Legislature(1999 - 2000)
02/02/2000 01:41 PM House JUD
| Audio | Topic |
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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
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.
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