Legislature(1995 - 1996)

04/10/1996 01:12 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                         April 10, 1996                                        
                           1:12 p.m.                                           
 MEMBERS PRESENT                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
 MEMBERS ABSENT                                                                
 COMMITTEE CALENDAR                                                            
 HOUSE BILL 549                                                                
 "An Act relating to partnerships; and providing for an effective              
      - HB 549 MOVED FROM COMMITTEE                                            
 SENATE BILL 211                                                               
 "An Act relating to sexual assault and sexual abuse; and relating             
 to endangering the welfare of vulnerable adults."                             
      - CSSB 211(RLS) MOVED FROM COMMITTEE                                     
 SENATE BILL 268                                                               
 "An Act relating to release before trial in cases involving                   
 alcohol, controlled substances, imitation controlled substances,              
 stalking, or domestic violence."                                              
      - CSSB 268(JUD) MOVED FROM COMMITTEE                                     
 PREVIOUS ACTION                                                               
 BILL:  HB 549                                                               
 SHORT TITLE: LIMITED LIABILITY PARTNERSHIPS                                   
 SPONSOR(S): JUDICIARY BY REQUEST                                              
 JRN-DATE     JRN-PG             ACTION                                        
 04/03/96      3617    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/03/96      3618    (H)   JUDICIARY, L&C, FINANCE                           
 04/10/96              (H)   JUD AT  1:00 PM CAPITOL 120                       
 BILL:  SB 211                                                               
 SPONSOR(S): SENATOR(S)                                                        
 Taylor,Leman,Kelly,Torgerson,Sharp,Zharoff; REPRESENTATIVE(S)                 
 JRN-DATE     JRN-PG             ACTION                                        
 01/10/96      2096    (S)   READ THE FIRST TIME - REFERRAL(S)                 
 01/10/96      2096    (S)   STA, JUD                                          
 03/07/96              (S)   STA AT  3:30 PM BELTZ ROOM 211                    
 03/07/96              (S)   MINUTE(STA)                                       
 03/11/96      2685    (S)   STA RPT  CS  4DP          NEW TITLE               
 03/11/96      2685    (S)   ZERO FN TO SB & CS (ADM, CORR, LAW)               
 03/20/96              (S)   JUD AT  1:40 PM BELTZ ROOM 211                    
 03/20/96              (S)   MINUTE(JUD)                                       
 03/22/96      2831    (S)   JUD RPT  5DP (STA)CS                              
 03/22/96      2831    (S)   ZERO FISCAL NOTE TO CS (DPS)                      
 03/22/96      2831    (S)   PREVIOUS ZERO FNS (ADM, CORR, LAW)                
 03/27/96              (S)   RLS AT 12:00 PM FAHRENKAMP RM 203                 
 04/02/96      3014    (S)   RULES RPT CS & CALENDAR 4/2  NEW TITLE            
 04/02/96      3014    (S)   PREVIOUS ZERO FNS (DPS, ADM, CORR, LAW)           
 04/02/96      3023    (S)   READ THE SECOND TIME                              
 04/02/96      3023    (S)   RLS  CS ADOPTED UNAN CONSENT                      
 04/02/96      3023    (S)   COSPONSOR(S):  SALO, PEARCE, LINCOLN,             
 04/02/96      3023    (S)   DONLEY, PHILLIPS, DUNCAN, TAYLOR,                 
 04/02/96      3023    (S)   LEMAN, KELLY, TORGERSON, SHARP, ZHAROFF           
 04/02/96      3023    (S)   THIRD READING 4/3 CALENDAR                        
 04/03/96              (H)   JUD AT  1:00 PM CAPITOL 120                       
 04/03/96      3050    (S)   READ THE THIRD TIME  CSSB 211(RLS)                
 04/03/96      3050    (S)   PASSED Y19 N- E1                                  
 04/03/96      3050    (S)   Halford  NOTICE OF RECONSIDERATION                
 04/04/96      3067    (S)   RECON TAKEN UP - IN THIRD READING                 
 04/04/96      3067    (S)   RETURN TO 2ND RDG FOR AM 1  UNAN                  
 04/04/96      3067    (S)   AM NO  1     ADOPTED Y15 N1 E3 A1                 
 04/04/96      3069    (S)   AUTOMATICALLY IN THIRD READING                    
 04/04/96      3069    (S)   PASSED ON RECONSIDERATION Y16 N- E3 A1            
 04/04/96      3071    (S)   TRANSMITTED TO (H)                                
 04/09/96      3659    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/09/96      3659    (H)   JUDICIARY                                         
 04/09/96      3668    (H)   CROSS SPONSOR(S): ROBINSON                        
 04/10/96              (H)   JUD AT  1:00 PM CAPITOL 120                       
 BILL:  SB 268                                                               
 SPONSOR(S): SENATOR(S) LEMAN                                                  
 JRN-DATE     JRN-PG             ACTION                                        
 02/07/96      2325    (S)   READ THE FIRST TIME - REFERRAL(S)                 
 02/07/96      2325    (S)   JUDICIARY                                         
 03/13/96              (S)   JUD AT  1:30 PM BELTZ ROOM 211                    
 03/13/96              (S)   MINUTE(JUD)                                       
 03/13/96              (S)   MINUTE(JUD)                                       
 03/20/96              (S)   JUD AT  1:40 PM BELTZ ROOM 211                    
 03/20/96              (S)   MINUTE(JUD)                                       
 03/22/96              (S)   MINUTE(JUD)                                       
 03/25/96              (S)   MINUTE(JUD)                                       
 03/29/96      2964    (S)   JUD RPT  CS  2DP 3NR      NEW TITLE               
 03/29/96      2964    (S)   ZERO FISCAL NOTE TO SB & CS (COURT)               
 04/01/96              (S)   RLS AT 12:25 PM FAHRENKAMP RM 203                 
 04/01/96      2991    (S)   ZERO FN TO CS (CORR)                              
 04/02/96      3011    (S)   ZERO FNS TO CS (LAW, DPS)                         
 04/02/96      3014    (S)   RULES TO CALENDAR  4/2/96                         
 04/02/96      3026    (S)   READ THE SECOND TIME                              
 04/02/96      3026    (S)   MOTION TO ADOPT JUD CS                            
 04/02/96      3026    (S)   JUD  CS ADOPTED UNAN CONSENT                      
 04/02/96      3026    (S)   AM NO  1     MOVED BY ADAMS                       
 04/02/96      3027    (S)   AM NO  1     ADOPTED UNAN CONSENT                 
 04/02/96      3027    (S)   ADVANCED TO THIRD READING UNAN CONSENT            
 04/02/96      3027    (S)   READ THE THIRD TIME  CSSB 268(JUD) AM             
 04/02/96      3027    (S)   PASSED Y20 N-                                     
 04/02/96      3030    (S)   TRANSMITTED TO (H)                                
 04/03/96      3616    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/03/96      3616    (H)   JUDICIARY                                         
 04/10/96              (H)   JUD AT  1:00 PM CAPITOL 120                       
 WITNESS REGISTER                                                              
 BILL EZZELL, CPA                                                              
 Deloitte and Touche, LLP                                                      
 1900 M Street, N.W.                                                           
 Washington, D.C.                                                              
 Telephone:  (202) 955-4000                                                    
 POSITION STATEMENT:  Testified on HB 549                                      
 JOE SCHIERHORN, Vice President                                                
 (President of the Alaska Bankers Association)                                 
 Commercial Lending                                                            
 North Rim Bank                                                                
 3111 C Street                                                                 
 Anchorage, Alaska  99501                                                      
 Telephone:  (907) 562-0062                                                    
 POSITION STATEMENT:  Testified on HB 549                                      
 SENATOR JOHNNY ELLIS                                                          
 Alaska State Legislature                                                      
 State Capitol, Room 9                                                         
 Juneau, Alaska  99801-1182                                                    
 Telephone:  465-3704                                                          
 POSITION STATEMENT:  Sponsor of SB 211                                        
 JACKI ORTELLI, Representative                                                 
 Denali Center                                                                 
 Home and Community Care, Fairbanks Community Hospital                         
 License Guide Organization, Joint Commission Accredited                       
 Chairman, Long Term Care Committee for Alaska State                           
    Hosptial and Nursing Home Association (ASHNHA)                             
 1510 19th Avenue                                                              
 Fairbanks, Alaska                                                             
 Telephone:  (907) 458-5105                                                    
 POSITION STATEMENT:  Testified on SB 211                                      
 JANE ANDREEN, Executive Director                                              
 Council on Domestic Violence and Sexual Assault                               
 Box 111200                                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-4356                                                    
 POSITION STATEMENT:  Testified on SB 211 and SB 268                           
 ANNE CARPENETI, Assistant Attorney General                                    
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
 Telephone:  (907) 465-3428                                                    
 POSITION STATEMENT:  Testified on SB 211 and SB 268                           
 CONNIE SIPE, Executive Director                                               
 Division of Senior Services, Administration                                   
 3601 C Street, Suite 380                                                      
 Anchorage, Alaska  99503-5984                                                 
 Telephone:  (907) 563-5654                                                    
 POSITION STATEMENT:  Testified on SB 211                                      
 MICHAEL PAULY, Staff                                                          
 Senator Lehman                                                                
 Alaska State Legislature                                                      
 State Capitol, Room 510                                                       
 Juneau, Alaska  99501-2133                                                    
 Telephone:  (907) 465-2095                                                    
 POSITION STATEMENT:  Testified on SB 268                                      
 DON DAPCEVICH, Executive Director                                             
 Governor's Advisory Board on Alcoholism & Drug Abuse                          
 Department of Health & Social Services                                        
 P.O. Box 110607                                                               
 Juneau, Alaska  99801-0607                                                    
 Telephone:  (907) 465-2071                                                    
 POSITION STATEMENT:  Testified on SB 268                                      
 ACTION NARRATIVE                                                              
 TAPE 96-48, SIDE A                                                            
 Number 000                                                                    
 CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting            
 to order at 1:12 p.m.  Members present at the call to order were              
 Representatives Bunde, Toohey, Davis and Finkelstein.                         
 Representatives Green and Vezey arrived at their respective times;            
 1:15 p.m. and 1:19 p.m.  Representative Vezey left the committee              
 meeting at approximately 1:45 p.m. and did not return.                        
 HB 549 - LIMITED LIABILITY PARTNERSHIPS                                     
 Number 185                                                                    
 BILL EZZELL, CPA, Deloitte & Touche, LLP, testified by telephone              
 from Washington, D.C.  He currently chairs a coalition of the six             
 largest accounting firms in the United States called the                      
 Accountants Coalition.  This group formed to promote among other              
 things, the Limited Liability Partnership laws for the accounting             
 profession, as well as, other professional firms both large and               
 small.  Mr. Ezzell made reference to Mike Duffey, who was with him            
 in Washington, and Mr. Duffey is an attorney with the accounting              
 firm of Ernst & Young, LLP and has been very involved in the                  
 passage of Limited Liability Partnership (LLP) legislation around             
 the nation.                                                                   
 MR. EZZELL continued to address the Limited Liability Partnership             
 legislation before the Judiciary Committee.  The form of                      
 organization a business will operate in is one of the most                    
 important decisions that any business owner makes at the beginning            
 or during the course of business.  Several years ago many states              
 began exploring opportunities for new and existing businesses to              
 afford themselves ways to limit the personal liability of their               
 owners by using new forms of organization.  Alaska participated in            
 this process by adopting the Limited Liability Company as a form of           
 an organization previously.                                                   
 MR. EZZELL added that subsequent to the adoption of Limited                   
 Liability Companies many states have looked at and adopted Limited            
 Liability Partnership forms for business to operate under.  The               
 Limited Liability Partnership form can be a lower cost alternative            
 to a Limited Liability Company (LLC) or corporate forms of                    
 organization.  It has been viewed as a very business friendly, low            
 cost form for professional firms in particular to take advantage              
 of.  The proposed Alaska LLT law, HB 549 in it's current draft is             
 very consistent with the LLP laws which have been passed now by 40            
 states, plus the District of Columbia and Guam.  The remaining ten            
 states like Alaska has this legislation currently under                       
 MR. EZZELL stated that about the LLP itself, LLP is in fact a form            
 of general partnership, but a form which provides certain liability           
 protection to it's partners or owners.  Under a general partnership           
 all partners are jointly and severally liable for the obligations             
 of the partnership to the extent of each partner's personal assets,           
 such as houses, cars and savings accounts are available to satisfy            
 claims of a general partnership.  Under a Limited Liability                   
 Partnership, partners remain personally liable for their own acts             
 and the acts of persons they directly supervise.  The partnership             
 remains liable for it's obligations to the full extent of it's                
 assets and the capitol of the various partners.  The difference is            
 that partners in an LLP would not be personally liable for the                
 obligations of the LLP arising out of errors, omissions,                      
 negligence, incompetence or malfeasance committed by another                  
 partner or a representative of a partnership.                                 
 MR. EZZELL added further that one partner not having been involved            
 at all in a matter which brought a claim against the partnership              
 and should that claim be so large as to cause the bankruptcy of the           
 partnership, the partner who was personally involved would still be           
 personally liable, but other partners not personally involved would           
 not have their personal assets at risk in this form of                        
 organization.  There are other forms of organization already                  
 adopted by Alaska and other states that provide greater protection            
 for the personal assets of a business owner and more comprehensive            
 in covering actions beyond just liability claims for negligence,              
 errors and omissions mentioned previously, but also covering                  
 contractual obligations of the entity itself.  The LLP therefore              
 provides a little bit less protection than some of these other                
 forms and less protection than the LLC form of organization.                  
 MR. EZZELL offered that for professional services firms wishing to            
 practice in a more traditional partnership concept this is a good             
 marriage of the two issues of liability protection and the                    
 partnership concept of operating.  In the LLC form of organization            
 all of the owner's personal assets would be protected from any                
 claims arising out of claims against the company itself.  An owner            
 would only be exposed to the extent of their investment in the LLC.           
 This would be true for claims arising out of tort or claims which             
 are contractual in nature against the LLC.  The LLP would cover               
 claims only against the personal assets of partners not directly              
 involved.  The LLC is a little more like a corporation and                    
 therefore in terms in cost of compliance and cost of set up it's a            
 little more costly and complex to maintain and comply with the                
 various requirements of an LLC as versus an LLP.                              
 MR. EZZELL stated additionally and particularly of interest to his            
 firm and other large firms in regards to numbers of partners, an              
 LLC maybe deemed to be in effect a public company if there are more           
 than 500 partners.  Therefore, an LLC with 500 hundred or more                
 partners or owners would have to file and become a public registry            
 company with the Securities and Exchange Commission and would also            
 have to deal with the requirements of state securities regulators             
 and regulation.  Again, this would be a much more complex form of             
 operation and it's for this reason that firms have looked to the              
 LLP as an opportunity to provide a means to protect the personal              
 assets only of the partners not involved in the action giving rise            
 to the liability, but also to be able to do so in a low cost,                 
 efficient manner.                                                             
 MR. EZZELL noted that what they have found with other state's that            
 have passed LLP legislation is that many small and start up firms             
 have utilized the LLP as a very low cost means to organize and                
 start new businesses and hopefully bring new jobs into these                  
 businesses.  Many professional services firms far beyond an                   
 accounting firms, such as law firms, engineering, architectural               
 firms have found the LLT form of organization a very appealing form           
 to begin or to organize an existing business with.                            
 Number 779                                                                    
 CHAIRMAN PORTER asked about the relationship of an LLP which has              
 been founded in another state, but is doing business in Alaska                
 which does not yet have this form of organization.                            
 MR. EZZELL said that his organization as an LLP is able to practice           
 under the laws of Alaska, being domiciled in Delaware.  It's                  
 important in today's litigation environment for people when they              
 bring a lawsuit that there be consistency among the laws of the               
 various states.  An entity that practices such as his firm does in            
 a multitude of states can do so under some sense of consistent                
 application of the law in each of these states.  This removes any             
 uncertainty if there was a lawsuit brought which could bring                  
 substantial liability to a firm beyond the assets and capabilities            
 of a firm through it's insurance and equity.  The personal assets             
 of partners located in Alaska would be afforded the same                      
 protections as the personal assets of partners located in Delaware,           
 New York or any other place in the United States.                             
 Number 975                                                                    
 REPRESENTATIVE CYNTHIA TOOHEY asked if this legislation goes into             
 law would partnerships on the books now be required to change.                
 MR. EZZELL responded that it was a simple matter should a general             
 partnership desire to become a Limited Liability Partnership under            
 the Alaska law.  This company would merely register with the                  
 appropriate registering body through a simple form and typically              
 there is a filing fee.  This does not require extraordinary costs             
 or process to switch.                                                         
 Number 1050                                                                   
 REPRESENTATIVE CON BUNDE referred to the issue of a company having            
 more than 500 partners in the LLP arrangements and the possibility            
 that they would have to go public.                                            
 MR. EZZELL said that this issue was subject to some debate because            
 the ownership interest in an LLC is the same as stock ownership in            
 a corporation.  This has not been decided yet, it's something being           
 looked at in a number of states.  For his particular firm with 1500           
 partners they would prefer not to be a corporation.                           
 REPRESENTATIVE BUNDE clarified that this ramification existed for             
 the LLC, but not for the LLP.                                                 
 MR. EZZELL said that this was correct.                                        
 Number 1170                                                                   
 JOE SCHIERHORN, Vice President, Commercial Lending, North Rim Bank            
 and President of the Alaska Bankers Association testified by                  
 telephone.  He stated that he has worked over the last several                
 years with the accounting industry representatives in Alaska as the           
 representative for the bankers on this issue.  They've worked very            
 diligently and come to a good compromise between the two parties on           
 this legislation.  It represents a good form of doing business for            
 the accountants and provides them with flexibility and insulates              
 them from some liability which would allow them to further increase           
 their practice and do business across state lines in the way they             
 wish.  From the bankers perspective, they are comfortable with the            
 various insurance provisions, financial standards and all in all he           
 thought it was a good bill which provides for adequate liability              
 provisions for people using the services of accountants, as well              
 as, providing them with flexibility to do their business in Alaska.           
 REPRESENTATIVE BUNDE noted that accountants were mentioned in                 
 relation to this bill and asked if Mr. Schierhorn saw other                   
 applications for this LLP option.                                             
 Number 1299                                                                   
 MR. SCHIERHORN stated that this was certainly possible.  It's not             
 limited to accountants at all.  The accountants have been the ones            
 most prominent in using this type of business organization around             
 the country.  They and law firms are probably some of the largest             
 partnership organizations throughout the United States.  It's                 
 certainly open to other professions though.                                   
 CHAIRMAN PORTER mentioned that because the Judiciary Committee                
 dealt with the LLC legislation last year they are probably more up            
 to speed on this LLP legislation.  He had reviewed this legislation           
 beforehand and thought that there were no great concerns with it.             
 He noted that the Commerce and Economic Development Department                
 participant, Mike Monagle and the Society for CPAs, George Ellgee             
 were in attendance to answer questions.                                       
 Number 1426                                                                   
 REPRESENTATIVE BUNDE made a motion to move HB 549 from the House              
 Judiciary Committee with individual recommendations and attached              
 fiscal note.  There being no objection, it was so moved.                      
 SB 211 - VULNERABLE PEOPLE:NEGLECT/ASSAULT/ABUSE                            
 Number 1511                                                                   
 CHAIRMAN PORTER introduced Senator Johnny Ellis as sponsor of SB              
 211 to testify.                                                               
 SENATOR JOHNNY ELLIS stated that he speaks for himself and a large            
 number of senior citizens who are interested in this legislation.             
 He noted that he had read a very disturbing article in the                    
 Anchorage Daily News last year about some terrible cases of abuse             
 which were going on in a state licensed facility called Friendship            
 Home in Anchorage.  He was shocked to learn from the Department of            
 Law that they do not currently have the appropriate statutory                 
 authority to prosecute the kinds of crimes which occur to                     
 vulnerable adults in these types of facilities.                               
 SENATOR ELLIS offered that the crimes of assault and reckless                 
 endangerment in statute now do not cover neglect or many kinds of             
 abuse to vulnerable adults.  Bills have been passed before where              
 they thought these types of problems were taken care of but, this             
 bill sets out to clarify the law regarding this issue.  The                   
 definition of vulnerable adult does not include just senior                   
 citizens, but also include the developmentally disabled population            
 and mentally incapacitated adults as well.                                    
 SENATOR ELLIS noted that it is the law currently to report abuse              
 and neglect, but the law "peters" out after that.  The penalties              
 proposed in this bill would make endangering the welfare of a                 
 vulnerable adult in the first degree becomes a Class C felony                 
 punishable by a jail term of up to five years and a $50,000 fine.             
 Endangering the welfare of a vulnerable adult in the Second degree            
 would become a Class A misdemeanor with a punishable jail term of             
 up to a year and a $5,000 fine.  Senator Ellis thought that this              
 would be the "teeth," with which the law needs in order to go after           
 the people who would do vulnerable Alaskans harm.  23 other states            
 have abuse and neglect laws criminalizing these types of bad acts.            
 SENATOR ELLIS said he brings this legislation at a time when Alaska           
 has the fastest growing per capita senior citizen population in the           
 nation.  At a time when they encourage as part of state policy the            
 formation of assisted living group homes, this kind of continuum of           
 care for vulnerable adults between a time when they are no longer             
 able to live independently in their own homes to the time when they           
 go into more expensive and intensive nursing care is important.               
 Assisted living is a growth industry in the state and the state               
 licenses these facilities.  People should be able to expect that              
 when vulnerable adult family members go into these homes and a case           
 of abuse or neglect transpires that the state will have the                   
 enforcement power to at least seek justice for the wrong done.                
 Number 1665                                                                   
 REPRESENTATIVE TOOHEY asked if this legislation addressed abuses in           
 the home or in nursing home care facilities.                                  
 SENATOR ELLIS responded that this legislation addresses state                 
 licensed facilities, meaning nursing homes, assistant living homes            
 and those types of facilities for care of vulnerable adults which             
 the state has purview over.  There had been suggestions that the              
 legislation should expand to a broader application of situations              
 covered.  It would be extremely problematic if they said this                 
 applied to every care giving situation in the state or to                     
 situations which are not licensed by the state of Alaska.  He used            
 the example of someone checking in on an elderly neighbor next door           
 who could meet the definition of a vulnerable adult.  Once this               
 person is checked on in a good samaritan arrangement, if that                 
 person was never checked on again, the good samaritan might be                
 guilty of a crime of neglecting this vulnerable adult.  He added              
 that this legislation might discourage good samaritan behavior.               
 Number 1820                                                                   
 REPRESENTATIVE JOSEPH GREEN asked why a section of this legislation           
 specifically addressed situations where police officers sexually              
 abuse someone.                                                                
 SENATOR ELLIS responded that this was not an original piece of his            
 legislation.  This language was offered as an amendment by Senator            
 Halford on the floor of the Senate.  There was no objection in the            
 Senate to this amendment.  Senator Halford sought to address some             
 issues raised in a letter relating to a case which occurred on the            
 Kenai Peninsula.  This amendment strove to make more explicit in              
 the law, the responsibility of police officers and they're                    
 relationship to underage people who might be under their authority.           
 He thought it would be wise if someone else spoke to this issue               
 someone who might be more familiar with the situation as                      
 Number 1887                                                                   
 REPRESENTATIVE TOOHEY referred to a document generated by the                 
 Statewide Division of Administration which clearly showed that 76             
 percent of the abusers of vunerable adults are family members.  She           
 noted that if this 76 percent is not being addressed it should be.            
 CHAIRMAN PORTER noted that there might be a proposed amendment                
 offered to address this issue.  He asked Senator Ellis if he had              
 seen this amendment.                                                          
 SENATOR ELLIS said he had not.  He understood that a lobbyist had             
 a proposal to make an amendment.                                              
 Number 1955                                                                   
 CHAIRMAN PORTER again addressed Sections 3 and 4 dealing with                 
 sexual assault and police officers.  He stated he was offended by             
 the language and he stated if it didn't offend Senator Ellis, he              
 said he would try to convince someone here to delete it.                      
 SENATOR ELLIS said he would leave this to Chairman Porter's good              
 Number 1975                                                                   
 JACKIE ORTELLI, Representative for Denali Center; Home and                    
 Community Care, Fairbanks Community Hospital; License Guide                   
 Organization, Joint Commission Accredited; Chairman, Long Term Care           
 Committee for Alaska State Hospital and Nursing Home Association              
 (ASHNHA) testified on SB 211.  She stated that she generally                  
 supported the bill, but thought it might be too narrow.                       
 Specifically, she was concerned about families who might hire                 
 caregivers as independent contractors, they might be certified as             
 a nursing assistant or a personal care attendant.                             
 MS. ORTELLI stated that she was also concerned about independent              
 homes which might not be licensed by the state and what might be              
 going on in these home under the guise of care giving.  With this             
 in mind, she shared this information with the Alaska State Hospital           
 and Nursing Home Association when reviewing the legislation.  They            
 decided to propose an amendment which would truly looked at the               
 fact that people don't always live and stay in a nursing home.                
 They don't always live in a skilled environment.  They might                  
 eventually go back out into their communities.                                
 MS. ORTELLI believed that two pieces of this legislation needed to            
 be looked at, she noted that a person is potentially vulnerable               
 even if they don't live at Denali Center or in an unlicensed home.            
 The other forms of care giving should not be excluded from the                
 intent of this bill.  She also referenced the definition of what a            
 caregiver means.  She made the argument that a standard of care               
 should be consistent for homecare of less than tow individuals, the           
 same that she would have to report when a person is in Denali                 
 Center or in a licensed home care program, however, if someone is             
 in a home and the services are being rendered by a nurse, an aid,             
 a personal care attendant, or someone who is not associated with a            
 licensed agency, a person is still vulnerable.                                
 MS. ORTELLIS said that lastly there was a statute which talks about           
 protective services and the definition of caregiver in this statute           
 is someone who is providing care to a vulnerable adult as a result            
 of a family relationship or who has assumed responsibility for the            
 care of a vulnerable adult voluntarily, by contract, court order,             
 or is an employee of an out-of-home care facility which provides              
 care to one or more vulnerable adults.                                        
 MS. ORTELLIS stated again that she was supportive of reporting                
 abuse and of penalties to abusive situations, she just cautioned              
 that the legislation is too narrowly focused by referencing                   
 licensed facilities and vunerable people don't always live in these           
 Number 2160                                                                   
 REPRESENTATIVE BUNDE referenced the police officers clause and                
 asked about the validity of this section.                                     
 MS. ORTELLIS stated that she spoke more to the narrow scope of the            
 REPRESENTATIVE TOOHEY stated that she'd like to see physician added           
 to the list of providers outlined in the legislation.                         
 Number 2192                                                                   
 MS. ORTELLIS referred to current laws which govern nursing homes,             
 these being the OPA regulations, state statute 42 CFR and they have           
 an accountability to report whether there's a volunteer who comes             
 into their facility under an abusive situation, whether a family              
 member who walks in or a public person, whether a physician or                
 staff are abusive, so their accountability of existing abuse clause           
 includes physicians.  She spoke to the direct caregivers providing            
 service in communities that they may in all good faith want to                
 protect vulnerable adults as the intent of bill sets out to do.               
 MS. ORTELLIS went on to add that their responsibility is to report            
 abuse and until it's been determined that abuse has taken place,              
 this is called suspected abuse.  They simply report their findings,           
 they then internally do an investigation and they report to the               
 Division of Senior Services.                                                  
 Number 2252                                                                   
 CHAIRMAN PORTER asked Ms. Ortellis about the concern of checking in           
 on a next door neighbor who might become vulnerable to prosecution            
 by not following up on what was a good samaritan act.                         
 MS. ORTELLIS noted that she was looking at the caregiver directly.            
 If someone hires a caregiver in their home and the wife of the                
 vulnerable person would want to know that they could call for an              
 investigation if they need to.  She said she was not suggesting               
 that they should be everybody's keeper and to be spies, she was               
 trying to bring to the committee's attention an avenue which is not           
 included in the bill.                                                         
 CHAIRMAN PORTER wondered if she would say that someone who dropped            
 in to check on their vulnerable next door neighbor and then went on           
 a planned vacation has established some liability.                            
 MS. ORTELLIS stated that if they were working with a person in a              
 home setting and they walk into this home, they suspect abuse then            
 they're accountable to report this.                                           
 REPRESENTATIVE TOOHEY asked about a situation where the vulnerable            
 adult is being abuse by a family member, who would they report it             
 MS. ORTELLIS said that currently they report to the Division of               
 Senior Services.  Their current policy has recently been revised by           
 Division of Licensing and Certification.                                      
 Number 2398                                                                   
 JANE ANDREEN, Executive Director, Council on Domestic Violence and            
 Sexual Assault testified on SB 211.  She stated on behalf of the              
 Council that they support this bill.  She said there were questions           
 about Section 3 & 4, although the Council doesn't have an opinion             
 about these sections since they haven't had a chance to discuss               
 them.  Currently, law enforcement officers who use their position             
 of authority in committing 3rd or 4th degree child sexual abuse can           
 be charged presently.  Their initial thoughts on this was that they           
 didn't think these sections were necessary.                                   
 MS. ANDREEN stated that overall, the council thought this                     
 legislation does an excellent job in expanding sexual assault cases           
 and the definition of a caregiver who sexually abuses a vulnerable            
 adult by making it anyone who operates under license by the state.            
 MS. ANDREEN added that they support both Sections 5 and 6 with                
 vulnerable adults and the penalties for abuse.  Vulnerable adults             
 are the elderly and people who are not capable of taking care of              
 themselves.  They are subject to a greater risk of abuse in their             
 living situation, both sexually and physically.  The council feels            
 it's important to provide as much protection as possible.                     
 Number 2475                                                                   
 REPRESENTATIVE TOOHEY asked if there was any overlap of this                  
 legislation with current law.                                                 
 CHAIRMAN PORTER stated that he wanted to request that Anne                    
 Carpeneti come forward to testify on these types of questions.                
 TAPE 96-48, SIDE B                                                            
 Number 000                                                                    
 ANNE CARPENETI, Assistant Attorney General, Department of Law came            
 forward to answer questions regarding SB 211.  She responded to               
 Chairman Porter's concern of the sections of legislation dealing              
 with sexual assault by a police officer.  Ms. Carpeneti stated that           
 she had read the letter which was apparently the impetus for this             
 amendment on the Senate floor.  Right now a police officer who                
 doesn't use his or her position as a police officer as any sort of            
 position of authority or influence over a person may have sexual              
 relations with a 16 or 17 year old.  If this relationship changes             
 to a point where there is a belief a position of authority was used           
 to influence this other people, this would be prosecutable                    
 presently under Alaska statute.                                               
 Number 069                                                                    
 REPRESENTATIVE GREEN stated that he still had some concern about a            
 police officer being spelled out specifically in this legislation.            
 He asked if there was another place in law which specifically sets            
 out other professions, such as doctors, medical assistants, etc.              
 MS. CARPENETI responded that subsection A, page 3, line 6 prohibits           
 a person being 18 years of age or older to engage in sexual                   
 penetration with a person who is 16 and at least three years                  
 younger than the offender.  The offender must occupy a position of            
 authority in relation to the victim.  This position of authority is           
 defined in Alaska's statutes.                                                 
 Number 121                                                                    
 REPRESENTATIVE BUNDE made a motion to remove Sections 3 and 4 from            
 SB 211 and to renumber it according.  There being no objection, it            
 was so moved.                                                                 
 MS. CARPENETI read the definition of a position of authority which            
 currently exists in statute.  Police officers are mentioned                   
 specifically in this definition because they have a higher level of           
 responsibility when in custodial control.                                     
 Number 195                                                                    
 REPRESENTATIVE BUNDE made a motion to move amendment number 2 which           
 was offered by the Alaska State Hospital and Nursing Home                     
 Association.  (The text of this amendment can be found in the bill            
 packet.)  Chairman Porter objected for discussion purposes.                   
 SENATOR ELLIS said that this amendment was a surprise to him.  He             
 stated that he hadn't had sufficient time to review it in depth.              
 He said he sympathized with the impulse to try and cover everybody,           
 but he thought that this was problematic for legal reasons.                   
 Senator Ellis said he would defer to Ms. Carpeneti to explain these           
 problems.  He did have a proposal for expanding the coverage to               
 address some of the concerns raised.  First, Ms. Carpeneti                    
 addressed the legal issues.                                                   
 Number 254                                                                    
 MS. CARPENETI stated that she hadn't either had much time to review           
 this amendment, but her initial reaction was that this amendment              
 was too broad.  She had a policy concern that if this legislation             
 allowed for criminal sanctions that a source of care to vulnerable            
 adults would be cut off.                                                      
 REPRESENTATIVE TOOHEY made her point again about neglecting to                
 include 76 percent of these vulnerable adults situations where                
 abuse takes place in a private home which is not part of a nursing            
 home or caregiver program.  She asked if these situations might be            
 provided for in other areas of law.                                           
 MS. CARPENETI noted that these situations are not specifically                
 covered by criminal law.                                                      
 Number 351                                                                    
 CONNIE SIPE, Division of Senior Services, Department of                       
 Administration testified on SB 211.  She stated that the definition           
 of caregiver which this amendment proposes is in the civil adult              
 protective services statute passed two years ago, but it is only              
 mentioned in two places in this act and it includes volunteers,               
 family members, etc.  It is in the list of people who are both                
 required to report abuse of a vulnerable adult and by this                    
 requirement are given civil and criminal immunity for this report.            
 If the volunteer reports on a family member abusing, because they             
 are in the "required to report" section they also get the immunity.           
 This statute was written for a purpose that was to encourage                  
 reporting of abuse.  No where in the civil adult protective                   
 services statutes does it say that "this is a list of people who              
 can be charged with adult abuse."  It was written for a different             
 purpose.  She assumed that charges could be brought under assault,            
 for example, but there wasn't clarity as to whether these licensed            
 and certified professionals could be specifically prosecuted for              
 neglect, failure to support or for abandonment.                               
 CHAIRMAN PORTER asked if all of these abusers could be civilly                
 MS. SIPE noted that the civil adult protective services statute               
 doesn't have civil prosecution allowances.  If there is an                    
 allegation they can offer services, if what they find in the                  
 investigation are criminal in nature they can refer it to the                 
 District Attorney or they can sue for an injunction to keep this              
 alleged perpetrator from further exploitation.                                
 CHAIRMAN PORTER more specifically wanted to know if a family member           
 of the abused could sue civilly.                                              
 MS. CARPENETI said she would like to research this more, but                  
 assumed that someone could bring a lawsuit under the theory of                
 negligence and ask for monetary damages or an injunction.                     
 Number 490                                                                    
 SENATOR ELLIS acknowledged that there was a concern about non-                
 licensed care giving facilities, but made the argument as a balance           
 that to criminally prosecute family members for care giving would             
 create a disincentive to care for vunerable adults.  The state                
 can't afford to take care of all senior citizens and vulnerable               
 adults with government money.  Where someone is taking care of less           
 than two vulnerable adults in a private home, the state allows this           
 type of small operation without licensure.  A very simple amendment           
 would significantly expand the coverage of this bill.                         
 SENATOR ELLIS referenced page 3 of the bill on line 30 and to                 
 suggested to add the phrase "by contract" in the already existing             
 language, before the words "by authority of law."  This amendment             
 would read, "(A) by contract or by authority of law; or."  He                 
 explained that there are people in this situation who are                     
 contracting with a caregiver to provide services.  This language              
 would cover these situations.                                                 
 Number 590                                                                    
 MS. SIPE responded to a question by Representative Toohey about how           
 many adults can be cared for in a private home.   Under the                   
 assisted licensing law passed two years ago there is voluntary                
 licensure if someone as a homeowner bring one to two adults into              
 their home, who are not their relatives and care for them for                 
 money.  These providers don't have to be licensed.  If they do opt            
 to license themselves there are tax and workers compensation                  
 advantages to do so.                                                          
 SENATOR ELLIS referring back to his suggested amendment pointed out           
 that it does provide broadening of coverage and it's relatively               
 simple to do and the state allows this activity to occur and                  
 actually encourages it.  This is why they don't provide licensure.            
 This is the justification for the increased penalties and                     
 protections for vulnerable adults in licensed facilities because              
 the state has a handle on these facilities and people expect that             
 when the state licenses a facility that there will be sanctions for           
 bad acts against the relatives.  These small operations don't come            
 under the state's purview, but there is a profit motive involved,             
 they do want to encourage these types of contractual arrangements             
 outside of government financing.                                              
 Number 734                                                                    
 REPRESENTATIVE BUNDE withdrew the amendment as proposed by the                
 Alaska State Hospital and Nursing Home Association and offered the            
 amendment number 2 as outlined by Senator Ellis and additionally              
 suggested to insert this same language on page 4, line 11 as well.            
 There being no objection, it was so moved.                                    
 REPRESENTATIVE BETTYE DAVIS made a motion to move CSSB 211(RLS)               
 from the House Judiciary Committee as amended with individual                 
 recommendations and attached fiscal note.  There being no                     
 objection, it was so moved.                                                   
 Number 800                                                                    
 MS. CARPENETI made the suggestion that the language regarding                 
 sexual abuse be removed from the title since it was added at the              
 same time this bill was amended on the Senate floor, which was to             
 allow for the language regarding police officers now deleted.  It             
 was decided after some discussion that this clause did not                    
 substantially affect the intent of the legislation to warrant                 
 SB 268 - PRETRIAL RELEASE FOR CERTAIN OFFENSES                              
 MR. MICHAEL PAULY, staff to Senator Leman came forward to read the            
 sponsor statement regarding SB 268 into the record.                           
 "Mr. Chairman, Members of the Committee, for the record my name is            
 Michael Pauly, staff for Senator Leman, the sponsor of Senate Bill            
 This legislation was introduced to address the serious problem of             
 drug offenders committing additional crimes while they are out on             
 bail, awaiting trial.  The Anchorage Police Department has reported           
 numerous instances of these offenders who are released on bail                
 being arrested on the same or similar charges, even before trial              
 has occurred on the original offense.  It is our understanding that           
 other police departments in the state have experienced similar                
 Senate Bill 268 would amend Alaska statutes to require the courts             
 to consider setting specific conditions on pre-trial release.  For            
 example, the courts could set a curfew time and prohibit the                  
 defendant from associating with certain persons or visiting certain           
 places where controlled substances are known to be distributed or             
 used.  The court could prohibit the use of cellular phones and                
 other communication devices which are commonly used in the drug               
 trade.  In addition, the defendant could confined to his or her               
 residence, the defendant could be required to undergo drug or                 
 alcohol testing, or submit to police searches for controlled                  
 The violation of one or more of these conditions would be grounds             
 for bringing the defendant back into custody, and would therefore             
 empower both the courts and the police departments to protect the             
 public with these flexible conditions on pre-trial release.                   
 I want to mention that Senate Bill 268 was amended on the Senate              
 floor so that the pre-trial release conditions will also apply to             
 violations of alcoholic beverage laws.  Specifically, the amendment           
 broadens the scope of the bill to include violations of alcohol               
 license or permit requirements, and to violations of the law in               
 local option areas which have elected not to permit the sale,                 
 possession, or production of alcoholic beverages.                             
 Senate Bill 268 has been endorsed by the Municipality of Anchorage            
 and the Advisory Board on Alcoholism and Drug Abuse with the                  
 Department of Health and Social Services."                                    
 Number 1096                                                                   
 REPRESENTATIVE GREEN asked if that in current law that these                  
 restrictions cannot be imposed on probationers or that they can be            
 imposed, but they can't be verified without some other cause.                 
 MR. PAULY stated that he was not aware that it is impossible for              
 these conditions to be put forth, but the legislation does require            
 that the courts shall consider the conditions and impose one or               
 more conditions it considers reasonably necessary to protect the              
 public safety and security.  At least one of these conditions would           
 be required to be imposed as the court deems appropriate.                     
 REPRESENTATIVE GREEN wondered if this was encouraging or supporting           
 what a judge may do as opposed to them ordering a person to do                
 something.  Does this legislation change what a judge can do now.             
 MR. PAULY thought that this legislation definitely encourages a               
 judge and puts the options in statute, but it does state that one             
 or more of these conditions should be imposed.  To this extent,               
 this legislation is saying that there will be no pre-trial release            
 without some strings attached.                                                
 Number 1200                                                                   
 CHAIRMAN PORTER referred to some restrictions on page 2, line 20              
 which came out of an Anchorage case according to his recollection,            
 regarding prostitutes returning to their "corners."  As he                    
 recalled, as a result of the case decision, the court bail                    
 restriction was challenged and it was upheld.  He thought there had           
 to be additional exceptions applied to the extent that if they had            
 lawful employment in this area or it they had to travel through               
 this area to get to and from work, etc.  He asked Mr. Pauly if he             
 recalled any discussion regarding this issue.                                 
 MR. PAULY said that the language in the legislation before the                
 committee now had changed from the language in the original bill.             
 The original language was quite broad in scope, it simply said that           
 not to be present or within a designated area near certain                    
 locations.  This was where they started and this is how the                   
 language has been refined and narrowed.  Unfortunately, he was not            
 present during the discussion of this related amendment and                   
 couldn't comment specifically whether or not it was drafted to                
 address the case which Chairman Porter referred to.                           
 Number 1293                                                                   
 REPRESENTATIVE TOOHEY referred to page 2, line 18 where someone on            
 pre-trial could not be present around people who are drinking                 
 alcohol.  She used the example of a child being present at their              
 parent's home during pre-release while their parents were drinking.           
 She didn't know how picky they were going to be, but this could               
 mean having to throw out a perfectly good bottle of wine.                     
 CHAIRMAN PORTER stated that under specific situations this would be           
 MR. PAULY added that this language on alcoholic beverages was part            
 of the amendment which was introduced by Senator Adams on the                 
 Senate floor and approved.  He understood that this language was              
 added to give a judge discretion in a local option area where                 
 consumption or sale of alcohol is not permitted.  This would be a             
 legitimate condition in such a community.                                     
 Number 1383                                                                   
 CHAIRMAN PORTER generally asked about the language regarding                  
 someone who cannot engage in illegal conduct during pre-trail and             
 wondered if this could be considered double jeopardy.                         
 MR. PAULY said he was not aware as to whether this situation was              
 discussed.  He deferred to the Department of Law.                             
 Number 1445                                                                   
 DON DAPCEVICH, Executive Director, Governor's Advisory Board on               
 Alcoholism & Drug Abuse, Department of Health & Social Services               
 stated that the board supported this bill for two reasons, one, to            
 discourage illegal alcohol or illicit drug use because it is such             
 a big problem in our communities and when someone who sells drugs             
 is awaiting trial it inevitably reaches the people they try to                
 serve in a negative way.  From a treatment aspect they are                    
 concerned about this, but also they are concerned about this from             
 a prevention aspect in that there is a message to be delivered when           
 drug users are arrested and immediately are released back onto the            
 streets to sell drugs again.                                                  
 REPRESENTATIVE TOOHEY asked about someone being released who has an           
 alcohol or drug problems and would this be taken into                         
 consideration.  She noted Alaska's bad stalking murders which take            
 place during pre-trial release and 90 percent of the time these               
 perpetrators have been on alcohol.                                            
 MR. DAPCEVICH noted that the original bill as he understood it when           
 presented on the Senate side had a provision that mandated                    
 treatment.  It was withdrawn.  Their recommendation was not to                
 withdraw it, but rather require an assessment for treatment be                
 mandated as an option, but this wasn't included.                              
 Number 1622                                                                   
 REPRESENTATIVE DAVID FINKELSTEIN stated that he assumed this                  
 legislation would apply to everything in the world of drugs.  He              
 asked Mr. Dapcevich if he had any sense from his experience whether           
 this would be applied to marijuana.                                           
 MR. DAPCEVICH said he assumed and hoped that it applied to                    
 REPRESENTATIVE FINKELSTEIN asked if this was because of a fear that           
 someone would be using marijuana for a second time while they are             
 on probation.                                                                 
 MR. DAPACEVICH said that maybe this would be an issue, but the more           
 paramount issue was the sale of this marijuana.                               
 Number 1715                                                                   
 JANE ANDREEN, Executive Director, Council on Domestic Violence and            
 Sexual Assault came forward to testify and commented on Section 2             
 of the legislation which pertains to conditions to release and                
 domestic violence cases.  The Council felt that this Section                  
 strengthens the court's ability to order the necessary conditions             
 for releasing (indisc. - trailed off.)                                        
 REPRESENTATIVE FINKELSTEIN noted the terms and conditions of                  
 release under this Section and it's reference to conditions set out           
 under AS 12.30.020.  He asked what these conditions were.                     
 Number 1798                                                                   
 CHAIRMAN PORTER read these conditions regarding restrictions on               
 travel, custody, etc., outlined in AS 12.30.020.                              
 REPRESENTATIVE TOOHEY referred to the stalking provisions again.              
 If someone is stalking a victim, along with other illegal                     
 behaviors, she asked if stalking would keep these people in prison            
 CHAIRMAN PORTER said that this was not the case and cited the                 
 presumption of innocence which drives the necessity for bail in all           
 cases, including stalking.                                                    
 Number 1966                                                                   
 ANNE CARPENETI, Assistant Attorney General, Criminal Division,                
 Department of Law answered some questions which were brought up               
 during the on-going testimony.  She noted that all of these                   
 conditions in this pending legislation were discretionary, not                
 mandatory.  In terms of the alcohol treatment, they had a concern             
 about the presumption of innocence in a pre-trial release, that               
 some alcohol treatments require some degree of relinquishment of              
 fifth amendment rights to admitting problems, etc.                            
 MS. CARPENETI also addressed the double jeopardy issue.  She stated           
 that if someone broke a law while they were released on bail they             
 could be charged with this crime.  In this situation bail could be            
 denied this person, but this person could not then be charged with            
 the original charges, as well, as the crime during pre-trial                  
 Number 2090                                                                   
 REPRESENTATIVE FINKELSTEIN offered a conceptual amendment to remove           
 the simple possession of marijuana listed under schedule 6 (a) of             
 the drug categories from the bill.  He felt as though the bill was            
 great and made a lot of sense, but the one thing which doesn't fit            
 is this particular possession and the proposed penalties.  He used            
 the example of some young person charged with minor possession and            
 on pre-release not being allowed to associate with someone using              
 drugs or alcohol.  He noted statistics of Alaskans under the age of           
 thirty to some degree use marijuana, some 28 percent.  He also used           
 the argument of individuals using cellular phones for their jobs.             
 He also noted the constitutional ramifications of simple possession           
 of marijuana.                                                                 
 CHAIRMAN PORTER made the argument that these conditions outlined in           
 this present legislation were discretionary and the court will                
 consider these things when reasonably necessary.  "I doubt very               
 seriously if many courts would deem all of these things on an                 
 eighteen year old that was caught with a joint, but at the same               
 time I don't want to make an exception for an eighteen year old               
 with a joint because somebody might get the wrong impression that             
 we don't think that's a serious offense and some of us do."  He               
 guessed he would object to this amendment.                                    
 TAPE 94-49, SIDE A                                                            
 Number 043                                                                    
 CHAIRMAN PORTER requested a roll call vote.  Conceptual amendment             
 number one failed.                                                            
 REPRESENTATIVE TOOHEY made a motion to move CSSB 268(JUD) with                
 individual recommendations and attached zero fiscal notes.  There             
 being no objection, it was so moved.                                          
 CHAIRMAN PORTER adjourned the meeting at 2:47 p.m.                            

Document Name Date/Time Subjects