Legislature(1995 - 1996)
04/10/1996 01:12 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 None COMMITTEE CALENDAR HOUSE BILL 549 "An Act relating to partnerships; and providing for an effective date." - 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 SHORT TITLE: VULNERABLE PEOPLE:NEGLECT/ASSAULT/ABUSE SPONSOR(S): SENATOR(S) ELLIS,Salo,Pearce,Lincoln,Donley,R.Phillips,Duncan Taylor,Leman,Kelly,Torgerson,Sharp,Zharoff; REPRESENTATIVE(S) Robinson 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 CONSENT 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 SHORT TITLE: PRETRIAL RELEASE FOR CERTAIN OFFENSES 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 consideration. 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 referenced. 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 judgment. 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 facilities. 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 legislation. 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 to. 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 prosecuted. 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 removal. 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 268. 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 problems. 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 substances. 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 true. 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 marijuana. 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 regardless. 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 release. 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. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 2:47 p.m.