Legislature(1999 - 2000)
02/02/2000 01:41 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 2, 2000 1:41 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 253 "An Act establishing a school disciplinary and safety program; and providing for an effective date." - HEARD AND HELD HOUSE BILL NO. 190 "An Act relating to viatical settlement contracts." - MOVED CSHB 190(JUD) OUT OF COMMITTEE CS FOR SENATE BILL NO. 24(FIN) am "An Act relating to regulations; amending Rule 65, Alaska Rules of Civil Procedure; and providing for an effective date." - HEARD AND HELD PREVIOUS ACTION BILL: HB 253 SHORT TITLE: SCHOOL DISCIPLINARY AND SAFETY PROGRAM Jrn-Date Jrn-Page Action 5/19/99 1653 (H) READ THE FIRST TIME - REFERRAL(S) 5/19/99 1653 (H) HES 1/18/00 (H) HES AT 3:00 PM CAPITOL 106 1/18/00 (H) Heard & Held 1/18/00 (H) MINUTE(HES) 1/20/00 (H) HES AT 3:00 PM CAPITOL 106 1/20/00 (H) Moved CSHB 253(HES) Out of Committee 1/20/00 (H) MINUTE(HES) 1/21/00 1951 (H) HES RPT CS(HES) NT 4DP 1/21/00 1952 (H) DP: GREEN, DYSON, COGHILL, WHITAKER 1/21/00 1952 (H) ZERO FISCAL NOTE (DOE) 1/21/00 1952 (H) JUD REFERRAL ADDED AFTER HES 1/21/00 1952 (H) REFERRED TO JUDICIARY 1/21/00 1976 (H) COSPONSOR(S): WHITAKER 2/02/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 190 SHORT TITLE: VIATICAL SETTLEMENTS Jrn-Date Jrn-Page Action 4/13/99 794 (H) READ THE FIRST TIME - REFERRAL(S) 4/13/99 794 (H) L&C, JUD 4/19/99 (H) L&C AT 3:15 PM CAPITOL 17 4/19/99 (H) HEARD AND HELD 4/19/99 (H) MINUTE(L&C) 10/21/99 (H) L&C AT 1:30 PM ANCHORAGE LIO 10/21/99 (H) MINUTE(L&C) 1/14/00 (H) L&C AT 3:15 PM CAPITOL 17 BILL HEARING POSTPONED 1/19/00 (H) L&C AT 3:15 PM CAPITOL 17 1/19/00 (H) Heard & Held 1/19/00 (H) MINUTE(L&C) 1/24/00 (H) L&C AT 3:15 PM CAPITOL 17 1/24/00 (H) Moved CSHB 190(L&C) Out of Committee 1/24/00 (H) MINUTE(L&C) 1/26/00 2005 (H) L&C RPT CS(L&C) NT 2DP 5NR 1/26/00 2005 (H) DP: HARRIS, ROKEBERG; NR: HALCRO, 1/26/00 2005 (H) SANDERS, BRICE, CISSNA, MURKOWSKI 1/26/00 2005 (H) 2 ZERO FISCAL NOTES (DCED, H.L&C/DCED) 1/26/00 2005 (H) REFERRED TO JUDICIARY 1/31/00 (H) JUD AT 1:00 PM CAPITOL 120 1/31/00 (H) Heard & Held 1/31/00 (H) MINUTE(JUD) 2/02/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: SB 24 SHORT TITLE: REGULATIONS: ADOPTION & JUDICIAL REVIEW Jrn-Date Jrn-Page Action 1/08/99 20 (S) PREFILE RELEASED - 1/8/99 1/19/99 20 (S) READ THE FIRST TIME - REFERRAL(S) 1/19/99 20 (S) JUD, FIN 1/29/99 (S) JUD AT 1:30 PM BELTZ ROOM 211 1/29/99 (S) HEARD AND HELD 1/29/99 (S) MINUTE(JUD) 2/08/99 (S) JUD AT 1:30 PM BELTZ ROOM 211 2/08/99 (S) HEARD AND HELD 2/08/99 (S) MINUTE(JUD) 2/10/99 (S) JUD AT 1:30 PM BELTZ ROOM 211 2/10/99 (S) SCHEDULED BUT NOT HEARD 2/22/99 (S) JUD AT 1:30 PM BELTZ ROOM 211 2/22/99 (S) MOVED CS (JUD) OUT OF COMMITTEE 2/22/99 (S) MINUTE(JUD) 2/23/99 338 (S) JUD RPT CS 2DP 2NR NEW TITLE 2/23/99 338 (S) DP: HALFORD, DONLEY; NR:TORGERSON, ELLIS 2/23/99 338 (S) FISCAL NOTES (DOT, DPS, DHSS, 2/23/99 338 (S) DNR, REV, LAW, F&G, ADM, LABOR-6, DEC, 2/23/99 338 (S) DOE, DCED-3, GOV-2, COURT) 2/23/99 338 (S) ZERO FISCAL NOTES (DPS, 2/23/99 338 (S) LABOR, DCRA) 3/05/99 423 (S) FISCAL NOTES TO CS (GOV, DCED, 3/05/99 423 (S) DOE-2, DEC, F&G, DHSS, LABOR, LAW, 3/05/99 423 (S) DNR, DPS, REV, DOT, COURT) 3/05/99 423 (S) PREVIOUS FN APPLIES TO CS (GOV) 3/05/99 423 (S) INDETERMINATE FN TO CS (ADM) 3/05/99 423 (S) ZERO FN TO CS (F&G) 3/09/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/09/99 (S) HEARD AND HELD 3/09/99 (S) MINUTE(FIN) 3/18/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/18/99 (S) MINUTE(FIN) 3/22/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/22/99 (S) SCHEDULED BUT NOT HEARD 3/24/99 (S) FIN AT 6:00 PM SENATE FINANCE 532 3/24/99 (S) MINUTE(FIN) 3/29/99 (S) FIN AT 8:00 AM SENATE FINANCE 532 3/29/99 (S) HEARD AND HELD 3/29/99 (S) MINUTE(FIN) 3/31/99 (S) FIN AT 6:00 PM SENATE FINANCE 532 3/31/99 (S) MOVED CS(FIN) OUT OF COMMITTEE 3/31/99 (S) MINUTE(FIN) 4/01/99 767 (S) FIN RPT CS 3DP 4NR NEW TITLE 4/01/99 767 (S) DP: TORGERSON, PARNELL, DONLEY 4/01/99 767 (S) NR: GREEN, PETE KELLY, LEMAN, WILKEN 4/06/99 (S) RLS AT 3:30 PM FAHRENKAMP 203 4/06/99 (S) MINUTE(RLS) 4/06/99 793 (S) FNS TO CS (S.FIN/DNR, DEC, F&G, LAW) 4/06/99 793 (S) INDETERMINATE FN TO CS (COURT) 4/08/99 821 (S) ZERO FISCAL NOTES TO CS (GOV-2) 4/13/99 (S) RLS AT 11:40 AM FAHRENKAMP 203 4/13/99 (S) MINUTE(RLS) 4/14/99 915 (S) RULES TO CALENDAR 1DNP 4/14/99 4/14/99 916 (S) READ THE SECOND TIME 4/14/99 916 (S) FIN CS ADOPTED UNAN CONSENT 4/14/99 917 (S) AM NO 1 ADOPTED UNAN CONSENT 4/14/99 917 (S) ADVANCED TO THIRD READING UNAN CONSENT 4/14/99 917 (S) READ THE THIRD TIME CSSB 24(FIN) AM 4/14/99 918 (S) PASSED Y14 N5 E1 4/14/99 918 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 4/14/99 918 (S) COURT RULE(S) SAME AS PASSAGE 4/14/99 918 (S) ELLIS NOTICE OF RECONSIDERATION 4/15/99 936 (S) RECONSIDERATION NOT TAKEN UP 4/15/99 936 (S) TRANSMITTED TO (H) 4/16/99 839 (H) READ THE FIRST TIME - REFERRAL(S) 4/16/99 839 (H) JUD, FIN 1/28/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL HEARING POSTPONED TO 2/2/00 2/02/00 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE FRED DYSON Alaska State Legislature Capitol Building, Room 104 Juneau, Alaska 99801 POSITION STATEMENT: Sponsor of HB 253. CHRIS BISHOP, Student Juneau-Douglas High School (No address provided) POSITION STATEMENT: Testified on original version of HB 253 and answered questions. JOSIE WRIGHT, Student Juneau-Douglas High School (No address provided) POSITION STATEMENT: Testified on original version of HB 253 and answered questions. KATHI GILLESPIE, Legislative Co-Chair Anchorage School Board Anchorage School District 4600 DeBarr Road Anchorage, Alaska 99519 POSITION STATEMENT: On behalf of the school district and school board, testified that although the purpose of HB 253 is admirable, the district cannot support its passage in the present form. FAY NIETO PARENTS, Inc. 4743 East Northern Lights Boulevard Anchorage, Alaska 99508 POSITION STATEMENT: Testified on HB 253. J. BRIEN O'CALLAGHAN, Ph.D. (No address provided) Bethel, Connecticut POSITION STATEMENT: Testified on HB 253. BOB LOHR, Director Division of Insurance Department of Community and Economic Development P.O. Box 110805 Juneau, Alaska 99811-0805 POSITION STATEMENT: Testified on HB 190, Version N. LESIL MCGUIRE, Legislative Assistant to Representative Pete Kott and Committee Aide, House Judiciary Standing Committee Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 POSITION STATEMENT: Explained changes in HB 190, Version N. KATY CAMPBELL, Actuary L/H Division of Insurance Department of Community and Economic Development P.O. Box 110805 Juneau, Alaska 99811-0805 POSITION STATEMENT: Commented on Conceptual Amendment 1 to HB 190, Version N. VINCE USERA, Senior Securities Examiner Division of Banking, Securities and Corporations Department of Community and Economic Development P.O. Box 110807 Juneau, Alaska 99811-0807 POSITION STATEMENT: Commented on Conceptual Amendment 2 to HB 190, Version N. JOHN REGITANO, Director of Planning Family Centered Services of Alaska 2826 Totem Drive Fairbanks, Alaska 99709 POSITION STATEMENT: Testified in support of discussion of school safety and violence but in opposition to HB 253 in its present form. SENATOR DAVE DONLEY Alaska State Legislature Capitol Building, Room 508 Juneau, Alaska 99801 POSITION STATEMENT: As sponsor of SB 24, explained background and intent of Version P. HANS NEIDIG, Legislative Administrative Assistant to Senator Dave Donley Alaska State Legislature Capitol Building, Room 508 Juneau, Alaska 99801 POSITION STATEMENT: Answered questions on SB 24, Version P. CHRISTOPHER KENNEDY, Assistant Attorney General Civil Division (Anchorage) Environmental Section Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 POSITION STATEMENT: Discussed concerns and provided suggestions for SB 24, Version P. PAMELA LaBOLLE, President Alaska State Chamber of Commerce 217 Second Street, Suite 201 Juneau, Alaska 99801 POSITION STATEMENT: Testified on SB 24, Version P, that she is pleased to see the bill in its present form. RICHARD HARRIS, Senior Vice President Natural Resources Sealaska Corporation One Sealaska Plaza Juneau, Alaska 99801 POSITION STATEMENT: Answered question about Forest Practices Act relating to SB 24, Version P. ACTION NARRATIVE TAPE 00-7, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:41 p.m. Members present at the call to order were Representatives Kott, Green, Rokeberg and James. Representatives Croft, Murkowski and Kerttula arrived as the meeting was in progress. HB 253 - SCHOOL DISCIPLINARY AND SAFETY PROGRAM CHAIRMAN KOTT announced that first on the agenda would be HOUSE BILL NO. 253, "An Act establishing a school disciplinary and safety program; and providing for an effective date." Before the committee was CSHB 253(HES). Number 0087 REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor, came forward to present the bill, noting that he had requested its referral to the current committee. He pointed out that students attending the hearing had taken this bill up as a project. REPRESENTATIVE DYSON explained that the bill was prompted by several incidents. First, a friend with a Ph.D. in education, while visiting an Alaskan school, had observed teachers being addressed with "the 'f' word" an average of 4.5 times an hour; when she asked why the teachers put up with it, the response was, "Well, the administration won't back us up if we do anything, and the job pays good, and not too long until retirement." REPRESENTATIVE DYSON next recalled that while working in a rural district, he had asked the principal about the existence of child sexual abuse problems, which the principal had confirmed. When asked what they were doing about it, however, the principal had replied, "We're doing absolutely nothing; the last teacher here that reported child sexual abuse was out of a job in five and a half hours." The principal had said that person was probably the best young teacher she'd ever had the privilege of supervising. Number 0250 REPRESENTATIVE DYSON also reported that last spring a woman had walked into a classroom to find the class being somewhat terrorized by a student with a replica handgun. She got the student out of class and to the principal, but the student was back in class the next period for her husband's class. Both teachers felt that was inappropriate. Subsequently, they were harassed. Their car was vandalized, and windows were broken in their house. After the state troopers told them they probably could not be safe if they stayed in the village, the teachers resigned and left. As it turns out, the student was related to a school board member. REPRESENTATIVE DYSON said that prompted him to think about how to have community-backed behavior and safety standards in a school, and how to protect teachers against retribution when they enforce the agreed-upon behavior and safety standards and follow the agreed-upon disciplinary procedures. The bill requires each district to go through whatever process they are comfortable with to get community buy-in on behavior and safety standards, and to have a disciplinary procedure in place. It also makes it a crime for a teacher to be punished who has enforced those standards and used that procedure. Furthermore, it clarifies that a teacher can use reasonable and appropriate force, if necessary, to protect the safety in a classroom. Number 0431 REPRESENTATIVE JAMES asked what "reasonable force" is intended to mean. REPRESENTATIVE DYSON suggested some people there could testify to that, then noted that "reasonable and appropriate" is defined in Alaska Statutes. This has nothing to do with punishing the perpetrator, he added, but only restraining one from harmful or criminal activity. REPRESENTATIVE JAMES commented that she really likes the bill. However, sometimes it is physically difficult to restrain someone, and people can get hurt. She proposed talking to Representative Dyson about it later, saying she wants to make it specific so as to avoid getting caught in a trap. REPRESENTATIVE DYSON pointed out that most school districts in Alaska train staff and teachers about what is appropriate and how to handle situations. Most junior high and secondary schools, in particular, have trained staff members that teachers and staff can call on to assist if, indeed, there is a threat to the safety of the staff and other students. Number 0553 CHAIRMAN KOTT asked Representative Dyson: When the school safety and disciplinary program is developed within a district by the individual schools, what do you foresee as the relationship between those schools and the umbrella district responsible for them? REPRESENTATIVE DYSON answered: We have been careful to not tell them what they've got to do. And in a cohesive school district, we anticipate and expect that safety and behavior standards will be consistent across the district. And it may be, in a large and scattered district, ... which has some very urban and very rural ones, that they might have slightly different behavior standards, and it might allow a little more casual atmosphere ... where there's [a] much different PTR (pupil-teacher ratio) and so on. But we expect it will be quite consistent across the district. REPRESENTATIVE DYSON noted that whatever the districts comes up with, they are required by this bill to send the Department of Education and Early Development (EED) a copy. Number 0649 CHAIRMAN KOTT referred to the forum to develop a policy for the safety and disciplinary program. He asked why the bill excludes a member from the Department of Public Safety (DPS), such as a village public safety officer (VPSO) or an Alaska State Trooper; noting that the bill deals later with "appropriate force," he suggested no one is better able to understand and apply the law. He expressed uncertainty about whether such a person would be brought in under "other members of the community," or whether the legislature should ensure that one of those individuals is present and taking part in the discussion. REPRESENTATIVE DYSON indicated Chairman Kott's suggestion would be a wise choice, and it also may be wise to have an advisory person with legal training, particularly at the school district or school board level. However, the intention is not to prescribe that but to let the community go through whatever process they feel is appropriate. He noted that in his own community, Parent Teacher Associations (PTAs) have been included, which he believes is appropriate. Number 0747 REPRESENTATIVE ROKEBERG brought attention to the statutory reference for use of reasonable and appropriate force, AS 11.81.430(a)(2). He asked whether, from testimony or the sponsor's knowledge, this allows any type of discretionary corporal punishment if approved by the local school board and principal. He also asked how the sponsor interprets the existing statute. REPRESENTATIVE DYSON replied, "We have no intention that this have anything to do with punishment here at all. That clause, using reasonable force, is only to restrain an evil process, if somebody is threatening staff or other students ...." He said they had struggled in the House Health, Education and Social Services (HHES) Committee to figure out whether there are better words. They originally had "nondeadly" in there but had removed it at the request of one school board. Representative Dyson said part of his reason for wanting the bill to come to the current committee was to see if there is a better legal term. REPRESENTATIVE DYSON acknowledged that the disciplinary procedure arrived at by a district may include some appropriate punishment, although he said he'd be very surprised if it included corporal punishment. Rather, he'd expect alternative sanctions or, in a rare case, being expelled. In his own district, the school district is clear that when misbehavior rises to the level of breaking the law, they call the police. Although he certainly would endorse that, the bill leaves the disciplinary procedure up to the individual schools. Once the school district has chosen, however, the bill prevents retribution from the school district against the teacher who enforces those agreed-upon standards and uses the agreed-upon procedure. Number 0911 REPRESENTATIVE MURKOWSKI noted that a provision in the bill says the plan is not effective until approved by the governing school district. She asked where the teeth are for enforcement once the plan actually comes into play. REPRESENTATIVE DYSON said he anticipates that it is the responsibility of the school board and it executive officer - the superintendent - to ensure that individual schools are backing up the policy and not allowing retribution against the teacher. He further anticipates that a teacher who is the victim of retribution would appeal to the superintendent and, failing that, would then call a district attorney or the police. He noted that the HHES Committee, after significant discussion, had decided the buck stops with the school board and its selected executive officer, the superintendent. The school board association has not come out against this bill, he advised the committee, although he detects a singular lack of enthusiasm. Number 1036 REPRESENTATIVE GREEN voiced his understanding that each school can have nuances within the school board's guidelines, but there may be significant differences between districts. REPRESENTATIVE DYSON affirmed that, emphasizing that every school district's plan still must be approved by the ruling body in that district. Number 1086 REPRESENTATIVE JAMES stated concern about the possible effect of the training classes on potential teachers' willingness to enter the profession. She also expressed appreciation for the direction the sponsor is going on this issue, but said she was thinking of situations involving small women teachers and big students. REPRESENTATIVE DYSON pointed out that Representative Brice had put forth a comprehensive school safety bill the previous year, which contained lots of provisions for early diagnosis, intervention and alternate sanctions, "all the things that probably most of us would like to see in the best of all worlds." Unfortunately, it had picked up an enormous fiscal note. In contrast, the single purpose of the current bill is to protect teachers who are victims of retribution for doing what is hopefully the right thing. To his belief, most school districts have some program for training personnel. As he remembers, something in the bill also says the EED is available as a resource for consulting. REPRESENTATIVE DYSON pointed out that the National Education Association (NEA), which is already involved in training members in appropriate responses, is eager to do more in partnership with local schools and school districts. He concluded, "We didn't take care of all the things it would be nice to do, to make this work - partially financial reasons, partially to allow the local districts to do whatever they wanted, as long as they got the community to buy in on what was expected." Number 1234 REPRESENTATIVE JAMES asked what happens if a school district doesn't do anything. She also asked whether this is purely voluntary. REPRESENTATIVE DYSON replied: Absolutely not. If they don't do the plan, the [EED] can withhold the state portion of their funding. And if they do do a plan, and then violate the law but with retribution against the teacher, the school board can, en masse, go to jail or can be fined up to $200,000. I would assume that either or both would get their attention. Number 1277 CHAIRMAN KOTT asked how many schools fall within the scope of the governing board within the Anchorage School District, for example, as it is the largest district in Alaska. REPRESENTATIVE DYSON recalled that it is around 50, then stated, "But they've already done it. We have, in hand, their behavior standards. I would have liked to have had a little more formal process for getting the community involved, but it was reviewed by all the PTAs." He said they hand out a handbook to every student and parent regarding what is expected of behavior and safety standards. They also have a well-thought-out disciplinary procedure, step by step, for teachers and staff to follow; that involves review and so forth. From his perspective, that district already meets the bill's criteria. However, that is only half of it. The district must also back up its teachers and not be guilty of retribution against a teacher who happens to use those standards on a politically well-connected student. Number 1355 CHAIRMAN KOTT asked if there was testimony in the HHES Committee from teachers or students about whether they believe this is a favorable approach. REPRESENTATIVE DYSON said they had heard from parents, certainly, and teachers have been pretty excited about this. He requested that Chairman Kott invite the few students remaining at the hearing to testify. CHAIRMAN KOTT announced that the committee would defer further questions of the sponsor in order to hear from students. Number 1438 CHRIS BISHOP, Student, Juneau-Douglas High School (JDHS), came forward to express concern about page 2, line 8 [of Version D, the original version of the bill], which didn't specify whether the suspension would be from a class or from the school. CHAIRMAN KOTT pointed out that the committee was addressing CSHB 253(HES), which is Version K. REPRESENTATIVE DYSON noted that Mr. Bishop was using Version D. He indicated changes already had been made because of the realization that suspension by teachers was inappropriate. He said the teacher has authority to take a student out of class, but the suspension can only happen at the principal or superintendent level. Number 1487 REPRESENTATIVE ROKEBERG asked Mr. Bishop's opinion of the bill. MR. BISHOP said he had been looking through [Version D] briefly, and his only disagreement related to his earlier point. He expounded on that, suggesting that having a teacher take disciplinary action may negate a bond with a student and result in the student having a grudge for the whole year; thus it would affect the learning environment and the learning style of a student in the classroom. Because discipline is one of the principal's responsibilities, he believes it is why so many people dislike the principal in a school. Number 1578 REPRESENTATIVE ROKEBERG asked whether Mr. Bishop has ever had a teacher who he believed was handing out punishment when it wasn't fair. And if so, does Mr. Bishop believe this bill would give that teacher too much power? MR. BISHOP answered that as long as there is no physical aspect of the punishment, he doesn't see a problem with that. Number 1638 REPRESENTATIVE JAMES said she was pleased at having Mr. Bishop sit before the committee, but troubled by the statement that students don't like principals because they have the disciplinary power. She recalled that as a student, she saw principals as people to look up to. She asked why Mr. Bishop believes children have a different attitude today. MR. BISHOP said he thinks it has to do with high school being a time when students are a bit rebellious and "have a thing for authority." REPRESENTATIVE JAMES told Mr. Bishop she believes he has his thumb on the pulse of the problem. When going to school, she wasn't rebelling against authority but respected it; that was the way she was brought up, expecting to have her own authority as an adult. However, children today aren't necessarily told to respect authority, and may make their own authority in many ways and think for themselves. She indicated that is the crux of the issue and that there is a need for balance. Number 1757 REPRESENTATIVE DYSON asked if Mr. Bishop believes it is good for the community to go through a process where parents and community members get to have input on the behavior standards that are acceptable in the school. MR. BISHOP said yes. REPRESENTATIVE DYSON asked how Mr. Bishop would react if a student were disruptive in a classroom and the teacher dealt with it, but then the principal didn't back up the teacher, and the student - because of political connections, for example - got away with things in the classroom that other students couldn't get away with. MR. BISHOP answered that it depends on the seriousness and the circumstances. Himself diagnosed with ADHD [attention deficit hyperactivity disorder], he has gone through school with an individual education plan (IEP), for example. He requested a definition of disruptive behavior. REPRESENTATIVE DYSON answered, "It seemed kind of self- explanatory, but it indeed keeps the other children from learning and the classroom process from going on." MR. BISHOP asked if he meant throwing pencils at other students, for example. REPRESENTATIVE DYSON said running up and down the aisles, hitting other kids, or dumping a lunch pail over them, for instance. MR. BISHOP said that is elementary behavior, and in high school they don't do that. REPRESENTATIVE DYSON responded, "I can tell you of high schools in this state where sexual assaults are happening virtually every day, kids are being sexually harassed with inappropriate touching, and where kids are being assaulted in the restroom, and sometimes sexually assaulted. That gets past what happened in most of the elementary schools I was in." Number 1843 MR. BISHOP explained that he had moved a lot because his father was in the United States Coast Guard. As a whole, JDHS has one of the lowest violence rates he has seen. He believes adding layers of rules increases pressure on students, who build up a grudge and no longer want to go to school. Referring to Columbine High School in Colorado, where numerous students had been shot by two fellow students, Mr. Bishop said new policies at Columbine are such that students can't bring a nail file to school without having it be considered a weapon. He believes adding dress codes or anything similar just increases frustration. Already the school is overcrowded, and "the last thing you want to do is be dumping a lot of laws," he said, concluding that letting loose the leash just a little bit longer would increase peace in the school. REPRESENTATIVE DYSON concurred. He pointed out, however, that this bill only makes sure that teachers don't get punished for doing whatever the community has agreed to. Number 1918 REPRESENTATIVE MURKOWSKI agreed that this legislation is primarily designed to provide backing to the teachers. She asked if Mr. Bishop thinks it is necessary, in order for teachers to be effective in a school, to have that backing of authority from above, whether it be from the principal, the school board or the community. She pointed out that the community would have gotten together, including the PTAs and parents, and agreed on this policy, on paper. MR. BISHOP indicated he concurred with having agreements, with the principal, for example. Number 2004 REPRESENTATIVE JAMES asked Mr. Bishop the following: What verbal or other abuse should the teacher accept without taking any action? Is disrespectful behavior acceptable? Does the teacher have no authority to send a student to the principal's office, for example, for that? And does he believe that these are things that the teacher just needs to put up with these days? MR. BISHOP, answering the final question, said yes, he does. Acknowledging that students in his generation call teachers "the 'b' word," he suggested that if teachers lightened up and didn't take as much offense, there would be a less stressful school environment, "even though it may be offending to a teacher a little." In response to a further question by Representative James regarding whether he himself would like to be a teacher, Mr. Bishop said yes. CHAIRMAN KOTT thanked Mr. Bishop for his testimony. Number 2116 JOSIE WRIGHT, Student, Juneau-Douglas High School, came forward, disagreeing that teachers should be called whatever students want. She indicated teachers give a piece of themselves, but when students mouth off to the teacher, the teacher may be discouraged. She said maybe she was brought up differently, living in a Catholic family. She believes everybody deserves respect, and that includes adults. If need be, teachers should have the right to discipline these kids. She stated, "Our generation is out of control, that's what I think. They think they can do whatever they want and they're all grown up at 14, whatever. And they're not." MS. WRIGHT referred to Version D, the original bill, recalling that it said something about students being put into a program if the student got into trouble with his or her parents or legal guardian. She asked what the plan for discipline would be if that student was age 18 or older, or emancipated. REPRESENTATIVE DYSON said that is an excellent question, but really outside of this bill. He noted that an emancipated child doesn't need parental permission, and an emancipated child over age 18 doesn't have to be in school. If their behavior doesn't meet the school's standards, the administration and the faculty could say, "You want to stay here? You need to change your behavior." Number 2239 MS. WRIGHT recalled that the bill discussed the ability to review a student's records. She asked how that would help for students who are getting into trouble for the first time. REPRESENTATIVE DYSON explained the intention. If a child who has had brushes with the law or significant behavior problems in one school gets transferred to another school, the new school should have access to knowledge of the dangerous previous behavior. That way, the school can be prepared to deal with it and perhaps get the student some help. Number 2274 MS. WRIGHT offered that JDHS could be worse. However, she doesn't agree with how the teachers are treated, and she believes they should have a certain amount of authority. Furthermore, students should realize that. She explained, "We're here to learn, and they're giving us education, when they could be at a private school and they'd be getting respected ...." Ms. Wright said students already don't respect other students. She concluded, "So when it escalates to the teachers, then what are we going to do when ... they're full adults and they're out in the world? We're going to end up having a society that's totally just down the drain." Number 2301 CHAIRMAN KOTT asked Ms. Wright, on a scale of 1 to 10, how safe she believes JDHS is from violence. MS. WRIGHT answered that they are pretty safe, perhaps a "9." There is fighting, but not so much because there are good mediation programs, which she is part of. The BASE [Behavioral and Academic Success in Education] program also helps. However, there will always be a little conflict, because not everybody gets along with everyone else. REPRESENTATIVE DYSON asked Ms. Wright whether her friends are touched inappropriately or harassed. MS. WRIGHT said yes, there is a lot of that. She explained, "You can be walking down the hallway and someone will think it's just funny to go slap somebody's butt." She added, "I'm: 'I'll break your fingers,' but that's the way I see it. If someone wants to be touched, they want to be touched. But if they don't, don't touch them." Number 2380 REPRESENTATIVE ROKEBERG agreed in terms of respect and students today. He asked, however, if Ms. Wright believes there is a need for something like a student bill of rights against "dumb rules." MS. WRIGHT answered, "No. Personally, I think that adults have the right to make rules, and we should abide by them. ... If they've grown up and they've done everything, and they've been there, done that, they know what they're doing. They're not doing it just to be mean." Number 2404 REPRESENTATIVE JAMES asked whether Ms. Wright believes that people who don't like to exercise respect for others actually don't respect themselves. MS. WRIGHT said it depends on the situation. Some people are like that, but she believes it is more the mentality nowadays, wanting one's own way, now. Students seem to be trying to take an adult role when they aren't there yet. After Representative Green commended her for her answers, she attributed them to her grandmother's influence. CHAIRMAN KOTT thanked Ms. Wright, also extending thanks to her teacher for bringing the students. He noted that Representatives Murkowski and Croft had joined the meeting some time ago. He then announced his intention of hearing testimony from people waiting on teleconference. TAPE 00-7, SIDE B Number 0009 KATHI GILLESPIE, Legislative Co-Chair, Anchorage School Board, Anchorage School District, specified that her testimony via teleconference from Anchorage was on behalf of both the district and the school board. Paraphrasing written testimony provided by fax following the hearing, she stated the following: While we believe the purpose of this bill is admirable, the Anchorage School District cannot support passage of this bill in its present form. We do have serious legal and procedural concerns about it. Schools have a pronounced interest in developing and enforcing school disciplinary policies. Courts and educations experts have repeatedly recognized that a strong instructional program is dependent upon effective student discipline. However, courts have also recognized that an indispensable element of effective student discipline is allowing school officials discretion in matters of student discipline. Frankly, the fertile adolescent mind makes it impossible for school officials to anticipate every possible action that disrupts the educational environment. Consequently, student conduct codes cannot be effective when they are forced to comport with specific legislative mandates. An example of this, in this particular bill, is the use of the term "understood" in HB 253, in the context of schools, that they must adopt community-based standards which are "understood by students, parents, teachers, school administrators, and the community." At present, students are only required to be on "notice" of school disciplinary regulations. The regulations are available to students, and they choose to ignore them. If they do, they cannot argue that they were unaware of the conduct in question, that it was prohibited. HB 253 changes that. The bill provides that schools must draft community-based standards which are "understood" by "students, parents, teachers, school administrators, and the community." The term "understood" carries a specific meaning that implies comprehension, discernment and mutual agreement. The Alaska Supreme Court has determined that words in statute will be interpreted in that form in which they occur in most common usage. In its common usage, the term "understood" implies comprehension, discernment and mutual agreement. It also implies a specific interpretation, as this is my understanding of the matter. Requiring student "understanding" is far beyond simply placing a student on "notice" of school rules. The student must comprehend and accept the school rule. Consequently, this will result in every student who faces discipline having a new first bite at overturning discipline by arguing that they did not "understand" the rule in question. Further, districts will be unable to discipline students for actions which are not specifically prohibited under the school disciplinary code, as one can scarcely "understand" a rule that is not specifically stated. While this may not sound unreasonable to grown adults accustomed to thinking [of prohibited] conduct in terms of criminal statute, it takes on a completely different meaning in schools. As I mentioned earlier, courts have recognized that schools cannot anticipate every action students will take which is disruptive or dangerous. The requirement that students "understand" all school rules would result in a very real consequence that students would escape punishment due to the fact that there was not a preexisting rule on the books. The use of "understood" is just one example. A similar case could be made for the terms "reasonable and appropriate force" and "maintaining school discipline." Advocates for students facing discipline will make much out of these legally ambiguous terms. Number 0147 Another problem with this bill is the mandatory criminal sanctions for school board members who allow a teacher to be disciplined for actions taken under this bill. As a general matter, the people of the state of Alaska expect efficient, unflinching leadership from their governmental officials, including school board members. As long as officials are acting in good faith, the public has a right to expect decisive leadership. This bill would stifle that leadership. An analogy can be drawn to the qualified tort immunity for public officials acting in their official capacity. The Alaska Supreme Court has declared that the only way the public can expect its officials to fulfill the requirements of their offices is if they have tort immunity for official actions as long as they are acting in good faith and in a nonmalicious manner. Otherwise, officials would be reasonably afraid to act, due to the specter of tort liability for their actions. HB 253 would take it even a step further. Under this bill, it does not matter whether school officials act in good faith. They would be guilty of criminal misconduct if they allow a teacher to receive adverse personnel action for disciplining a student under this bill. This becomes even more unfortunate given the language interpretation and judgment calls required by this bill. Under ... this bill, teachers may use "reasonable and appropriate force" to maintain ... "classroom discipline." Should a teacher use force on a student in the name of preserving classroom discipline, and the board later sanction the teacher for this action, the board has exposed itself to criminal liability. If a court later determines that the teacher's action could have been defensible under the bill, the board is guilty - not charged with, but guilty - of committing a crime. This bill could easily result in boards rubber- stamping teachers' disciplinary decisions, regardless of the [egregiousness] of the teacher's actions. Schools do need support from parents and community members in ensuring effective discipline. However, this bill is not the way to ensure that support. CHAIRMAN KOTT requested that Ms. Gillespie fax the committee a copy of her testimony. Number 0238 REPRESENTATIVE MURKOWSKI noted that the Anchorage School District (ASD) has a disciplinary and school safety policy; every year they pass out the handbook to parents through the students. She asked whether the policy in place now is that much different from what Representative Dyson is trying to get to. MS. GILLESPIE said she believes it is a matter of who has the authority to develop and pass the policy. "We've been elected to represent the community," she explained. "The school board discusses, in house with the administration, what the concerns are as far as student safety. We listen to teachers and students. But ... it is ... ultimately our responsibility to decide on what the policy is." Ms. Gillespie indicated the district has an overall policy, interpreted differently in different schools. She would hate to "criminalize" school board members because of a difference in interpretation of the rules when a child moved from one junior high school to another, for example. She believes the bill is fraught with the potential for teachers, students and parents to take school districts to court. She continued: We already, I think, are doing a fair job in maintaining school discipline. That's our job. That's what we were elected to do. I believe that decisions are best made closest to where those decisions are implemented. Personally, I see no need for the criminalization of school board members in order to protect teachers. I'm also concerned about the influence that different groups might have over school policy. I'm also concerned about whether or not there's a due process for students and an appeal process for students [that] would be outside the court. ... As far as the Anchorage School District, we've spent enough time in court already. We don't need to have to defend school policy in every instance, in every school, in front of a judge. And I believe that this certainly would lend itself to that potential. Number 0358 REPRESENTATIVE MURKOWSKI noted that elementary schools have different concerns and problems than secondary schools have. She asked whether it is accurate to say that individual schools in the ASD don't have input into the school discipline or safety policies set by the school board. MS. GILLESPIE replied at length: We have different levels of policies. We have our student rights and responsibilities, and that's kind of an overall umbrella of what the school rules are. And as I think you mentioned before, that is a document that is interpreted by different levels. We have a high school document, a middle school document, and an elementary document. ... We put out the elementary document because the kids would never understand the rules as they're written, ... almost in adult legal language for our high school students. And so that is a difference in interpretation there. So we have the overall student rights and responsibilities, but then we have very diverse school populations. We have the kids over at Polaris and Steller, who get up in the middle of a class and walk out and get a Coke, and the teachers have no problem with that; they come back in, they come and go as they please. We have other schools, like in Chugiak, ... where that is not acceptable behavior. So we have district rules, we have school rules, and in many teachers' classrooms, they come up with their own rules. If you talk to high school kids, they'll say, "I can chew gum in Mrs. Smith's class, but I can't chew gum in Mr. Jones's class." ... We need to have some flexibility here ... in our diverse student populations and how they interpret the rules. And if [we] are then going to be forced to defend ... the implementation of specific rules and standards of behavior, I just think it would be unwieldy. ... It's working now in our school district. There may be the unique situations in some other school districts. And from time to time, we have problems in the Anchorage School District. But there's a couple of ways to address those problems. There's a grievance process that union members have if they feel like they're not being upheld; and it's written in their contracts that we will uphold ... those school policies and school rules. There's also an appeal process that students and parents have, if they feel ... they weren't given due process at the school level. ... Criminalizing school board members for not enforcing rules that would have to be standardized for every school ... I think would be a step in the wrong direction. I don't believe, from my perspective, that this would lend itself to the ability for different schools to develop their own disciplinary procedures. If I'm going to be fined ... $200,000 and potentially taken to jail, those schools will all have the same rules. They will not have different rules, because there's no way that I can know, in 86 schools in the Anchorage School District, what the specific rules are for each school. I just think it would be an administrative nightmare, and I don't think it's necessary. Number 0513 REPRESENTATIVE ROKEBERG expressed interest in seeing not only Ms. Gillespie's testimony but also an outline of the ASD's current program, including the three different sets of rules. MS. GILLESPIE agreed to that. REPRESENTATIVE ROKEBERG asked whether the ASD has a student bill of rights or spells out what students can expect from the district, schools and teachers. MS. GILLESPIE restated that they annually adopt the student rights and responsibilities; the document says, essentially, "You have a right to due process, but these are the rules we expect you to follow." There isn't a specific student bill of rights. She added, "We expect the kids in the Anchorage School District to follow the rules that are set out by the district, by their school, and by their teachers in the classroom." Number 0599 REPRESENTATIVE GREEN requested clarification. On the one hand, Ms. Gillespie was suggesting there would be a problem in the students' understanding, and yet there is a set of rules that the ASD expects the students to abide by and understand. MS. GILLESPIE responded: The difference is that you're not criminalizing school board members for not enforcing rules at the district level, school level, and classroom level. We have kids, as you well know, that are very transient in the Anchorage School District. Some of these kids move around from school to school, ... maybe five or six different times. And it is very difficult for them to know what the particular classroom rules are. But we do have an overriding set of rules for the Anchorage School District; those are district rules. Each school has a little bit different interpretation of that. What I'm saying is that kids do have a hard time finding out what the rules are in a new teacher's classroom, in a new school, what the interpretation of the school culture is. The difference in this bill is that if a child who is transferring from school to school ... does not understand the rules, and a teacher ... makes some sort of an arbitrary decision that the child should be punished, there's no "wiggle room" for us to step in there and say, "This is a child who has special education issues. This is a child who has a different cultural background. This is a kid who doesn't speak English." The way this bill is written, if we don't enforce that specific rule, we could be sent to jail. We can be fined $200,000. We have to have flexibility in order to work with the different populations .... That's why those decisions are best made at the local level. That's why local patrol is so important to the Association of Alaska School Boards and to the Anchorage School Board. We feel like we're in the best place to make those decisions. If the community doesn't think we're upholding the safety standards that they want, they have every right to recall us or to vote us out at the next election. That's the proper place, I think, for those decisions to be made. Number 0716 REPRESENTATIVE GREEN pointed out that the basic underlying premise of the bill, as he understands it, is that the school district will have the right to say whether any particular programs passes muster; he doesn't see a big problem of students and teachers not really understanding a particular school policy so long as it does so. He suggested the overriding fear of litigation may be influencing the concern about the students' understanding. He proposed laying aside concern about the former for now. MS. GILLESPIE responded: Who is responsible for the kids' behavior? And who should bear the consequences of the kids' bad behavior? The school board and the superintendent don't sit in every classroom in the district. If there is a discipline incident in a classroom in the district, we're not there when it happens. We're not there when the teacher ... makes the complaint to the principal. If the principal ... doesn't uphold the decision or somehow misinterprets what the policy is, ... it's not the principal who's sanctioned; it's the school board and the superintendent .... The accountability piece, I think, is being misplaced. It sounds like a good idea. And certainly we all support school safety. But the question is: Who is in the best [position] to make those rules and to enforce those rules? ... I don't think that criminalizing school board members and superintendents, who are not sitting there in the classroom in the district, is the way to approach this. Number 0836 REPRESENTATIVE DYSON called attention to subsection (c), found on page 3, lines 13 through 16, of CSHB 253(HES), which read: (c) If a member of the governing body of a school district knowingly allows a teacher, a teacher's assistant, a principal, or another person responsible for students to be terminated or punished in violation of (a) of this section, the member is guilty of a class A misdemeanor. He stated the intention, which he believes is clear, that the only reason a school board would be subject to sanctions under this is if they terminated or punished a teacher who had followed the pre-agreed behavior standards and disciplinary procedures. There is nothing here about the school board having responsibility for class discipline, he pointed out, only for approving the plan. The school board only gets in trouble if they inappropriately punish a teacher or don't back up the teacher here. MS. GILLESPIE said she doesn't believe she has any problem with "terminated" because the superintendent and the school board would approve that termination. The problem is how to interpret "punished." For example, a teacher puts a child out of the room for some supposed infraction of the rules, and the principal calls the parents and then sends the child back to the classroom. If the teacher doesn't want the child back in the classroom, or if there is a dispute over how to enforce a particular rule, how should "punished in violation" be interpreted? Is "punished" sending the student back to the room? Ms. Gillespie said she thinks it is too broad. Number 0914 REPRESENTATIVE DYSON expressed openness to having a better word. He then asked what Ms. Gillespie thinks about the school district that allowed and encouraged the community to vandalize the teachers' cars, threaten their lives, break the windows out of their house, and run them out of town. MS. GILLESPIE pointed out that it would be the same community developing the standards referenced in the bill. She suggested if students or community members act in that way, the police should get involved. REPRESENTATIVE DYSON restated the intention of having that community follow the standards they have set, whatever those are. Number 0967 REPRESENTATIVE CROFT referred to implementation, noting that at least three different legal sections overlap. He brought attention to the criminal liability for disciplining a teacher who has complied with AS 14.33.130(a), which stated: A teacher, a teacher's assistant, a principal, or another person responsible for students may not be terminated or otherwise punished for enforcement of an approved school disciplinary and safety program, including behavior standards, adopted under AS 14.33.120. He suggested one of the most important things, as he understands the intent, is on page 2, lines 24 through 26, which stated: (6) policies authorizing a teacher, teacher's assistant, or other person responsible for students to use reasonable and appropriate force to maintain classroom safety and discipline as described under AS 11.81.430(a)(2). REPRESENTATIVE CROFT called AS 11.81.430 the general provision allowing force where necessary to keep order in a classroom. He suggested it comes down to adopting standards authorizing the use of force, and making it specific from a community perspective. Explaining that he was trying to get a handle on how it might be written, he told Representative Dyson: If we adopted, as a community standard, that a teacher shall attempt to keep order without force in a classroom but may forcibly restrain a disruptive student - something as general as that, and that's our community consensus - a lot of factual disputes could come out of that description. ... Was the student being disruptive? You've used force, but it could have been appropriate or inappropriate, under the standard, depending on whether they were actually disruptive. If they used force on a nondisruptive student, it wouldn't meet the standard. And my worry - and I guess I'd like you to address it - is ... who would determine that? If a court comes in and says, "We find that the student was not disruptive; therefore, they were not following the plan; therefore, they are no longer immune," I think, or, contrary, "They were following the plan, and when the school board disciplined them, they're now liable for a class A misdemeanor," depending on what? ... The school board would make a determination about whether ... what they did fit the policy. And ... if they're wrong on their public policy call as [to] whether this fit the facts or not, they could go to jail on it, right? CHAIRMAN KOTT requested that Representative Dyson and the drafter think about it but not respond at this point, in order to hear further testimony. Number 1176 FAY NIETO, PARENTS, Inc., testified via teleconference from Anchorage, saying her organization is the training center for the State of Alaska, funded federally to provide support to parents and professionals who have children with special needs. She expressed appreciation for attention to this matter, acknowledging that violence does exist in the schools and there is a desire to protect all concerned. She asked, however, how this bill incorporates regulations finalized in 1997 for the Individuals with Disabilities Education Act (IDEA). MS. NIETO pointed out that the IDEA has rather stringent language regarding implementation of discipline policies to ensure that if a child were, in fact, experiencing a behavior outburst, there would be a need to determine whether it was a manifestation of his or her disability. That regulation has particular language regarding the period of time that the child can be out of school. It also requires positive behavioral intervention to ameliorate the troubling behavior. Ms. Nieto pointed out that these children are included in regular classrooms. However, there are times when the general education teacher is unclear that the child is on an IEP. She asked again how the federal mandates of the IDEA are incorporated into the model in CSHB 253(HES). Number 1333 REPRESENTATIVE DYSON responded that he certainly is conscious of that. He assumes every school district developing behavior and safety standards, and a disciplinary procedure, rightly would consider special provisions for children with developmental disabilities and IEPs; he suggested most districts in the state, including his own, already do that well. This bill would come into play only if the district inappropriately disciplined a teacher who was following those procedures, which would take into account the IDEA. MS. NIETO pointed out that a recent study of states' abilities to implement provisions to ensure IDEA implementation generally showed a nationwide failure to implement it effectively. Alaska also is struggling with implementation, although helped by the state's strong department of education. She voiced concern about the effects of labeling students as troublemakers because of trouble with a particular teacher; she recommended considering where that information goes, so that a student attempting to improve behavior has an opportunity to do so without carrying a negative label throughout his or her school career. MS. NIETO explained that the IDEA calls for positive behavioral intervention plans developed by local education agencies, and for teachers to be trained to implement this. Noting that teacher training in Alaska is problematic, she nonetheless suggested using education to arm teachers with effective behavioral strategies for classroom use, so they don't have to resort to physical "take-downs," which can be dangerous even when conducted by trained personnel. She urged members to look at those items in the bill. MS. NIETO pointed out that the central office of PARENTS, Inc., is in Anchorage, and offices exist statewide in Dillingham, Fairbanks, Bethel and Juneau. She offered her agency's input in locations about which the sponsor is most concerned. Number 1720 CHAIRMAN KOTT thanked Ms. Nieto and called upon Dr. O'Callaghan, whom he introduced as a family psychologist from Bethel, Connecticut, who has specialized for 35 years in the prevention and solution of child behavior problems. He said Dr. O'Callaghan consults with several school systems in Connecticut, and speaks regionally and nationally on his method of balanced parenting and school-based collaboration with families. His extensive writings include the book, "School-Based Collaboration with Families: Constructing Family-School-Agency Partnerships" [Jossey-Bass, 1993]. Number 1768 J. BRIEN O'CALLAGHAN, Ph.D., testified via teleconference from Bethel, Connecticut. He noted that Representative Dyson's office had originally contacted him through his web site, where he describes his methodology of preventing and solving child behavior problems. He pointed out that any statements he makes are within a broad context of, principally, how to prevent and solve the problems. The bill, as he reads it, is a very small part of that, focusing on protection of teachers trying to solve problems within their classrooms; he expressed support for that aspect of it. DR. O'CALLAGHAN explained that he would use a problem-solving format involving basic questions, which he uses whenever talking to someone dealing with child behavior problems. Is there a problem, despite everyone's best efforts? How serious is it, on a scale of 0 to 10? Is there a solution presently? What is the diagnosis of the behavior problem of students in schools and how schools are handling it? What is the cause? And what is the solution? Dr. O'Callaghan said HB 253 partially addresses it by trying to give more encouragement, authorization and empowerment to teachers to have some standards in the classrooms, and to implement them if there are repeated infractions from students. He lends support for that part of it. DR. O'CALLAGHAN emphasized that missing in almost all legislation nationally, and in procedures being put into school systems, is work with the parents of disruptive students. Mentioning publications of the education establishment, he said uniformly underemphasized or eliminated is training of teachers in how to talk to parents about their children and their children's behavior, and how to engage parents in a process of changing their own behavior at home. From his work over 35 years, he believes that clearly the main source of a child behavior problem in school is the home and parenting. Although he hears dozens of procedures identified by all kinds of safety organizations and experts, the one thing left out is, to him, the most important: how to deal with parents, and the training of teachers in how to do that. DR. O'CALLAGHAN specified that he supports the notion that if there is a problem, and if there is a lack of support from administrators for teachers' attempts to run an organized, safe and cooperative classroom, something should be done about it. He also expressed support for reducing litigation and avoiding unnecessary litigation. He said it really comes back to the question of whether the school boards are doing their job of supporting teachers who are trying to run safe classrooms, which is what he believes this bill mainly emphasizes. Number 2192 DR. O'CALLAGHAN listed what is missing in HB 253, in his view. First, there is no mention - at least in his copy of the bill, under disciplinary procedures or elsewhere - of the importance of teacher-student and teacher-parent communication skills as "preliminary procedures which are essential in avoiding premature suspension and physical interventions." Saying he understands that Representative Dyson had made reference to other documents and procedures that may be a matter of law, about which he himself isn't aware, he suggested perhaps those may address that concern. Second, there is no mention of parenting as the principal cause of student disruptive behavior. DR. O'CALLAGHAN noted that third, there is no mention of family and parent assessment and intervention as primary prevention and solution procedures for student disruptive behavior. Calling attention to AS 47.12.010(b), regarding the juvenile justice system, he noted that in those 14 points there is also no mention of the primary importance of family and parent assessment in preventing or solving student disruptive behavior problems. Fourth, there is no mention of teacher and all-school staff training in how to deal with disruptive students and their parents. He said he had heard many references in testimony that day, so this may be addressed elsewhere. MR. O'CALLAGHAN said fifth, the importance of training in the use of force is not stated; he noted that it had been mentioned by Representative Dyson and testifiers, and he suggested it also may be addressed elsewhere. Finally, he believes there needs to be a parenting-family expert at the core of any school implementation of this bill; in his view, there should be someone identified in any school district who is legitimately a parenting-family expert and who would help in implementing the terms of this bill. MR. O'CALLAGHAN concluded by voicing his overall concern that if parents are not sufficiently involved in disciplinary procedures, students either won't change quickly enough or won't change at all. Parents may turn on the school for unreasonable procedures, and the school may be afraid to make sufficiently strong standards for fear of parent revolt. TAPE 00-8, SIDE A CHAIRMAN KOTT thanked Dr. O'Callaghan, then indicated the committee would take up HB 253 again after 4:30 p.m. that day. HB 190 - VIATICAL SETTLEMENTS Number 0101 CHAIRMAN KOTT announced the next order of business would be HOUSE BILL NO. 190, "An Act relating to viatical settlement contracts." He noted that Bob Lohr was online from Anchorage. He asked Mr. Lohr if he had the most recent version of HB 190, Version N (1- LS0576\N, Bannister, 2/1/00). BOB LOHR, Director, Division of Insurance, Department of Community and Economic Development (DCED), speaking via teleconference from Anchorage, affirmed that. Number 0135 REPRESENTATIVE ROKEBERG made a motion to adopt Version N as a work draft. There being no objection, it was so ordered. LESIL McGUIRE, Legislative Assistant to Representative Pete Kott, and Committee Aide, House Judiciary Standing Committee, Alaska State Legislature, came forward to explain the changes made in Version N. The bill drafters had inserted changes to reflect some concerns of members last time. Two concerns needed to be addressed. The first deals with the degree of privacy afforded to the viator and the insured, as well as to a viator or an investor. The first change occurs on page 2, lines 16 through 20, subsection (e), governing privacy between the insured - the viator - and the insurance company. A sentence added at the end of subsection (e) enables the viator to waive this prohibition against disclosure if it is in writing and has been signed. MS. McGUIRE noted that the second change occurs on page 5, lines 21 through 26, which is the exact language used on page 2, lines 16 through 20. She indicated the only difference is that it governs privacy between the viator and the Department of Community and Economic Development (DCED), as well as the investor. The same waiver language is included. Page 5, lines 12 through 20, responds to a concern Representative Kerttula had with respect to buyer information. That clause is the same language that was in the original HB 190 and has been reincluded in Version N. Number 0334 REPRESENTATIVE ROKEBERG said he has been in contact with both the Division of Insurance and the Division of Banking, Securities and Corporations (DBSC), which stated they would like to make two minor technical amendments. He made a motion to adopt Conceptual Amendment 1 on page 2, line 18, deleting "name" and substituting "identity". The same change would be made on page 5, line 23. He asked Katy Campbell to comment on those changes. KATY CAMPBELL, Actuary L/H, Division of Insurance, Department of Community and Economic Development, responded that this was a discussion that took place with the National Association of Insurance Commissioners (NAIC). The concern is that other information could be given out, such as an address, that could lead to identifying an individual. She said this takes care of anything that could identify that person. MR. LOHR concurred with the amendment. CHAIRMAN KOTT asked whether there was any objection to the adoption of Conceptual Amendment 1. There being no objection, it was adopted. Number 0452 REPRESENTATIVE ROKEBERG made a motion to adopt Conceptual Amendment 2 on page 5, lines 17 through 20, which would delete all of the language after the word "includes" and substitute "state-mandated disclosure form". He asked Vince Usera to comment. VINCE USERA, Senior Securities Examiner, Division of Banking, Securities and Corporations (DBSC), Department of Community and Economic Development, explained: In our discussions, when we were dealing with our regulations, we discussed ... all provisions with the Viatical Association of America [VAA]. They registered strong disapproval of giving out ... an audited income and expense and balance statement to the investor. Now, our regulations provide they must give that to us - to the division - in order to prove that they're a going concern and that they have the wherewithal to meet their obligations. But for one, I don't think most investors really know how to read the statement properly, and, second, the Viatical Association objected strongly that that's going too far in removing their level of privacy too. REPRESENTATIVE MURKOWSKI said she understands the rationale but wonders exactly what is required by the division. Number 0593 MR. USERA replied that the division requires proof of being in business for three years, audited income and expense statements for the most recent year, and other information. The division is going to look out for the investor in that respect. "If they're a going concern, they'll get the exemption," he added. "They can go sell their product. But I don't think giving it to the investor is going to necessarily save the investor any heartache." REPRESENTATIVE MURKOWSKI referred to the proposed deletion of the provision on page 5, lines 19 through 20, regarding disclosure of any significant negative factor that may affect the outcome of an investment; she said she happens to like this provision. MR. USERA assured Representative Murkowski that this provision is still being required. REPRESENTATIVE MURKOWSKI wondered if there is any way to let the investor know. For example, if she were an investor and inquired at the division about a company, would the division tell her that there were a few black marks on the company's record? MR. USERA indicated it is unlikely the company would be given the exemption and allowed to sell here in that case, but it depends on the situation. For example, it may be a black mark that the company had overcome. He added, "We will do our job in protecting the investor, and if that requires disclosure of certain information about the company, I believe we would disclose it." Number 0717 REPRESENTATIVE MURKOWSKI expressed concern that although the division has the information, a wall may exist that prevents the investor from having access to it. She said she doesn't know how much information should be made available, and she recognizes the concern. REPRESENTATIVE ROKEBERG responded that the information would include the state-mandated disclosure form, but it doesn't exclude their giving other information, which could be handled by regulation. He added, "'Includes but not limited' is the way our statute drafting manual is." He explained that he'd thought this was an improvement because it gives the department a little more flexibility and perhaps - under the right circumstances - they would give more information than was stipulated in statute. "That's why I took their recommendation as a 'positive,'" he concluded. Number 0784 MR. USERA explained that except for investigation files, all his division's files are public record. He stated, "If we know of something about the company that is negative, ... we can and will tell them. We already provide the statement of risk, but disclosure of any significant factor may still be in the bill. ... And that doesn't have to be out. We kept the word 'includes' in order to leave it flexible enough to allow ... other items. The main choking point, if you will, is audited income and expense statements." Number 0837 REPRESENTATIVE GREEN referred to line 18 and proposed deleting only the language [added by proposed Conceptual Amendment 2] after "disclosure form", then reinserting "and a disclosure of any significant negative factor". He asked whether that would pass muster. MR. USERA answered, "That would be fine with us." Number 0871 REPRESENTATIVE MURKOWSKI pointed out the need to say "factors" to avoid excluding a factor if there were two. MR. USERA concurred. Number 0894 REPRESENTATIVE ROKEBERG made a motion to adopt that as an amendment to Conceptual Amendment 2. CHAIRMAN KOTT announced that there was no objection to the amendment to the amendment and, therefore, Conceptual Amendment 2, as amended, was before the committee. REPRESENTATIVE ROKEBERG restated the amended amendment as follows: "includes the state-mandated disclosure forms and a disclosure of any significant negative factors that may affect the outcome of the investment." Number 0949 MR. USERA said the word "negative" would not be included. UNIDENTIFIED REPRESENTATIVES concurred. REPRESENTATIVE KERTTULA asked whether there is any definition of "significant factor." MR. USERA said he thinks he knows what it is. He suggested that using "negative" would limit it to some degree, because a positive or neutral factor may significantly affect the outcome of the investment. For instance, if the insured has a life expectancy of 15 years, that is neither a good nor bad factor, but it may cause the investment to be a loss. REPRESENTATIVE KERTTULA said she is glad they are including more language, but she is still a little concerned. Although she trusts Mr. Usera, he isn't always going to be there, and it is a lot of latitude. She asked whether the statement of risks is something the companies had objected to as well. MR. USERA answered no, that the companies didn't object to the division's disclosure form; it is based on Maine's form, which is tried and true. He said he had beefed it up a little, adding a few more factors that have to be considered. REPRESENTATIVE ROKEBERG suggested to Representative Kerttula that it isn't needed there because it could be redundant. Number 1065 REPRESENTATIVE KERTTULA responded that she doesn't want to be redundant but is worried about latitude with the state form, which could change in future years. It would perhaps make her more comfortable to include the balance sheet, the statement of risks, and the disclosure of any significant factors. She restated the need to say as much as possible because Mr. Usera won't always be with the division. MR. USERA answered: At least in the early part, we wanted the latitude to change the disclosure form at will, because ... we're interested in protecting the public. ... If we find something that the public should know about, we'll incorporate that in our form; and we can do it overnight. If it's in statute, we're hamstrung. It may be something you want to revisit, from a legislative standpoint, perhaps in another couple of years when this activity either becomes stabilized or doesn't rear its ugly head, one or the other. But you have further information to go on. Number 1133 REPRESENTATIVE KERTTULA asked whether Mr. Usera really would have any problem including the balance sheet and statement of risks. MR. USERA replied: The financial factors - the income and expense, and the balance sheet - they're going to give that to us, and it will be there, in our files and disclosable. ... Any investor who says, "I want to see their balance sheet," we'll give it to them. But I don't think we want to require that that be given as a matter of course. It's more paper .... Frankly, the disclosure forms, we tried to keep them short because the more you disclose, the less effect you have. ... There comes a point of diminishing returns, because the disclosures are so voluminous that nobody reads them. REPRESENTATIVE KERTTULA asked whether the division will ensure that the public understands the right to have access to the balance sheet. MR. USERA affirmed that, mentioning the division's web site. Number 1204 CHAIRMAN KOTT asked whether there was any objection to Conceptual Amendment 2, as amended. REPRESENTATIVE KERTTULA said, "Yes." CHAIRMAN KOTT announced, nevertheless, that seeing no objection, Conceptual Amendment 2 was adopted. Number 1230 REPRESENTATIVE ROKEBERG made a motion to move Version N of HB 190, (1-LS0576\N, Bannister, 2/1/00), as amended, from the committee with individual recommendations and the attached zero fiscal notes. There being no objection, CSHB 190(JUD) was moved from the House Judiciary Standing Committee. Number 1254 CHAIRMAN KOTT recessed the meeting at 3:35 p.m. He called the meeting back to order at 4:30 p.m. Present at that time were Representatives Kott, Green, Croft and Kerttula; Representatives James, Murkowski and Rokeberg rejoined the meeting as it was in progress. HB 253 - SCHOOL DISCIPLINARY AND SAFETY PROGRAM CHAIRMAN KOTT announced that in order to hear from a testifier online in Fairbanks, the committee would again take up HOUSE BILL NO. 253, "An Act establishing a school disciplinary and safety program; and providing for an effective date." Number 1348 JOHN REGITANO, Director of Planning, Family Centered Services of Alaska, testified via teleconference from Fairbanks, noting that his nonprofit agency works almost exclusively with children under 18 years of age who have mental health disabilities, and their families. He addressed four main concerns with HB 253 in its present form. First, his agency works with school districts throughout the state, particularly in the Fairbanks and Delta Junction areas, on prevention and intervention to avoid violent situations. If the bill just said all school districts are required to have a plan in place, his agency would believe that to be a good measure. To his belief, the majority of Alaska's children now attending public schools are covered by school disciplinary plans, which work well for the most part. Developed by local communities, those are being applied fairly and are overseen by the appropriate boards and administrations. MR. REGITANO discussed the second concern. No wording in the bill addresses children with disabilities and the federal laws that apply to them - such as the IDEA, "504" plans and IEPs. The Fairbanks School District alone has approximately 2,200 children on "504" or IEP plans. Disciplinary procedures need to be well thought-out and included in any plans developed by a school district. Therefore, the bill needs to include wording regarding compliance with all applicable federal laws, as a safeguard, so that issue is brought into the thought process when these plans are developed. He mentioned the need for input from appropriate social service workers, special education teachers and parents of those children in the planning. MR. REGITANO said third, use of appropriate and reasonable force is applied to two issues here. Regarding safety, he believes it is appropriate and adds a level of comfort. However, as the bill now stands, it is also applied to discipline; he concurs with Ms. Gillespie that it is highly subjective, especially in a school setting. He expressed concern that discipline is in the eye of the beholder, and an argument could be made that it was linked somehow to safety. Although applying it to safety is fine, it doesn't work when discipline is also addressed in the bill. MR. REGITANO indicated his fourth point echoes Ms. Gillespie's testimony that it is impossible to define everything that could possibly occur in the school setting which would require appropriate or reasonable force. He concluded by saying although his agency likes the discussion on school safety and violence, they adamantly oppose the bill in its present form. Number 1564 CHAIRMAN KOTT thanked Mr. Regitano. After asking whether anyone else wished to testify via teleconference or had a time constraint, he announced that he would reopen public testimony at the hearing on Monday, February 7. [HB 253 was held over.] SB 24 - REGULATIONS: ADOPTION & JUDICIAL REVIEW CHAIRMAN KOTT announced that the final item of business would be CS FOR SENATE BILL NO. 24(FIN) am, "An Act relating to regulations; amending Rule 65, Alaska Rules of Civil Procedure; and providing for an effective date." Number 1627 REPRESENTATIVE JAMES made a motion to adopt as a work draft the proposed committee substitute (CS) for SB 24, Version P [1- LS0274\P, Bannister, 1/26/00]. There being no objection, Version P was before the committee. Number 1642 SENATOR DAVE DONLEY, Alaska State Legislature, sponsor of SB 24, came forward to present the bill. [Although he mentioned a committee hearing towards the end of last year, there was no House hearing held on SB 24 in 1999.] Senator Donley told members that a series of meetings, over many months during the interim, had involved many sectors of the natural resource development industry and the Alaska State Chamber of Commerce. The result was Version P, which he believes to be a very good product. SENATOR DONLEY pointed out that Version P has been narrowed in focus to only apply to the Department of Environmental Conservation (DEC). He had tried to take all the things heard for years from the public about how regulations are too difficult and onerous, and had tried to work with the industry. This is a pilot program with just the DEC; if something doesn't work well, the entire system won't have been changed. However, if something does work well, then later that can be adopted and applied to other sectors of state government. Version P sets out new standards, worked out with the industry, that a regulation must meet before adoption. There are also additional procedural requirements before adopting regulations, including mailing notices that a proposed regulation is going to be changed, to people who have offered comments, and publishing information on the Internet. Some bills passed by the legislature have required adoption of regulations, Senator Donley said, which in one instance didn't occur for five or six years. This would give the DEC a fixed period of time to say "yes" or "no" as to whether they intend to adopt regulations. If the DEC moves ahead, Version P allows them a two-year window to do those regulations. Senator Donley told members: Now, we've tried to carefully craft this so that if something goes wrong, and they don't get it done in two year, it doesn't mean they can't. But we've put incentives and encouragement for them to get it done in two years in the legislation, such as at the 18-month period, if they haven't done it already, they're supposed to provide a report to the legislature saying why they haven't done it and ... what's the problem, what they intend to do, whether they're going to make their goal. So, we've tried to build incentives in without preventing the thing from happening in the end. Now, we've also built things in that keep it from being the subject of any litigation and things like that, which would also slow down the process. So, the intent that we've worked out here is a system by [which] we encourage the departments to get ... the regulations that are necessary adopted, and if they don't do it, at least we'll get information why they haven't done it, and they'll have to justify, in writing, why they haven't done it. So, that's a big feature that industry really likes. And also, of course, the bill still contains the requirement of supplemental notices to the public if the original intent of a regulation changes dramatically (indisc.--papers shuffling). We go through this committee process, Mr. Chairman, where every committee substitute's published; it's available at every step along through the committee process. But in the regulatory process today, unless they deem that there's a major change in some way, the public gets one notice, and then the thing comes out ... that has the force of law. With this, if there's a substantial change in what they originally published their notice to the public of, they have to go back out and give supplemental notice and warn the public: "Well, now we're going to do something different," ... because there may be people out there that need to know that, Mr. Chairman. So we think ... this particular CS is a really good step. It's a pilot program. And earlier today we had folks from the Alaska Miners Association in here, in support of it; by teleconference, also, from Alaska Forest Association. Sealaska, I believe, has submitted written testimony in support of it, and they were ... present earlier today also. And Pam LaBolle with the [Alaska State Chamber of Commerce] is still here. SENATOR DONLEY informed members that Hans Neidig could walk them through Version P section by section, if so desired. Number 1860 REPRESENTATIVE GREEN said he applauds the concept but has one question. He referred to page 5, lines 9 and 10, which read: "(2) the agency has made a good faith effort to adopt the regulations within the two-year period set out in (i) of this section." He asked whether the agency won't always say that they had made a good faith effort. He suggested that if an agency wants to adopt regulations, two years should be much more time than is needed. He questioned the necessity of having that in the bill, saying he thinks it undoes all the good the sponsor is trying to do. Number 1920 SENATOR DONLEY recalled its genesis from meetings that summer. He explained that there might be a good faith reason why it makes sense to wait a little longer; for example, the agency could be awaiting a court settlement or something from the federal government. He agreed that it probably is too broad, considering that there is no particular penalty for not doing it, other than needing to submit a report to the legislature. He indicated they had set it up that way to avoid frivolous litigation to block necessary economic development regulations. He said he would defer to the judgment of the committee and the folks from the industry about whether that should remain in there. REPRESENTATIVE GREEN noted that Pam LaBolle was signed up to testify. Number 1951 REPRESENTATIVE JAMES asked if there is a political or legislative penalty if they don't do it. She indicated a two-year time frame may persuade the agency to move a little faster. SENATOR DONLEY explained that he likes it because it gives the agency a goal, and he believes agency personnel take the statutes seriously. He believes two years is a reasonable period. However, there are legitimate times when maybe it can't be done in two years, for good reasons, which they had discussed last summer. If 18 months comes and the agency hasn't done regulations, they won't be happy about admitting that and putting down on paper why, in the report. Senator Donley agreed that if there is bad faith on the part of the bureaucracy, they can get away with an awful lot. However, he believes these are all positive, measured, reasonable steps that are worthy of trying as an experiment with a single department. Number 2074 REPRESENTATIVE KERTTULA asked why the DEC was chosen for this. SENATOR DONLEY explained that the bill began as a general provision. The Administration had suggested that one department be picked, however, and that it be done as a pilot program. He indicated the Senate had considered the Department of Natural Resources (DNR), the DEC, and two divisions of the Alaska Department of Fish and Game (ADF&G), including the Division of Habitat and Restoration and possibly the Division of Subsistence. Senator Donley pointed out that there are unique concerns with each department, and the public has specific concerns about different elements. Finally, through the committee process, they had narrowed it down to the DEC as one agency with which to give it a try. Number 2120 REPRESENTATIVE KERTTULA referred to page 2, Section 3 and expressed concern about how this would work. For example, would a person who thinks the regulation isn't valid or effective go to court or contact the agency? Noting the change in the burdens of proof, she said it is really complicated and she has never seen anything like that for a regulatory process. SENATOR DONLEY responded that this section was developed from many meetings over the summer, trying to come up with a system to prevent frivolous lawsuits that would tie up the regulatory process so industry couldn't proceed with needed regulations. At the same time, however, if a regulation really wasn't the intent of a statute, there would be a specific standard of how a court would examine that and overturn it. It places the burden of proof on the person challenging the regulation, so that it would be a clear test. It is what his working group came up with; it is an experiment, a try. If the department didn't respond, agree and modify it, a person could write a letter saying it doesn't comply with the intent of the statute; the department could then either reach a compromise or go to court. "If it did go to court, it would be their burden that the regulation was invalid under that section," he added. He suggested Section 3 serves as a clear statement that this is how the legislature wants its statutes interpreted, and it gives clearer guidance to the executive branch in interpreting the statutes, which he believes is very useful. Number 2238 REPRESENTATIVE KERTTULA pointed out that subparagraphs (1)(A) and (1)(B) are mutually exclusive under Section 3. She asked what happens if a statute requires a regulation but does impose a material capital or operating cost, and there isn't any significant public benefit. It could be a particular statute applying to a particular industry, she pointed out, and there may not be a significant public benefit across the board. Noting that there is an "or" in here, she asked, "Wouldn't you run the risk of having somebody being able to bring a suit against that regulation?" SENATOR DONLEY answered that there is a specific exception when it is required by a statute. REPRESENTATIVE KERTTULA said she wasn't reading it that way. Number 2275 HANS NEIDIG, Legislative Administrative Assistant to Senator Dave Donley, Alaska State Legislature, explained that the test and that language comes from Alaska's [Forest Practices] Act. Something similar to it already exists; it is not necessarily setting up a new standard that is out of the ordinary. The test established in subparagraph (1)(B) of Section 3 responds to a widely held perception that regulations and associated costs of compliance often impact private persons and/or industry without providing public benefits. Consequently, it made sense to provide a burden of proof for a person challenging the regulation - using the test provided in (1)(B) - that a preponderance of evidence exists in that person's favor. Mr. Neidig voiced his understanding that preponderance of the evidence is the existing standard used in most civil cases. Number 2314 REPRESENTATIVE KERTTULA thanked Mr. Neidig for pointing that out. After apparently checking the Forest Practices Act to see whether it says "significant public benefits" or just "public benefits," she announced that it is "significant." SENATOR DONLEY stated: The answer to your other question, Representative Kerttula, is that the existing law - in Section 2 of the bill - says when something's reasonably necessary to carry out the purpose of the statute, that's what they do. And so we've tried to maintain the specific provision that, obviously, if the statute says "you shall adopt regulations that do such and such," they're covered. I mean, that's what they've got to do. REPRESENTATIVE KERTTULA said she still has concerns. CHAIRMAN KOTT requested a brief review of the sections. He then noted that the committee had received a letter dated February 1, 2000, in support of SB 24, Version P, from the Alaska Miners Association. That letter contained a proposed amendment regarding the agency's effectiveness in posting regulations. Specifically, it recommended amending Section 4 to add a new subsection (l) after line 10, page 5, which would include the following concepts, taken verbatim from the letter: (1) the agency shall (1) within one year of the effective date of the final regulation make a written summary to the Legislative Committee having jurisdiction and the Sponsors of the enabling legislation, which (A) outlines the effectiveness of the final regulation in achieving it's the Legislative requirements and intent (B) outlines any issues that need administrative or Legislative solution to achieve more effective implementation, and (2) publish notice using the same requirements as set forth in Section 4(b) the written summary is available. CHAIRMAN KOTT asked whether Senator Donley had reviewed that proposed language. SENATOR DONLEY said yes, they'd just received the letter. He noted that they had worked with the miners over the summer, who had been helpful and had provided some really good suggestions. This one is new, and he is open to it. Senator Donley said his only concern is its possible fiscal impact because requiring another report would result in a fiscal note. TAPE 00-8, SIDE B Number 0001 CHAIRMAN KOTT commented that he personally thinks the fiscal application would be negligible, but he isn't the one providing the written summary to either the sponsor or the legislative committee having jurisdiction over it. SENATOR DONLEY said he'd be all for it, if it were negligible. REPRESENTATIVE JAMES remarked that in this bill, which only deals with the DEC, it might work. However, she herself gets a huge number of notices for changes in regulations. She believes there would be some fiscal impact from making another report, not that she disagrees with the need for it. She pointed out it would require immense cooperation between the agency and the legislature. That doesn't exist now, and she doesn't believe it is a natural existence. She believes it would be resisted and would cost a lot of money. Number 0062 CHAIRMAN KOTT recalled that when the legislature has done pilot programs, generally there is a clause in the legislation that repeals it after a certain time. If the law is effective, it is reestablished. However, if it isn't effective, it goes away and the legislature doesn't have to take action. He asked how long Senator Donley would foresee this having to be enacted before the legislature can determine its effectiveness. SENATOR DONLEY answered at least four to five years. It would take time for the bureaucracy and private industry to adjust. He would want to give it at least that long in order to have a sense of how it is functioning, if Chairman Kott is suggesting a sunset provision. He said he is pretty excited about this, and he believes it is a really good work product. Over the summer, they'd struggled with the idea of a cost-benefit analysis. Although people in the industry had asked for that for years, they finally concluded that it would be too costly and too difficult to do, and it might actually hamstring some things they want to accomplish in regulations. Therefore, that isn't in the bill. Senator Donley restated that this is a really good step. He suggested in two or three years legislators would want to actually expand it. Number 0149 CHRISTOPHER KENNEDY, Assistant Attorney General, Civil Division (Anchorage), Environmental Section, Department of Law, testified via teleconference from Anchorage. Indicating Janice Adair, Director, Division of Environmental Health, DEC, was unable to testify that day, he requested on her behalf that she be allowed to comment later. He referred to Version P of SB 24 and stated: While the bill has improved over previous versions, we continue to have a number of concerns. First of all, a housekeeping point, as, I think, Senator Donley covered. SB 24, as it's revised, applies special procedures only to DEC. Now, special administrative procedures applicable only to a single department are normally in place in the statutory title for that agency. And currently we already have on the books some special departures from the Administrative [Procedure] Act that apply only to DEC, and those are in Title 46. The main example is AS 46.35.090. Now that it's been narrowed to relate only to DEC, the main provisions of this bill ... in Sections 3 and 4 should be revised to go into Title 46, rather than Title 44. I heard the discussion of this being a pilot program that might last five years or so. Of course, if it were a successful pilot program and someone wanted to expand it 5 years from now, one could recodify [it] again, but five years is a long time to have a DEC statute stuck off in another title where people might miss it. Number 0239 Now I'll turn to the substance of the bill. And I'd like to look first at the standard of review - which has just been discussed - found in Section 3 of the bill. It completely replaces the current standard under which an agency's regulations are tested, and the current standard in [AS]44.62.030 is quite a firm standard. It says that regulations have to be consistent with the statutes and that they have to be reasonably necessary to carry out the purposes of the authorizing statute. This standard has been in place since 1959. It stood the test of time. The courts have decided dozens of changes based on it, and the legal community of both industry and government knows what it means. The new standard in SB 24 is entirely novel. It uses words like "thwarts" and "circumvents" that are new to the Alaska Statutes and not found in many other state statutes either. No one can predict how a court would interpret them. The SB 24 standard also inserts "courts" into a process of weighing costs and benefits. And here I'm talking about part (B) of the new standard of review, which is at lines 8 through 10 on page 2. Under SB 24, a court cannot uphold a regulation without finding that it yields ... "significant public benefits" to counterbalance any ... "material costs imposed on development activities". This gets the superior courts into weighing what is a benefit, what is a significant benefit, and what is a public benefit. Increasingly, unfortunately, courts in Alaska are coming to the realization that they're not equipped for that kind of role. The Alaska Supreme Court said in the recent Casio(ph) case that it doesn't want to ... get mired in questions of public policy as to regulations because ... that is beyond our authority and expertise. Number 0331 MR. KENNEDY continued: I'll give you an example of the kind of weighing that would be involved. DEC issues special regulations to provide particular industrial facilities with mixing zones that, as a practical matter, allow the industry to discharge more waste into the water than federal or state law would otherwise permit. And a user of the water body, such as an eco-tourism company, might challenge a regulation like that, alleging that it imposed costs on them because they have to travel farther to find a pristine tourist destination. Against that cost, the court would have to weigh the benefits of letting the industrial facility use the mixing zone. Then you would have the question of whether that is a public benefit or just a private benefit to the company that owns the facility. And some judges might even question whether it's a benefit at all. one knows how a court would rule, given this kind of language, and it introduces an uncertainty into the whole process and makes it hard for industry or anyone to know which regulations they can rely on and which are going to be snatched out from under them in some later litigation. There's another very troubling aspect in introducing a whole new standard for reviewing regulations. And to appreciate it, you have to look at Section 3 in conjunction with Section 5 on applicability. As it must, to avoid a host of other problems, this bill has been framed not to be retroactive. It applies to new regulatory action begun after July 1 of this year. The trouble comes because most of what DEC does with regulations is amend existing regulations, in order to make them clearer, or to respond to problems pointed out by the regulated community, or to respond to changing conditions or amendments to statutes. An amendment may only change, for example, the last three words of a sentence under one ... sentence of a regulation. Later, if that regulation is challenged, then ... you would be testing those three words under one standard of review and the other words of the regulation under another standard of review. And within a few years, the DEC regulations would be a hopeless patchwork ..., some covered by the old standard and some covered by the new test. It would be very hard to predict how a court ... would unravel that. Number 0458 MR. KENNEDY continued: While I'm on ... the subject of applicability in Section 5, I want to just talk for a moment about subsection (a) of the applicability provision. That section makes some provisions of the bill only apply to regulations if the statute giving authority for those regulations has an effective date after July 1 of 2000. The problem there is that many regulations draw authority from a combination of statutes that all have different effective dates. Also, do you go by the effective date of the first version of the statute, or do you go by the effective date of the most recent amendment of the statute, or do you engage in some sort of court inquiry as to how significant the latest statutory amendment was? I think both the agency and the court and industry would have a very difficult time knowing how to interpret this applicability provision. Let me just turn back, if I may, to Section 4, the other substantive provision of ... the draft. The first part of that relates to the public notice process for adopting regulations. I think that the rest of this ... is perhaps to make sure that the agency has a genuine dialogue with the public. The idea may be that if the draft set of regulations is out to the public, then it significantly revises the draft, it'd have to take a new round of public comment. First I should make a couple of technical points. In subsection (b)(1) of the new section [AS 44.62.]213, the bill would require DEC to mail notice to persons who have provided comment to DEC on the proposed adoption, amendment or repeal of a regulation. I think the intent here is probably to refer to those who have commented formally on a previously noticed draft of those regulations. But the language of the bill doesn't quite say that, and this requirement could be interpreted to invalidate a regulation just because the agency did not notify someone who had commented in some informal context at some time in the past. Also, and this is a minor concern, that the phrase "mail notice" should be changed to "furnish notice". As we move more and more to electronic commenting, the agency receives comments by e-mail and would want to respond and providing notice by e-mail to people who prefer that. That mechanism and the use of the word "mail" is usually going to be interpreted just as strictly U.S. mail. Number 0576 MR. KENNEDY continued: Moving on to subsection (c). This is a requirement that the agency developed in explanation of why its proposed regulation is not invalid under the new standard of review that I mentioned before. This is an invitation for lawyers to compose boilerplates. It's unlikely to produce any material genuinely informative to the general public, and whatever it does produce will have to be published, potentially at great cost, in the Alaska Administrative Journal. Next, I'd like to comment on the core subsection here, subsection (e), which requires a new round of public notice whenever the agency, in response to comments, has ... "substantially changed the substance of the draft regulation". The first concern is that this imposes an uncertain standard. Secondly, it slows down the process considerably, whereas industry and the public, in general, are often impatient for regulations to become final. Third, it's costly. And fourth, it may not be an effective way to accomplish what seems to be the goal of this provision. If the goal is to make sure the agency has a meaningful dialogue with commenters, the best solution might be to require the agency to prepare and furnish to commenters a response in the summary explaining why it accepted or rejected each comment. I understand some DEC divisions do this already, and it's a procedure that's been well received when it's been tried. I'd like to touch briefly on the exceptions to subsection (e). The exceptions are in ... subsection (g), which straddles pages 3 and 4 of the draft. The point to be made here is that these exceptions, other than number (1), are too vague to be of any real use to the agency. They talk about reducing burden. One person's burden is another person's benefit, and it will generally be difficult to tell if a regulation reduces burdens ... on society as a whole. ... I should comment briefly on ... subsection (h) through (k), which attempt to ensure that regulations are adopted, probably after the underlying statute is passed. These provisions suffer from similar concerns. ... They're vague. ... Even more of a problem is that the underlying assumption is that regulations will be based on a single statute that has a single effective date, ... which, as I mentioned previously, is frequently not the case, or most commonly is not the case. These provisions will be extremely hard to apply where regulations have multiple statutes behind them - all with different effective dates - and with multiple statutory amendments that often have different effective dates. Finally, while a delay in issuing regulations can be frustrating, these provisions are perhaps a little too blunt to address that. Often the need for regulations doesn't become apparent ... to anyone until there's been years of experience in attempting to implement the underlying statute; and it would be unfortunate to have a blanket two-year cutoff for regulations in those situations. Last of all, what I think is a technical fix: the last line of subsection (j), which was lines 30, 31, on page 4, states that a court may not hold a regulation invalid for failure to comply with "this subsection", which is part, but not all, of the two-year limit mechanism. If this line were changed to "failure to comply with subsection (h) through (j)", then the two- year limit would be something for DEC to strive for, and perhaps to be embarrassed if it failed to meet their goal, because we'd have to report to the legislature. But it would not be set in stone, and wouldn't hold out the threat of having regulatory reforms become impossible if it later became apparent that ... they were needed after the two-year period had gone by. Number 0798 CHAIRMAN KOTT thanked Mr. Kennedy and requested that he provide his comments in writing, if possible. MR. KENNEDY said he would be happy to do that. Number 0810 PAMELA LaBOLLE, President, Alaska State Chamber of Commerce, came forward, expressing pleasure at seeing the bill before the committee in its current form. She said fixing the regulatory process - deemed by her membership to be a problem for many years - has been a top priority of the state chamber for several years. She indicated Representative James has succeeded in some of her many efforts to make changes in the past. She said the legislature has recognized, for many years, that regulations are promulgated that don't meet legislative intent. Although originally the legislature had authority to repeal such regulations, she said, a court decision changed that. MS. LaBOLLE told the committee that she has never been involved in a piece of legislation that has had so many hearings and so much work put into it. Originally the bill encompassed several agencies, but it seemed logical to do a pilot project using one agency. The DEC was a cause of many of the problems, she said, and was probably the easiest one to try this on. Her organization feels this is very reasonable. It affects every regulation proposed after the time line begins, or every law that becomes effective as of July 2000. Ms. LaBolle said she doesn't concur with Mr. Kennedy's logic regarding how difficult this would be to put into force. Her organization believes this bill is a good first step. She disagrees that the system has worked well since 1959, and her organization is looking for a novel approach. They believe this pilot project is the way to handle it. Number 1031 CHAIRMAN KOTT thanked Ms. LaBolle, then stated his desire to hear from the DEC before taking any action. He asked whether Senator Donley was prepared to respond to Mr. Kennedy's comments now. SENATOR DONLEY replied that he would use his own license and try to summarize the arguments. First, the regulators say they are afraid this will hurt the industry, but the industry supports this. The regulators also say it will be difficult because it won't apply to all the laws; perhaps having it apply to all is a good idea that would solve the problem. He said the DEC should provide notice of changes to the people, whether they really want to or not. Furthermore, these time lines are basically advisory; this doesn't preclude moving ahead after two years. He suggested the agency doesn't want even guidelines, which would make their job easy, but it wouldn't be good for the public or the industry. Finally, Senator Donley believes it is clear that there isn't a two-year cutoff. He concluded, "We went through great lengths to ensure that even after the two years, they could continue to pursue and get the regulations in place." Number 1159 REPRESENTATIVE CROFT referred to the end of subsection (j), the bottom of page 4, which read: "Notwithstanding AS 44.62.300, a court may not hold a regulation invalid for failure to comply with this subsection." He pointed out that (i) says a state agency may not take more than two years to adopt regulations unless the state agency complies with (j). He agreed with Senator Donley that it makes a guideline that should be retained. He asked, however, whether it shouldn't say (h), (i) and (j). SENATOR DONLEY explained that the intent there, which he believes is clear, is that the agency gets out from having to do it within two years if they do the report required by (j). If they don't do the report, they must do the regulation within two years. "I guess you could suppose that they just - out of arrogance - refuse to file the report, even though they have a legal duty to do so," he added, "and then bring down on themselves the two-year limit." He said he wouldn't mind at all if it were expanded there, if it satisfies that concern. REPRESENTATIVE CROFT said he wasn't trying to change the sponsor's intent, but he can't quite understand all the loops that this entails. CHAIRMAN KOTT asked Senator Donley about the comment relating to the mailing of notices on page 2. [Mr. Kennedy had proposed changing "mail notice" to "furnish notice."] SENATOR DONLEY answered that he had no problem with that change. Pointing out the provision for publication of notice on the Internet below that, he indicated the desire to give flexibility in order to save on costs. Number 1326 REPRESENTATIVE JAMES referred to Mr. Kennedy's concern about a minimal change to a regulation after the effective date, and subsequent action by a court because there would be two different rules to follow. She asked Senator Donley to respond. SENATOR DONLEY answered that if it is a real concern of the department, he would be happy to entertain a proposal from them to clarify it one way or the other. He then suggested it should be simple: "If a regulation is updated or changed, the new standard applies to it." In response to a question, he restated that he doesn't have a problem with a "sunset" after at least four or five years. CHAIRMAN KOTT emphasized that if there is a sunset provision and the program is working, it will force the legislature to come back and expand it to other departments. But if it isn't working, then the legislature doesn't have to do anything. He believes the sunset clause is somewhat important. Number 1577 REPRESENTATIVE CROFT brought attention to the different burdens of proof. He requested confirmation that the provision on significant benefits to public resources has been part of the Forest Practices Act since 1990. SENATOR DONLEY asked whether Representative Croft was talking about page 2, lines 8 through 10. REPRESENTATIVE CROFT affirmed that. SENATOR DONLEY clarified that that was a suggestion that came out of the industry working group that past summer. REPRESENTATIVE CROFT pointed out that a court would make the determination of "significant public benefits," which had seemed odd to him at first. He asked whether there is any case law on that issue under the Forest Practices Act. Number 1675 RICHARD HARRIS, Senior Vice President, Natural Resources, Sealaska Corporation, came forward. [Mr. Harris had provided written testimony in support of SB 24, Version P, on behalf of Sealaska Corporation and the Alaska Forest Association.] In reply to Representative Croft's question, he answered no. Since 1990, he indicated, one additional revision to the Forest Practices Act was passed by this legislature one or two years ago. He elaborated: This guideline and standard actually helped us as we went through and determined what should be the changes to the Act - you know, what was the science, and what was the technical data that was available to us to support additional buffer standards on riparian and non-anadromous streams? And this standard actually became kind of a guiding principle that we used, as we went forward in revising that. ... That amendment to the Act passed unanimously by both houses of the Alaska legislature, unamended. We were able to work that process outside the legislature process, but with all the interest groups. And it became, as I say, a very good guideline for us to work from. And it was a test, as we went back and said, "Does this change make sense? And how does it ... work against this standard?" And out of that, then, we were able to all reach agreements, ... to the extent that the environmental community, the fishing community all came and supported that bill. So, we haven't had to test it in court, but it has been a useful guideline for us as we've gone forward. Number 1771 REPRESENTATIVE CROFT suggested the careful negotiation might explain why there has been no litigation. Pointing out how unusual it is for a court to measure the significance of the benefits to the public, he wondered what standard the court would use. SENATOR DONLEY said one reason they had worked so hard on the burden of proof section was to give the court more guidance in how to interpret that, and to say "that if somebody wants to overturn, based on that standard, they're going to have to bring back the evidence to convince the court." REPRESENTATIVE CROFT responded, "A lower burden than they would have saying it doesn't meet the statutory intent." Number 1855 CHAIRMAN KOTT asked whether there were further questions, then announced that the bill would be brought up the following week. [SB 24 was held over.] ADJOURNMENT Number 1901 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 5:52 p.m.