Legislature(1999 - 2000)

02/02/2000 01:41 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               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.                                                                 
                                                                                                                                

Document Name Date/Time Subjects