Legislature(1995 - 1996)
04/10/1996 01:12 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 10, 1996
1:12 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HOUSE BILL 549
"An Act relating to partnerships; and providing for an effective
date."
- HB 549 MOVED FROM COMMITTEE
SENATE BILL 211
"An Act relating to sexual assault and sexual abuse; and relating
to endangering the welfare of vulnerable adults."
- CSSB 211(RLS) MOVED FROM COMMITTEE
SENATE BILL 268
"An Act relating to release before trial in cases involving
alcohol, controlled substances, imitation controlled substances,
stalking, or domestic violence."
- CSSB 268(JUD) MOVED FROM COMMITTEE
PREVIOUS ACTION
BILL: HB 549
SHORT TITLE: LIMITED LIABILITY PARTNERSHIPS
SPONSOR(S): JUDICIARY BY REQUEST
JRN-DATE JRN-PG ACTION
04/03/96 3617 (H) READ THE FIRST TIME - REFERRAL(S)
04/03/96 3618 (H) JUDICIARY, L&C, FINANCE
04/10/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 211
SHORT TITLE: VULNERABLE PEOPLE:NEGLECT/ASSAULT/ABUSE
SPONSOR(S): SENATOR(S)
ELLIS,Salo,Pearce,Lincoln,Donley,R.Phillips,Duncan
Taylor,Leman,Kelly,Torgerson,Sharp,Zharoff; REPRESENTATIVE(S)
Robinson
JRN-DATE JRN-PG ACTION
01/10/96 2096 (S) READ THE FIRST TIME - REFERRAL(S)
01/10/96 2096 (S) STA, JUD
03/07/96 (S) STA AT 3:30 PM BELTZ ROOM 211
03/07/96 (S) MINUTE(STA)
03/11/96 2685 (S) STA RPT CS 4DP NEW TITLE
03/11/96 2685 (S) ZERO FN TO SB & CS (ADM, CORR, LAW)
03/20/96 (S) JUD AT 1:40 PM BELTZ ROOM 211
03/20/96 (S) MINUTE(JUD)
03/22/96 2831 (S) JUD RPT 5DP (STA)CS
03/22/96 2831 (S) ZERO FISCAL NOTE TO CS (DPS)
03/22/96 2831 (S) PREVIOUS ZERO FNS (ADM, CORR, LAW)
03/27/96 (S) RLS AT 12:00 PM FAHRENKAMP RM 203
04/02/96 3014 (S) RULES RPT CS & CALENDAR 4/2 NEW TITLE
04/02/96 3014 (S) PREVIOUS ZERO FNS (DPS, ADM, CORR, LAW)
04/02/96 3023 (S) READ THE SECOND TIME
04/02/96 3023 (S) RLS CS ADOPTED UNAN CONSENT
04/02/96 3023 (S) COSPONSOR(S): SALO, PEARCE, LINCOLN,
04/02/96 3023 (S) DONLEY, PHILLIPS, DUNCAN, TAYLOR,
04/02/96 3023 (S) LEMAN, KELLY, TORGERSON, SHARP, ZHAROFF
04/02/96 3023 (S) THIRD READING 4/3 CALENDAR
04/03/96 (H) JUD AT 1:00 PM CAPITOL 120
04/03/96 3050 (S) READ THE THIRD TIME CSSB 211(RLS)
04/03/96 3050 (S) PASSED Y19 N- E1
04/03/96 3050 (S) Halford NOTICE OF RECONSIDERATION
04/04/96 3067 (S) RECON TAKEN UP - IN THIRD READING
04/04/96 3067 (S) RETURN TO 2ND RDG FOR AM 1 UNAN
CONSENT
04/04/96 3067 (S) AM NO 1 ADOPTED Y15 N1 E3 A1
04/04/96 3069 (S) AUTOMATICALLY IN THIRD READING
04/04/96 3069 (S) PASSED ON RECONSIDERATION Y16 N- E3 A1
04/04/96 3071 (S) TRANSMITTED TO (H)
04/09/96 3659 (H) READ THE FIRST TIME - REFERRAL(S)
04/09/96 3659 (H) JUDICIARY
04/09/96 3668 (H) CROSS SPONSOR(S): ROBINSON
04/10/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 268
SHORT TITLE: PRETRIAL RELEASE FOR CERTAIN OFFENSES
SPONSOR(S): SENATOR(S) LEMAN
JRN-DATE JRN-PG ACTION
02/07/96 2325 (S) READ THE FIRST TIME - REFERRAL(S)
02/07/96 2325 (S) JUDICIARY
03/13/96 (S) JUD AT 1:30 PM BELTZ ROOM 211
03/13/96 (S) MINUTE(JUD)
03/13/96 (S) MINUTE(JUD)
03/20/96 (S) JUD AT 1:40 PM BELTZ ROOM 211
03/20/96 (S) MINUTE(JUD)
03/22/96 (S) MINUTE(JUD)
03/25/96 (S) MINUTE(JUD)
03/29/96 2964 (S) JUD RPT CS 2DP 3NR NEW TITLE
03/29/96 2964 (S) ZERO FISCAL NOTE TO SB & CS (COURT)
04/01/96 (S) RLS AT 12:25 PM FAHRENKAMP RM 203
04/01/96 2991 (S) ZERO FN TO CS (CORR)
04/02/96 3011 (S) ZERO FNS TO CS (LAW, DPS)
04/02/96 3014 (S) RULES TO CALENDAR 4/2/96
04/02/96 3026 (S) READ THE SECOND TIME
04/02/96 3026 (S) MOTION TO ADOPT JUD CS
04/02/96 3026 (S) JUD CS ADOPTED UNAN CONSENT
04/02/96 3026 (S) AM NO 1 MOVED BY ADAMS
04/02/96 3027 (S) AM NO 1 ADOPTED UNAN CONSENT
04/02/96 3027 (S) ADVANCED TO THIRD READING UNAN CONSENT
04/02/96 3027 (S) READ THE THIRD TIME CSSB 268(JUD) AM
04/02/96 3027 (S) PASSED Y20 N-
04/02/96 3030 (S) TRANSMITTED TO (H)
04/03/96 3616 (H) READ THE FIRST TIME - REFERRAL(S)
04/03/96 3616 (H) JUDICIARY
04/10/96 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
BILL EZZELL, CPA
Deloitte and Touche, LLP
1900 M Street, N.W.
Washington, D.C.
Telephone: (202) 955-4000
POSITION STATEMENT: Testified on HB 549
JOE SCHIERHORN, Vice President
(President of the Alaska Bankers Association)
Commercial Lending
North Rim Bank
3111 C Street
Anchorage, Alaska 99501
Telephone: (907) 562-0062
POSITION STATEMENT: Testified on HB 549
SENATOR JOHNNY ELLIS
Alaska State Legislature
State Capitol, Room 9
Juneau, Alaska 99801-1182
Telephone: 465-3704
POSITION STATEMENT: Sponsor of SB 211
JACKI ORTELLI, Representative
Denali Center
Home and Community Care, Fairbanks Community Hospital
License Guide Organization, Joint Commission Accredited
Chairman, Long Term Care Committee for Alaska State
Hosptial and Nursing Home Association (ASHNHA)
1510 19th Avenue
Fairbanks, Alaska
Telephone: (907) 458-5105
POSITION STATEMENT: Testified on SB 211
JANE ANDREEN, Executive Director
Council on Domestic Violence and Sexual Assault
Box 111200
Juneau, Alaska 99801
Telephone: (907) 465-4356
POSITION STATEMENT: Testified on SB 211 and SB 268
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on SB 211 and SB 268
CONNIE SIPE, Executive Director
Division of Senior Services, Administration
3601 C Street, Suite 380
Anchorage, Alaska 99503-5984
Telephone: (907) 563-5654
POSITION STATEMENT: Testified on SB 211
MICHAEL PAULY, Staff
Senator Lehman
Alaska State Legislature
State Capitol, Room 510
Juneau, Alaska 99501-2133
Telephone: (907) 465-2095
POSITION STATEMENT: Testified on SB 268
DON DAPCEVICH, Executive Director
Governor's Advisory Board on Alcoholism & Drug Abuse
Department of Health & Social Services
P.O. Box 110607
Juneau, Alaska 99801-0607
Telephone: (907) 465-2071
POSITION STATEMENT: Testified on SB 268
ACTION NARRATIVE
TAPE 96-48, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:12 p.m. Members present at the call to order were
Representatives Bunde, Toohey, Davis and Finkelstein.
Representatives Green and Vezey arrived at their respective times;
1:15 p.m. and 1:19 p.m. Representative Vezey left the committee
meeting at approximately 1:45 p.m. and did not return.
HB 549 - LIMITED LIABILITY PARTNERSHIPS
Number 185
BILL EZZELL, CPA, Deloitte & Touche, LLP, testified by telephone
from Washington, D.C. He currently chairs a coalition of the six
largest accounting firms in the United States called the
Accountants Coalition. This group formed to promote among other
things, the Limited Liability Partnership laws for the accounting
profession, as well as, other professional firms both large and
small. Mr. Ezzell made reference to Mike Duffey, who was with him
in Washington, and Mr. Duffey is an attorney with the accounting
firm of Ernst & Young, LLP and has been very involved in the
passage of Limited Liability Partnership (LLP) legislation around
the nation.
MR. EZZELL continued to address the Limited Liability Partnership
legislation before the Judiciary Committee. The form of
organization a business will operate in is one of the most
important decisions that any business owner makes at the beginning
or during the course of business. Several years ago many states
began exploring opportunities for new and existing businesses to
afford themselves ways to limit the personal liability of their
owners by using new forms of organization. Alaska participated in
this process by adopting the Limited Liability Company as a form of
an organization previously.
MR. EZZELL added that subsequent to the adoption of Limited
Liability Companies many states have looked at and adopted Limited
Liability Partnership forms for business to operate under. The
Limited Liability Partnership form can be a lower cost alternative
to a Limited Liability Company (LLC) or corporate forms of
organization. It has been viewed as a very business friendly, low
cost form for professional firms in particular to take advantage
of. The proposed Alaska LLT law, HB 549 in it's current draft is
very consistent with the LLP laws which have been passed now by 40
states, plus the District of Columbia and Guam. The remaining ten
states like Alaska has this legislation currently under
consideration.
MR. EZZELL stated that about the LLP itself, LLP is in fact a form
of general partnership, but a form which provides certain liability
protection to it's partners or owners. Under a general partnership
all partners are jointly and severally liable for the obligations
of the partnership to the extent of each partner's personal assets,
such as houses, cars and savings accounts are available to satisfy
claims of a general partnership. Under a Limited Liability
Partnership, partners remain personally liable for their own acts
and the acts of persons they directly supervise. The partnership
remains liable for it's obligations to the full extent of it's
assets and the capitol of the various partners. The difference is
that partners in an LLP would not be personally liable for the
obligations of the LLP arising out of errors, omissions,
negligence, incompetence or malfeasance committed by another
partner or a representative of a partnership.
MR. EZZELL added further that one partner not having been involved
at all in a matter which brought a claim against the partnership
and should that claim be so large as to cause the bankruptcy of the
partnership, the partner who was personally involved would still be
personally liable, but other partners not personally involved would
not have their personal assets at risk in this form of
organization. There are other forms of organization already
adopted by Alaska and other states that provide greater protection
for the personal assets of a business owner and more comprehensive
in covering actions beyond just liability claims for negligence,
errors and omissions mentioned previously, but also covering
contractual obligations of the entity itself. The LLP therefore
provides a little bit less protection than some of these other
forms and less protection than the LLC form of organization.
MR. EZZELL offered that for professional services firms wishing to
practice in a more traditional partnership concept this is a good
marriage of the two issues of liability protection and the
partnership concept of operating. In the LLC form of organization
all of the owner's personal assets would be protected from any
claims arising out of claims against the company itself. An owner
would only be exposed to the extent of their investment in the LLC.
This would be true for claims arising out of tort or claims which
are contractual in nature against the LLC. The LLP would cover
claims only against the personal assets of partners not directly
involved. The LLC is a little more like a corporation and
therefore in terms in cost of compliance and cost of set up it's a
little more costly and complex to maintain and comply with the
various requirements of an LLC as versus an LLP.
MR. EZZELL stated additionally and particularly of interest to his
firm and other large firms in regards to numbers of partners, an
LLC maybe deemed to be in effect a public company if there are more
than 500 partners. Therefore, an LLC with 500 hundred or more
partners or owners would have to file and become a public registry
company with the Securities and Exchange Commission and would also
have to deal with the requirements of state securities regulators
and regulation. Again, this would be a much more complex form of
operation and it's for this reason that firms have looked to the
LLP as an opportunity to provide a means to protect the personal
assets only of the partners not involved in the action giving rise
to the liability, but also to be able to do so in a low cost,
efficient manner.
MR. EZZELL noted that what they have found with other state's that
have passed LLP legislation is that many small and start up firms
have utilized the LLP as a very low cost means to organize and
start new businesses and hopefully bring new jobs into these
businesses. Many professional services firms far beyond an
accounting firms, such as law firms, engineering, architectural
firms have found the LLT form of organization a very appealing form
to begin or to organize an existing business with.
Number 779
CHAIRMAN PORTER asked about the relationship of an LLP which has
been founded in another state, but is doing business in Alaska
which does not yet have this form of organization.
MR. EZZELL said that his organization as an LLP is able to practice
under the laws of Alaska, being domiciled in Delaware. It's
important in today's litigation environment for people when they
bring a lawsuit that there be consistency among the laws of the
various states. An entity that practices such as his firm does in
a multitude of states can do so under some sense of consistent
application of the law in each of these states. This removes any
uncertainty if there was a lawsuit brought which could bring
substantial liability to a firm beyond the assets and capabilities
of a firm through it's insurance and equity. The personal assets
of partners located in Alaska would be afforded the same
protections as the personal assets of partners located in Delaware,
New York or any other place in the United States.
Number 975
REPRESENTATIVE CYNTHIA TOOHEY asked if this legislation goes into
law would partnerships on the books now be required to change.
MR. EZZELL responded that it was a simple matter should a general
partnership desire to become a Limited Liability Partnership under
the Alaska law. This company would merely register with the
appropriate registering body through a simple form and typically
there is a filing fee. This does not require extraordinary costs
or process to switch.
Number 1050
REPRESENTATIVE CON BUNDE referred to the issue of a company having
more than 500 partners in the LLP arrangements and the possibility
that they would have to go public.
MR. EZZELL said that this issue was subject to some debate because
the ownership interest in an LLC is the same as stock ownership in
a corporation. This has not been decided yet, it's something being
looked at in a number of states. For his particular firm with 1500
partners they would prefer not to be a corporation.
REPRESENTATIVE BUNDE clarified that this ramification existed for
the LLC, but not for the LLP.
MR. EZZELL said that this was correct.
Number 1170
JOE SCHIERHORN, Vice President, Commercial Lending, North Rim Bank
and President of the Alaska Bankers Association testified by
telephone. He stated that he has worked over the last several
years with the accounting industry representatives in Alaska as the
representative for the bankers on this issue. They've worked very
diligently and come to a good compromise between the two parties on
this legislation. It represents a good form of doing business for
the accountants and provides them with flexibility and insulates
them from some liability which would allow them to further increase
their practice and do business across state lines in the way they
wish. From the bankers perspective, they are comfortable with the
various insurance provisions, financial standards and all in all he
thought it was a good bill which provides for adequate liability
provisions for people using the services of accountants, as well
as, providing them with flexibility to do their business in Alaska.
REPRESENTATIVE BUNDE noted that accountants were mentioned in
relation to this bill and asked if Mr. Schierhorn saw other
applications for this LLP option.
Number 1299
MR. SCHIERHORN stated that this was certainly possible. It's not
limited to accountants at all. The accountants have been the ones
most prominent in using this type of business organization around
the country. They and law firms are probably some of the largest
partnership organizations throughout the United States. It's
certainly open to other professions though.
CHAIRMAN PORTER mentioned that because the Judiciary Committee
dealt with the LLC legislation last year they are probably more up
to speed on this LLP legislation. He had reviewed this legislation
beforehand and thought that there were no great concerns with it.
He noted that the Commerce and Economic Development Department
participant, Mike Monagle and the Society for CPAs, George Ellgee
were in attendance to answer questions.
Number 1426
REPRESENTATIVE BUNDE made a motion to move HB 549 from the House
Judiciary Committee with individual recommendations and attached
fiscal note. There being no objection, it was so moved.
SB 211 - VULNERABLE PEOPLE:NEGLECT/ASSAULT/ABUSE
Number 1511
CHAIRMAN PORTER introduced Senator Johnny Ellis as sponsor of SB
211 to testify.
SENATOR JOHNNY ELLIS stated that he speaks for himself and a large
number of senior citizens who are interested in this legislation.
He noted that he had read a very disturbing article in the
Anchorage Daily News last year about some terrible cases of abuse
which were going on in a state licensed facility called Friendship
Home in Anchorage. He was shocked to learn from the Department of
Law that they do not currently have the appropriate statutory
authority to prosecute the kinds of crimes which occur to
vulnerable adults in these types of facilities.
SENATOR ELLIS offered that the crimes of assault and reckless
endangerment in statute now do not cover neglect or many kinds of
abuse to vulnerable adults. Bills have been passed before where
they thought these types of problems were taken care of but, this
bill sets out to clarify the law regarding this issue. The
definition of vulnerable adult does not include just senior
citizens, but also include the developmentally disabled population
and mentally incapacitated adults as well.
SENATOR ELLIS noted that it is the law currently to report abuse
and neglect, but the law "peters" out after that. The penalties
proposed in this bill would make endangering the welfare of a
vulnerable adult in the first degree becomes a Class C felony
punishable by a jail term of up to five years and a $50,000 fine.
Endangering the welfare of a vulnerable adult in the Second degree
would become a Class A misdemeanor with a punishable jail term of
up to a year and a $5,000 fine. Senator Ellis thought that this
would be the "teeth," with which the law needs in order to go after
the people who would do vulnerable Alaskans harm. 23 other states
have abuse and neglect laws criminalizing these types of bad acts.
SENATOR ELLIS said he brings this legislation at a time when Alaska
has the fastest growing per capita senior citizen population in the
nation. At a time when they encourage as part of state policy the
formation of assisted living group homes, this kind of continuum of
care for vulnerable adults between a time when they are no longer
able to live independently in their own homes to the time when they
go into more expensive and intensive nursing care is important.
Assisted living is a growth industry in the state and the state
licenses these facilities. People should be able to expect that
when vulnerable adult family members go into these homes and a case
of abuse or neglect transpires that the state will have the
enforcement power to at least seek justice for the wrong done.
Number 1665
REPRESENTATIVE TOOHEY asked if this legislation addressed abuses in
the home or in nursing home care facilities.
SENATOR ELLIS responded that this legislation addresses state
licensed facilities, meaning nursing homes, assistant living homes
and those types of facilities for care of vulnerable adults which
the state has purview over. There had been suggestions that the
legislation should expand to a broader application of situations
covered. It would be extremely problematic if they said this
applied to every care giving situation in the state or to
situations which are not licensed by the state of Alaska. He used
the example of someone checking in on an elderly neighbor next door
who could meet the definition of a vulnerable adult. Once this
person is checked on in a good samaritan arrangement, if that
person was never checked on again, the good samaritan might be
guilty of a crime of neglecting this vulnerable adult. He added
that this legislation might discourage good samaritan behavior.
Number 1820
REPRESENTATIVE JOSEPH GREEN asked why a section of this legislation
specifically addressed situations where police officers sexually
abuse someone.
SENATOR ELLIS responded that this was not an original piece of his
legislation. This language was offered as an amendment by Senator
Halford on the floor of the Senate. There was no objection in the
Senate to this amendment. Senator Halford sought to address some
issues raised in a letter relating to a case which occurred on the
Kenai Peninsula. This amendment strove to make more explicit in
the law, the responsibility of police officers and they're
relationship to underage people who might be under their authority.
He thought it would be wise if someone else spoke to this issue
someone who might be more familiar with the situation as
referenced.
Number 1887
REPRESENTATIVE TOOHEY referred to a document generated by the
Statewide Division of Administration which clearly showed that 76
percent of the abusers of vunerable adults are family members. She
noted that if this 76 percent is not being addressed it should be.
CHAIRMAN PORTER noted that there might be a proposed amendment
offered to address this issue. He asked Senator Ellis if he had
seen this amendment.
SENATOR ELLIS said he had not. He understood that a lobbyist had
a proposal to make an amendment.
Number 1955
CHAIRMAN PORTER again addressed Sections 3 and 4 dealing with
sexual assault and police officers. He stated he was offended by
the language and he stated if it didn't offend Senator Ellis, he
said he would try to convince someone here to delete it.
SENATOR ELLIS said he would leave this to Chairman Porter's good
judgment.
Number 1975
JACKIE ORTELLI, Representative for Denali Center; Home and
Community Care, Fairbanks Community Hospital; License Guide
Organization, Joint Commission Accredited; Chairman, Long Term Care
Committee for Alaska State Hospital and Nursing Home Association
(ASHNHA) testified on SB 211. She stated that she generally
supported the bill, but thought it might be too narrow.
Specifically, she was concerned about families who might hire
caregivers as independent contractors, they might be certified as
a nursing assistant or a personal care attendant.
MS. ORTELLI stated that she was also concerned about independent
homes which might not be licensed by the state and what might be
going on in these home under the guise of care giving. With this
in mind, she shared this information with the Alaska State Hospital
and Nursing Home Association when reviewing the legislation. They
decided to propose an amendment which would truly looked at the
fact that people don't always live and stay in a nursing home.
They don't always live in a skilled environment. They might
eventually go back out into their communities.
MS. ORTELLI believed that two pieces of this legislation needed to
be looked at, she noted that a person is potentially vulnerable
even if they don't live at Denali Center or in an unlicensed home.
The other forms of care giving should not be excluded from the
intent of this bill. She also referenced the definition of what a
caregiver means. She made the argument that a standard of care
should be consistent for homecare of less than tow individuals, the
same that she would have to report when a person is in Denali
Center or in a licensed home care program, however, if someone is
in a home and the services are being rendered by a nurse, an aid,
a personal care attendant, or someone who is not associated with a
licensed agency, a person is still vulnerable.
MS. ORTELLIS said that lastly there was a statute which talks about
protective services and the definition of caregiver in this statute
is someone who is providing care to a vulnerable adult as a result
of a family relationship or who has assumed responsibility for the
care of a vulnerable adult voluntarily, by contract, court order,
or is an employee of an out-of-home care facility which provides
care to one or more vulnerable adults.
MS. ORTELLIS stated again that she was supportive of reporting
abuse and of penalties to abusive situations, she just cautioned
that the legislation is too narrowly focused by referencing
licensed facilities and vunerable people don't always live in these
facilities.
Number 2160
REPRESENTATIVE BUNDE referenced the police officers clause and
asked about the validity of this section.
MS. ORTELLIS stated that she spoke more to the narrow scope of the
legislation.
REPRESENTATIVE TOOHEY stated that she'd like to see physician added
to the list of providers outlined in the legislation.
Number 2192
MS. ORTELLIS referred to current laws which govern nursing homes,
these being the OPA regulations, state statute 42 CFR and they have
an accountability to report whether there's a volunteer who comes
into their facility under an abusive situation, whether a family
member who walks in or a public person, whether a physician or
staff are abusive, so their accountability of existing abuse clause
includes physicians. She spoke to the direct caregivers providing
service in communities that they may in all good faith want to
protect vulnerable adults as the intent of bill sets out to do.
MS. ORTELLIS went on to add that their responsibility is to report
abuse and until it's been determined that abuse has taken place,
this is called suspected abuse. They simply report their findings,
they then internally do an investigation and they report to the
Division of Senior Services.
Number 2252
CHAIRMAN PORTER asked Ms. Ortellis about the concern of checking in
on a next door neighbor who might become vulnerable to prosecution
by not following up on what was a good samaritan act.
MS. ORTELLIS noted that she was looking at the caregiver directly.
If someone hires a caregiver in their home and the wife of the
vulnerable person would want to know that they could call for an
investigation if they need to. She said she was not suggesting
that they should be everybody's keeper and to be spies, she was
trying to bring to the committee's attention an avenue which is not
included in the bill.
CHAIRMAN PORTER wondered if she would say that someone who dropped
in to check on their vulnerable next door neighbor and then went on
a planned vacation has established some liability.
MS. ORTELLIS stated that if they were working with a person in a
home setting and they walk into this home, they suspect abuse then
they're accountable to report this.
REPRESENTATIVE TOOHEY asked about a situation where the vulnerable
adult is being abuse by a family member, who would they report it
to.
MS. ORTELLIS said that currently they report to the Division of
Senior Services. Their current policy has recently been revised by
Division of Licensing and Certification.
Number 2398
JANE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault testified on SB 211. She stated on behalf of the
Council that they support this bill. She said there were questions
about Section 3 & 4, although the Council doesn't have an opinion
about these sections since they haven't had a chance to discuss
them. Currently, law enforcement officers who use their position
of authority in committing 3rd or 4th degree child sexual abuse can
be charged presently. Their initial thoughts on this was that they
didn't think these sections were necessary.
MS. ANDREEN stated that overall, the council thought this
legislation does an excellent job in expanding sexual assault cases
and the definition of a caregiver who sexually abuses a vulnerable
adult by making it anyone who operates under license by the state.
MS. ANDREEN added that they support both Sections 5 and 6 with
vulnerable adults and the penalties for abuse. Vulnerable adults
are the elderly and people who are not capable of taking care of
themselves. They are subject to a greater risk of abuse in their
living situation, both sexually and physically. The council feels
it's important to provide as much protection as possible.
Number 2475
REPRESENTATIVE TOOHEY asked if there was any overlap of this
legislation with current law.
CHAIRMAN PORTER stated that he wanted to request that Anne
Carpeneti come forward to testify on these types of questions.
TAPE 96-48, SIDE B
Number 000
ANNE CARPENETI, Assistant Attorney General, Department of Law came
forward to answer questions regarding SB 211. She responded to
Chairman Porter's concern of the sections of legislation dealing
with sexual assault by a police officer. Ms. Carpeneti stated that
she had read the letter which was apparently the impetus for this
amendment on the Senate floor. Right now a police officer who
doesn't use his or her position as a police officer as any sort of
position of authority or influence over a person may have sexual
relations with a 16 or 17 year old. If this relationship changes
to a point where there is a belief a position of authority was used
to influence this other people, this would be prosecutable
presently under Alaska statute.
Number 069
REPRESENTATIVE GREEN stated that he still had some concern about a
police officer being spelled out specifically in this legislation.
He asked if there was another place in law which specifically sets
out other professions, such as doctors, medical assistants, etc.
MS. CARPENETI responded that subsection A, page 3, line 6 prohibits
a person being 18 years of age or older to engage in sexual
penetration with a person who is 16 and at least three years
younger than the offender. The offender must occupy a position of
authority in relation to the victim. This position of authority is
defined in Alaska's statutes.
Number 121
REPRESENTATIVE BUNDE made a motion to remove Sections 3 and 4 from
SB 211 and to renumber it according. There being no objection, it
was so moved.
MS. CARPENETI read the definition of a position of authority which
currently exists in statute. Police officers are mentioned
specifically in this definition because they have a higher level of
responsibility when in custodial control.
Number 195
REPRESENTATIVE BUNDE made a motion to move amendment number 2 which
was offered by the Alaska State Hospital and Nursing Home
Association. (The text of this amendment can be found in the bill
packet.) Chairman Porter objected for discussion purposes.
SENATOR ELLIS said that this amendment was a surprise to him. He
stated that he hadn't had sufficient time to review it in depth.
He said he sympathized with the impulse to try and cover everybody,
but he thought that this was problematic for legal reasons.
Senator Ellis said he would defer to Ms. Carpeneti to explain these
problems. He did have a proposal for expanding the coverage to
address some of the concerns raised. First, Ms. Carpeneti
addressed the legal issues.
Number 254
MS. CARPENETI stated that she hadn't either had much time to review
this amendment, but her initial reaction was that this amendment
was too broad. She had a policy concern that if this legislation
allowed for criminal sanctions that a source of care to vulnerable
adults would be cut off.
REPRESENTATIVE TOOHEY made her point again about neglecting to
include 76 percent of these vulnerable adults situations where
abuse takes place in a private home which is not part of a nursing
home or caregiver program. She asked if these situations might be
provided for in other areas of law.
MS. CARPENETI noted that these situations are not specifically
covered by criminal law.
Number 351
CONNIE SIPE, Division of Senior Services, Department of
Administration testified on SB 211. She stated that the definition
of caregiver which this amendment proposes is in the civil adult
protective services statute passed two years ago, but it is only
mentioned in two places in this act and it includes volunteers,
family members, etc. It is in the list of people who are both
required to report abuse of a vulnerable adult and by this
requirement are given civil and criminal immunity for this report.
If the volunteer reports on a family member abusing, because they
are in the "required to report" section they also get the immunity.
This statute was written for a purpose that was to encourage
reporting of abuse. No where in the civil adult protective
services statutes does it say that "this is a list of people who
can be charged with adult abuse." It was written for a different
purpose. She assumed that charges could be brought under assault,
for example, but there wasn't clarity as to whether these licensed
and certified professionals could be specifically prosecuted for
neglect, failure to support or for abandonment.
CHAIRMAN PORTER asked if all of these abusers could be civilly
prosecuted.
MS. SIPE noted that the civil adult protective services statute
doesn't have civil prosecution allowances. If there is an
allegation they can offer services, if what they find in the
investigation are criminal in nature they can refer it to the
District Attorney or they can sue for an injunction to keep this
alleged perpetrator from further exploitation.
CHAIRMAN PORTER more specifically wanted to know if a family member
of the abused could sue civilly.
MS. CARPENETI said she would like to research this more, but
assumed that someone could bring a lawsuit under the theory of
negligence and ask for monetary damages or an injunction.
Number 490
SENATOR ELLIS acknowledged that there was a concern about non-
licensed care giving facilities, but made the argument as a balance
that to criminally prosecute family members for care giving would
create a disincentive to care for vunerable adults. The state
can't afford to take care of all senior citizens and vulnerable
adults with government money. Where someone is taking care of less
than two vulnerable adults in a private home, the state allows this
type of small operation without licensure. A very simple amendment
would significantly expand the coverage of this bill.
SENATOR ELLIS referenced page 3 of the bill on line 30 and to
suggested to add the phrase "by contract" in the already existing
language, before the words "by authority of law." This amendment
would read, "(A) by contract or by authority of law; or." He
explained that there are people in this situation who are
contracting with a caregiver to provide services. This language
would cover these situations.
Number 590
MS. SIPE responded to a question by Representative Toohey about how
many adults can be cared for in a private home. Under the
assisted licensing law passed two years ago there is voluntary
licensure if someone as a homeowner bring one to two adults into
their home, who are not their relatives and care for them for
money. These providers don't have to be licensed. If they do opt
to license themselves there are tax and workers compensation
advantages to do so.
SENATOR ELLIS referring back to his suggested amendment pointed out
that it does provide broadening of coverage and it's relatively
simple to do and the state allows this activity to occur and
actually encourages it. This is why they don't provide licensure.
This is the justification for the increased penalties and
protections for vulnerable adults in licensed facilities because
the state has a handle on these facilities and people expect that
when the state licenses a facility that there will be sanctions for
bad acts against the relatives. These small operations don't come
under the state's purview, but there is a profit motive involved,
they do want to encourage these types of contractual arrangements
outside of government financing.
Number 734
REPRESENTATIVE BUNDE withdrew the amendment as proposed by the
Alaska State Hospital and Nursing Home Association and offered the
amendment number 2 as outlined by Senator Ellis and additionally
suggested to insert this same language on page 4, line 11 as well.
There being no objection, it was so moved.
REPRESENTATIVE BETTYE DAVIS made a motion to move CSSB 211(RLS)
from the House Judiciary Committee as amended with individual
recommendations and attached fiscal note. There being no
objection, it was so moved.
Number 800
MS. CARPENETI made the suggestion that the language regarding
sexual abuse be removed from the title since it was added at the
same time this bill was amended on the Senate floor, which was to
allow for the language regarding police officers now deleted. It
was decided after some discussion that this clause did not
substantially affect the intent of the legislation to warrant
removal.
SB 268 - PRETRIAL RELEASE FOR CERTAIN OFFENSES
MR. MICHAEL PAULY, staff to Senator Leman came forward to read the
sponsor statement regarding SB 268 into the record.
"Mr. Chairman, Members of the Committee, for the record my name is
Michael Pauly, staff for Senator Leman, the sponsor of Senate Bill
268.
This legislation was introduced to address the serious problem of
drug offenders committing additional crimes while they are out on
bail, awaiting trial. The Anchorage Police Department has reported
numerous instances of these offenders who are released on bail
being arrested on the same or similar charges, even before trial
has occurred on the original offense. It is our understanding that
other police departments in the state have experienced similar
problems.
Senate Bill 268 would amend Alaska statutes to require the courts
to consider setting specific conditions on pre-trial release. For
example, the courts could set a curfew time and prohibit the
defendant from associating with certain persons or visiting certain
places where controlled substances are known to be distributed or
used. The court could prohibit the use of cellular phones and
other communication devices which are commonly used in the drug
trade. In addition, the defendant could confined to his or her
residence, the defendant could be required to undergo drug or
alcohol testing, or submit to police searches for controlled
substances.
The violation of one or more of these conditions would be grounds
for bringing the defendant back into custody, and would therefore
empower both the courts and the police departments to protect the
public with these flexible conditions on pre-trial release.
I want to mention that Senate Bill 268 was amended on the Senate
floor so that the pre-trial release conditions will also apply to
violations of alcoholic beverage laws. Specifically, the amendment
broadens the scope of the bill to include violations of alcohol
license or permit requirements, and to violations of the law in
local option areas which have elected not to permit the sale,
possession, or production of alcoholic beverages.
Senate Bill 268 has been endorsed by the Municipality of Anchorage
and the Advisory Board on Alcoholism and Drug Abuse with the
Department of Health and Social Services."
Number 1096
REPRESENTATIVE GREEN asked if that in current law that these
restrictions cannot be imposed on probationers or that they can be
imposed, but they can't be verified without some other cause.
MR. PAULY stated that he was not aware that it is impossible for
these conditions to be put forth, but the legislation does require
that the courts shall consider the conditions and impose one or
more conditions it considers reasonably necessary to protect the
public safety and security. At least one of these conditions would
be required to be imposed as the court deems appropriate.
REPRESENTATIVE GREEN wondered if this was encouraging or supporting
what a judge may do as opposed to them ordering a person to do
something. Does this legislation change what a judge can do now.
MR. PAULY thought that this legislation definitely encourages a
judge and puts the options in statute, but it does state that one
or more of these conditions should be imposed. To this extent,
this legislation is saying that there will be no pre-trial release
without some strings attached.
Number 1200
CHAIRMAN PORTER referred to some restrictions on page 2, line 20
which came out of an Anchorage case according to his recollection,
regarding prostitutes returning to their "corners." As he
recalled, as a result of the case decision, the court bail
restriction was challenged and it was upheld. He thought there had
to be additional exceptions applied to the extent that if they had
lawful employment in this area or it they had to travel through
this area to get to and from work, etc. He asked Mr. Pauly if he
recalled any discussion regarding this issue.
MR. PAULY said that the language in the legislation before the
committee now had changed from the language in the original bill.
The original language was quite broad in scope, it simply said that
not to be present or within a designated area near certain
locations. This was where they started and this is how the
language has been refined and narrowed. Unfortunately, he was not
present during the discussion of this related amendment and
couldn't comment specifically whether or not it was drafted to
address the case which Chairman Porter referred to.
Number 1293
REPRESENTATIVE TOOHEY referred to page 2, line 18 where someone on
pre-trial could not be present around people who are drinking
alcohol. She used the example of a child being present at their
parent's home during pre-release while their parents were drinking.
She didn't know how picky they were going to be, but this could
mean having to throw out a perfectly good bottle of wine.
CHAIRMAN PORTER stated that under specific situations this would be
true.
MR. PAULY added that this language on alcoholic beverages was part
of the amendment which was introduced by Senator Adams on the
Senate floor and approved. He understood that this language was
added to give a judge discretion in a local option area where
consumption or sale of alcohol is not permitted. This would be a
legitimate condition in such a community.
Number 1383
CHAIRMAN PORTER generally asked about the language regarding
someone who cannot engage in illegal conduct during pre-trail and
wondered if this could be considered double jeopardy.
MR. PAULY said he was not aware as to whether this situation was
discussed. He deferred to the Department of Law.
Number 1445
DON DAPCEVICH, Executive Director, Governor's Advisory Board on
Alcoholism & Drug Abuse, Department of Health & Social Services
stated that the board supported this bill for two reasons, one, to
discourage illegal alcohol or illicit drug use because it is such
a big problem in our communities and when someone who sells drugs
is awaiting trial it inevitably reaches the people they try to
serve in a negative way. From a treatment aspect they are
concerned about this, but also they are concerned about this from
a prevention aspect in that there is a message to be delivered when
drug users are arrested and immediately are released back onto the
streets to sell drugs again.
REPRESENTATIVE TOOHEY asked about someone being released who has an
alcohol or drug problems and would this be taken into
consideration. She noted Alaska's bad stalking murders which take
place during pre-trial release and 90 percent of the time these
perpetrators have been on alcohol.
MR. DAPCEVICH noted that the original bill as he understood it when
presented on the Senate side had a provision that mandated
treatment. It was withdrawn. Their recommendation was not to
withdraw it, but rather require an assessment for treatment be
mandated as an option, but this wasn't included.
Number 1622
REPRESENTATIVE DAVID FINKELSTEIN stated that he assumed this
legislation would apply to everything in the world of drugs. He
asked Mr. Dapcevich if he had any sense from his experience whether
this would be applied to marijuana.
MR. DAPCEVICH said he assumed and hoped that it applied to
marijuana.
REPRESENTATIVE FINKELSTEIN asked if this was because of a fear that
someone would be using marijuana for a second time while they are
on probation.
MR. DAPACEVICH said that maybe this would be an issue, but the more
paramount issue was the sale of this marijuana.
Number 1715
JANE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault came forward to testify and commented on Section 2
of the legislation which pertains to conditions to release and
domestic violence cases. The Council felt that this Section
strengthens the court's ability to order the necessary conditions
for releasing (indisc. - trailed off.)
REPRESENTATIVE FINKELSTEIN noted the terms and conditions of
release under this Section and it's reference to conditions set out
under AS 12.30.020. He asked what these conditions were.
Number 1798
CHAIRMAN PORTER read these conditions regarding restrictions on
travel, custody, etc., outlined in AS 12.30.020.
REPRESENTATIVE TOOHEY referred to the stalking provisions again.
If someone is stalking a victim, along with other illegal
behaviors, she asked if stalking would keep these people in prison
regardless.
CHAIRMAN PORTER said that this was not the case and cited the
presumption of innocence which drives the necessity for bail in all
cases, including stalking.
Number 1966
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law answered some questions which were brought up
during the on-going testimony. She noted that all of these
conditions in this pending legislation were discretionary, not
mandatory. In terms of the alcohol treatment, they had a concern
about the presumption of innocence in a pre-trial release, that
some alcohol treatments require some degree of relinquishment of
fifth amendment rights to admitting problems, etc.
MS. CARPENETI also addressed the double jeopardy issue. She stated
that if someone broke a law while they were released on bail they
could be charged with this crime. In this situation bail could be
denied this person, but this person could not then be charged with
the original charges, as well, as the crime during pre-trial
release.
Number 2090
REPRESENTATIVE FINKELSTEIN offered a conceptual amendment to remove
the simple possession of marijuana listed under schedule 6 (a) of
the drug categories from the bill. He felt as though the bill was
great and made a lot of sense, but the one thing which doesn't fit
is this particular possession and the proposed penalties. He used
the example of some young person charged with minor possession and
on pre-release not being allowed to associate with someone using
drugs or alcohol. He noted statistics of Alaskans under the age of
thirty to some degree use marijuana, some 28 percent. He also used
the argument of individuals using cellular phones for their jobs.
He also noted the constitutional ramifications of simple possession
of marijuana.
CHAIRMAN PORTER made the argument that these conditions outlined in
this present legislation were discretionary and the court will
consider these things when reasonably necessary. "I doubt very
seriously if many courts would deem all of these things on an
eighteen year old that was caught with a joint, but at the same
time I don't want to make an exception for an eighteen year old
with a joint because somebody might get the wrong impression that
we don't think that's a serious offense and some of us do." He
guessed he would object to this amendment.
TAPE 94-49, SIDE A
Number 043
CHAIRMAN PORTER requested a roll call vote. Conceptual amendment
number one failed.
REPRESENTATIVE TOOHEY made a motion to move CSSB 268(JUD) with
individual recommendations and attached zero fiscal notes. There
being no objection, it was so moved.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 2:47 p.m.
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