, but that's my typical village -- that's a one-person operation. And if there is an arrest there, there might be something that person has to do right after that, and it doesn't involve sitting down at a typewriter and typing up the necessary forms to submit... that person is going to get at it just as soon as he or she can, but a one day turnaround or something like that is just not reasonable." Number 658 MR. GUANELI said, "And I think the other practical consideration is that a lot of the people who are arrested are intoxicated. It may not be practical to take fingerprints right away. They may be struggling with you, they may be fighting. If you get them at all they're going to be smudged and you'll have to do it again. It may be better to wait 24 hours or 36 hours or until the person's been to court -- there are just a lot of practical considerations [involved]." Number 664 CHAIRMAN PORTER, assessing committee member sentiments on Amendment 1, formally objected to the motion and called for a role call vote unless there was further discussion. Number 689 REP. NORDLUND said, "I'm not sure just what all the dialogue was, but if we were going to interject a member from the University of Alaska, I would think that we should remove someone else. And since that's already there, I think probably I would be opposed to this." REP. NORDLUND withdrew Amendment 1. CHAIRMAN PORTER announced the withdrawal of Amendment 1. Number 695 CHAIRMAN PORTER asked MR. GUANELI if he had the opportunity to consider MR. THOMA's suggestions. MR. GUANELI responded, "I did. He made these same suggestions at the Senate Judiciary Committee. To a large extent, we didn't have a problem with them. The Senate Judiciary Committee made a slight wording change to one of them. So, if you want to go over them, I can state our position on these. I think it's fair to say that we would not have an objection to the amendments made in the Senate Judiciary Committee. I think counsel for your committee has a copy of those amendments." He referred to page 3, line 8, and the suggestion by MR. THOMA that the word "shall" be changed to the word "may" and discussed its possible implications, concluding that substitution of the word "may" would not hinder or impede interagency communications or consultations. He said, "I think that having an advisory group that includes all the affected agencies means that as a matter of course [relevant matters] will be discussed with them. So, that was the basis on which we did not have any objection in the Senate Judiciary committee on the changing of `shall' to `may'." Number 720 COMMISSIONER BURTON tendered the opinion that "shall" was preferable to "may" and that the word "shall" was not binding. CHAIRMAN PORTER added that communicating would not in any case be a cumbersome duty given that all involved would be present on the same computer network. Number 745 CHAIRMAN PORTER said, "In front of us is Amendment 2 which that incorporates two of the things that were incorporated in the Senate version." REP. JAMES moved Amendment 2. There being no further discussion, Amendment 2 was adopted. Number 765 CHAIRMAN PORTER said, "I believe we have dealt with all of the concerns. We have then in front of us HB 442 as amended." REP. JAMES moved that HB 442 be sent out of committee as amended with individual recommendations and fiscal notes as attached. There being no objection, HB 442 was moved out of committee. The meeting of the House Judiciary Standing Committee was adjourned at 2:55 p.m.