Legislature(2003 - 2004)
04/15/2003 03:12 PM House MLV
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON MILITARY AND
VETERANS' AFFAIRS
April 15, 2003
3:12 p.m.
MEMBERS PRESENT
Representative Bob Lynn, Chair
Representative Beverly Masek, Vice Chair
Representative Hugh Fate
Representative Bruce Weyhrauch
Representative Sharon Cissna
Representative Max Gruenberg
MEMBERS ABSENT
Representative Nancy Dahlstrom
COMMITTEE CALENDAR
HOUSE BILL NO. 245
"An Act relating to certain suits and claims by members of the
military services or regarding acts or omissions of the
organized militia; relating to liability arising out of certain
search and rescue, civil defense, homeland security, and fire
management and firefighting activities; and providing for an
effective date."
- MOVED CSHB 245(MLV) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 10
Requesting the United States Congress to support the speedy
deployment of a national missile defense system.
- MOVED HJR 10 OUT OF COMMITTEE
HOUSE BILL NO. 228
"An Act relating to state employees who are called to active
duty as reserve or auxiliary members of the armed forces of the
United States; and providing for an effective date."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 14
Relating to urging that the 2006 National Veterans Wheelchair
Games be held in Anchorage, Alaska.
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 245
SHORT TITLE:SUITS & CLAIMS: MILITARY/FIRE/DEFENSE
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
04/04/03 0777 (H) READ THE FIRST TIME -
REFERRALS
04/04/03 0777 (H) MLV, JUD, FIN
04/04/03 0778 (H) FN1: ZERO(LAW)
04/04/03 0778 (H) FN2: ZERO(DNR)
04/04/03 0778 (H) FN3: INDETERMINATE(ADM)
FORTHCOMING
04/04/03 0778 (H) GOVERNOR'S TRANSMITTAL LETTER
04/04/03 0778 (H) REFERRED TO MLV
04/08/03 0859 (H) FN3: INDETERMINATE(ADM)
RECEIVED
04/11/03 (H) JUD AT 1:00 PM CAPITOL 120
04/11/03 (H) <Bill Hearing Postponed>
04/15/03 (H) MLV AT 3:00 PM CAPITOL 124
BILL: HJR 10
SHORT TITLE:NATIONAL MISSILE DEFENSE SYSTEM
SPONSOR(S): REPRESENTATIVE(S)MCGUIRE
Jrn-Date Jrn-Page Action
02/05/03 0130 (H) READ THE FIRST TIME -
REFERRALS
02/05/03 0130 (H) MLV
02/05/03 0130 (H) REFERRED TO MLV
02/07/03 0152 (H) COSPONSOR(S): LYNN
04/15/03 (H) MLV AT 3:00 PM CAPITOL 124
BILL: HB 228
SHORT TITLE:STATE EMPLOYEES CALLED TO MILITARY DUTY
SPONSOR(S): REPRESENTATIVE(S)KERTTULA
Jrn-Date Jrn-Page Action
03/31/03 0712 (H) READ THE FIRST TIME -
REFERRALS
03/31/03 0712 (H) MLV, STA, FIN
03/31/03 0712 (H) REFERRED TO MLV
04/07/03 0831 (H) COSPONSOR(S): LYNN
04/15/03 (H) MLV AT 3:00 PM CAPITOL 124
WITNESS REGISTER
GAIL VOIGTLANDER, Assistant Attorney General
Special Litigation Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Presented HB 245, which was sponsored by
the House Rules Standing Committee by request of the governor;
answered questions on Version H.
BRAD THOMPSON, Director
Division of Risk Management
Department of Administration
Juneau, Alaska
POSITION STATEMENT: Answered questions on HB 245, Version H.
ROBERT DOEHL, Assistant Attorney General
Special Litigation Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Explained reasons for how Sections 3-6 of
HB 245, Version H, are constructed.
DEAN BROWN, Deputy Director
Division of Forestry
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 245.
HEATH HILYARD, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HJR 10 on behalf of
Representative McGuire, sponsor.
STACEY FRITZ
No Nukes North
Fairbanks, Alaska
POSITION STATEMENT: Expressed concerns about HJR 10 and that
the missile defense system does not and cannot work, noting that
she'd recently completed her master's thesis on the subject of
missile defense.
RYAN TINSLEY, Member
Fairbanks Coalition for Peace and Justice
Fairbanks, Alaska
POSITION STATEMENT: During hearing on HJR 10, asked what the
cost will be for this still-unworkable missile defense system
and how it will affect social services including health care,
education, and social security; suggested money spent on foreign
aid might alleviate some of the need for this system.
STEVE CLEARY, Organizer
Citizens Opposed to Defense Experimentation (CODE);
Executive Director
Alaska Public Interest Research Group (AkPIRG)
Anchorage, Alaska
POSITION STATEMENT: During hearing on HJR 10, related concerns
about dangers to Alaska and a false sense of security; suggested
money would be better spent helping veterans and meeting
homeland security needs.
REPRESENTATIVE BETH KERTTULA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HB 228.
TRACY WENDT, Intern
for Representative Beth Kerttula
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 228 on behalf of
Representative Kerttula, sponsor; answered questions.
CHRIS HONSE, Lieutenant Commander, Director
U.S. Coast Guard Auxiliary for District 17
Juneau, Alaska
POSITION STATEMENT: Testified on HB 228 and answered questions.
JULIE BENSON
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of HB 228 as the wife
of a man who is a state trooper and a member of the Air National
Guard; called it essential legislation for state employees who
make the difficult choice to serve both their state and country.
DEBRA GERRISH
Juneau, Alaska
POSITION STATEMENT: Testified on HB 228 as the wife of an
officer in the Army National Guard who has served for 22 years;
emphasized the need for health benefits.
BUTCH STEIN
Fairbanks, Alaska
POSITION STATEMENT: Testified on HB 228, emphasizing how USERRA
applies to military personnel and that people in the Guard and
reserves should not be discriminated against either when going
into active duty or returning from that service.
ACTION NARRATIVE
TAPE 03-6, SIDE A
Number 0001
CHAIR BOB LYNN called the House Special Committee on Military
and Veterans' Affairs meeting to order at 3:12 p.m.
Representatives Lynn, Masek, Fate, and Gruenberg were present at
the call to order. Representatives Weyhrauch and Cissna arrived
as the meeting was in progress.
HB 245-SUITS & CLAIMS: MILITARY/FIRE/DEFENSE
Number 0111
CHAIR LYNN announced that the first order of business would be
HOUSE BILL NO. 245, "An Act relating to certain suits and claims
by members of the military services or regarding acts or
omissions of the organized militia; relating to liability
arising out of certain search and rescue, civil defense,
homeland security, and fire management and firefighting
activities; and providing for an effective date." [HB 245 was
sponsored by the House Rules Standing Committee by request of
the governor.]
Number 0134
REPRESENTATIVE MASEK moved to adopt the proposed committee
substitute (CS), Version 23-GH1025\D, as a work draft.
CHAIR LYNN announced that Version D was adopted without
objection.
Number 0210
GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation
Section, Civil Division (Anchorage), Department of Law,
presented HB 245 to the committee. She explained that it
discusses four areas of immunity for the state. The first is to
immunize search and rescue (SAR) activities conducted by the
Alaska State Troopers, which conducts approximately 400 of those
a year. This bill immunizes the Alaska State Troopers for both
the decision about when or if to commence a SAR activity and how
the activity is conducted. Ms. Voigtlander said it is
consistent with Alaska case law that immunizes negligent
investigation by the Alaska State Troopers or other police
agencies.
Number 0350
MS. VOIGTLANDER told members the second area relates to tort
claims by members of the Alaska National Guard and other
military members of the state militia. The bill adopts what is
known as the Feres doctrine. Taken from the name of a plaintiff
in a [U.S. Supreme Court case] and adopted by the federal
government and many states, the Feres doctrine says there cannot
be intramilitary torts between members of the military; for
example, a private cannot sue his sergeant in tort for an injury
sustained that is incident to military service. Thus the bill
puts into law that the Feres doctrine is applicable to bar
claims against the state.
MS. VOIGTLANDER asserted that those military members aren't left
without remedies. A member on active state duty and carrying
active state orders who is injured has workers' compensation
under the state. A member serving under federal orders - which
is the majority of the time - who is injured pursuant to those
orders has federal remedies that are the equivalent of workers'
compensation as well.
Number 0482
MS. VOIGTLANDER went on to say that this bill overrides Himsel,
a lawsuit filed as a result of an air crash outside of Juneau
some years ago; the parties included families of National Guard
members. She explained:
In that case, we won at the trial court level. It was
reversed on appeal, and our supreme court said that
they would not apply the Feres doctrine; they would
look to see whether ... what the action involved was
uniquely military and say, if it's not uniquely
military, they will allow the claim. Under the Feres
doctrine, the test is "incident to military service."
That opinion was a 3-2 opinion. ... The two justices
who dissented pointed out that the Feres doctrine is
founded on sound public policy, which is that the
courts should not involve themselves in second-
guessing military decisions, and also that it was poor
for military morale to allow intramilitary tort suits.
The dissent also went on to explain that that test of
discarding the "incident to military service" test in
favor of what our supreme court was saying, ...
whether it was uniquely military, was going to be very
difficult to interpret; it was not a bright line. And
so this section of the bill would deal with that issue
and bring Alaska back to the Feres doctrine concept,
which is, if you are injured, you have your workers'
[compensation] remedy.
MS. VOIGTLANDER, noting that Himsel settled after it was
remanded for trial, commented, "It will be appearing in the
capital budget later this session, and the state's share of that
judgment is $2.75 million."
Number 0678
MS. VOIGTLANDER reported that the third portion of the bill
relates to suits and claims arising from civil defense and
homeland security. Noting that currently Title 26 provides
immunity for civil defense, she offered her reading that "civil
defense" appears to have become a somewhat archaic term. Since
[the terrorist attacks of September 11, 2001] Alaska and other
states have moved into the "homeland defense" and "emergency
management" areas, for which the bill therefore extends
immunity. She told members that the original civil defense
statute has an exception to provide for certain claims, and said
an exception has been carried over in this portion of the bill.
Number 0775
MS. VOIGTLANDER turned attention to the state's duties and
obligations. She said she'd been told that after September 11,
2001, because of the related activities that must be conducted
in addition to emergency management, the federal government
cannot do everything and thus states are picking up more [of
these responsibilities]. She went on to say the federal
government was immune when it did activities; this is to carry
that [policy] over now that the state is picking up what used to
be considered civil defense but now has been expanded into
homeland defense.
Number 0826
MS. VOIGTLANDER told members the last portion of the bill deals
with suits arising from fire management and firefighting
activities; it would immunize "the state and employees and
others who work on these firefighting activities" from lawsuits.
She referred to Angnabooguk and a companion case, Bartek, noting
that the Alaska Supreme Court ruled in 2001 that while many
activities the state conducts in firefighting may be "immune
decisions," there may be decisions that aren't immune and thus
lawsuits can be filed.
MS. VOIGTLANDER said this [portion of the bill] is to immunize
that activity "to help conserve the resources of firefighting so
the firefighters are on the line fighting fires and doing fire
management and forest protection, rather than being pulled off
into civil litigation, which is very time-consuming for them as
well." Noting that AS 09.65.070 has immunity for municipal
firefighters, she said this would be consistent with "looking at
the fact that you need to have these people available to fight
fire, rather than defending civil lawsuits." She added, "Also,
it is to be more consistent with 9th Circuit [Court of Appeals]
law and general federal law, which immunizes firefighting
activities as well. Several other states as well immunize
firefighting activities."
Number 0970
REPRESENTATIVE MASEK referred to page 6, lines 8-13, and asked
how the bill would impact the current lawsuit over the Miller's
Reach fire of 1996.
MS. VOIGTLANDER specified that this bill wouldn't have
retroactive effect and wouldn't apply to the pending case. It
would only have prospective effect for future claims that might
occur after the effective date of the legislation.
Number 1052
REPRESENTATIVE FATE referred to proposed language on page 3,
lines 22-25, which read:
A person is not entitled to death benefits as
specified in AS 23.30.215 for a member of the
organized militia who dies as a result of an injury or
disability suffered in the line of duty but who had
not been ordered into active state service by the
governor under AS 26.05.070.
REPRESENTATIVE FATE posed a scenario in which a lieutenant
orders a private to do something that results in severe injury
or death for the private. That person would be acting in the
line of duty? If the governor hadn't ordered that unit into
state service, he asked, would the state be waived from
liability for the person who died as a result of a direct order
in the line of duty.
Number 1162
MS. VOIGTLANDER said she believed the provision referred to is
"the homeland security," but that she would answer in regard to
the Alaska National Guard because she believed that was what
Representative Fate's question addressed. She said:
People who are serving in the Alaska ... militia or
the Alaska National Guard are going to be responding
either to a state call-out and have state orders, or a
federal call-out and have federal orders. So if they
are injured incident to duty because they're on that
call-out, then if it's a state order they will have
state workers' compensation remedies; if ... they're
carrying federal orders, they have federal workers'
compensation benefits.
Number 1223
REPRESENTATIVE FATE pointed out that it just says "organized
militia". He then referred to page 5 [lines 7-8], which adds
the language "vaccination and other actions to protect public
health" under "civil defense". He posed a situation in which a
response to a vaccination results in death because of not
knowing the person's history to the extent of knowing there was
an allergy. He asked whether liability would be waived in that
instance.
MS. VOIGTLANDER said that provision is under the homeland
security provisions, under which the person wouldn't have a
claim unless the exception on page 4, lines 8-10, applied.
However, a person who was an employee that was injured because
of the vaccination, if the vaccination was necessary for
employment, would have workers' compensation benefits available;
what entity that person was employed by would determine whose
workers' compensation would kick in.
Number 1443
MS. VOIGTLANDER, in response to questions from Representative
Weyhrauch, reiterated that under the existing case law in
Himsel, a member of the military - if that person is not
considered a state employee but is a federal employee - could
have a tort claim against the state. However, this bill draws a
bright line by saying that if the injury is incident to military
service, then whoever is injured cannot sue the state on any
theory - either direct or vicarious liability - for damages.
People would be limited to workers' [compensation] or other
benefits, either through the state or through the federal
government, depending on what papers they're carrying.
MS. VOIGTLANDER, in further response to Representative Weyhrauch
about how many states have adopted that bright-line test, said
there are several states and that the Himsel case - in the
dissent section written by Chief Justice Matthews and Justice
Eastaugh at note 13, page 45, of the opinion - cites to the
federal cases as well as state cases that adopt the Feres
doctrine.
Number 1593
REPRESENTATIVE WEYHRAUCH asked, if this bill became law and a
military person was injured through negligence at the hand of a
state official, whether that person could recover under other
sorts of doctrines or theories [of law].
MS. VOIGTLANDER answered, "If it's for personal injury - it's a
bodily injury or death - the answer would be no.
REPRESENTATIVE WEYHRAUCH asked whether, except for workers'
compensation or other insurance that may be available to the
person, that would be the extent of recovery.
MS. VOIGTLANDER said she believed so, unless there was a third
party involved.
Number 1678
REPRESENTATIVE MASEK asked about the title change from the
original bill and why it now relates to workers' compensation
and death benefits for members of the organized militia.
MS. VOIGTLANDER surmised that those are editing changes from
legislative legal counsel, saying she hadn't spoken with anyone
about why that title change occurred. She went on to say that
she'd gone through [Version H] and found that nothing in the
bill changes workers' compensation benefits under existing
statute; however, there is reference within the bill to workers'
compensation "because of the intramilitary tort discussion we've
had, saying that you can't sue in court but you do have workers'
compensation benefits." She referred to Sections 12 and 13 and
noted that the legislative drafters also had changed "civil
liability" to "civil immunity" in the titles for those sections.
Number 1903
MS. VOIGTLANDER, in response to Representative Gruenberg,
explained that Section 2 has the search-and-rescue provisions,
Sections 3-6 have to do with the Feres doctrine issue, Sections
7-11 deal with homeland defense immunity, and Sections 12-13
deal with firefighting activities. She said because these are
grafted onto existing statutes, the bill required a number of
changes, and hence so many sections are implicated.
Number 2008
MS. VOIGTLANDER, in response to a question from Representative
Gruenberg, affirmed that Sections 12 and 13 are the same.
However, [Section 12 amends] AS 41.25, which governs protection
of forestland from fire and other destructive agents, whereas
[Section 13 amends] AS 41.17, which is the Alaska Forest
Resources and Practices Act.
Number 2062
REPRESENTATIVE GRUENBERG asked whether these people will have
any remedy.
MS. VOIGTLANDER answered that a person killed because of a
wildfire wouldn't have a remedy against the state for tort
damages if this passes.
REPRESENTATIVE GRUENBERG asked what remedy they would have, and
whether their families would go homeless and hungry.
MS. VOIGTLANDER answered, "In terms of bodily injury, they would
not have a remedy against the state." She added, "In many
immunity provisions, it does result in someone being without a
remedy."
REPRESENTATIVE GRUENBERG asked what plan the state has to take
care of these people and their survivors.
MS. VOIGTLANDER said it is more a policy issue than a legal one.
As a matter of legal interpretation of statutes, she said she
didn't know what other programs or benefits existed, but offered
to find out. She said federal programs kick in when there are
wildfires; for example, the Federal Emergency Management Agency
(FEMA) offers assistance to individuals and municipalities.
Noting that normally it's an issue of property damage, she said
that normally the remedy is that people have a fire-insurance
policy, but that she didn't know whether it would cover a death.
Number 2180
REPRESENTATIVE GRUENBERG asked whether this bill immunizes the
state against property owners and civilians, just firefighters,
or everybody.
MS. VOIGTLANDER answered that it immunizes the state from tort
lawsuits "from whatever source, so it would be tort lawsuits
from someone who was injured through the fire." She reiterated
that a firefighter who was injured would have workers'
compensation remedies.
REPRESENTATIVE GRUENBERG referred to Section 2 and search-and-
rescue personnel. He asked whether this immunizes them from
suits by the victim or personnel or both.
MS. VOIGTLANDER responded, "This immunizes them from suits from
third parties." She reiterated that state personnel would have
workers' compensation remedies.
Number 2259
REPRESENTATIVE GRUENBERG inquired about volunteers. He recalled
a supreme court case that arose from the 1964 earthquake: a
volunteer who went to Seward was swept out to sea, and it was
held that the person [didn't qualify for] workers' compensation.
Thus Representative Gruenberg said he'd offered an amendment
[during an previous legislative session] to cover such a person,
which passed. He asked whether this bill would roll that back
so a volunteer and any survivors would [not even qualify for
that benefit].
MS. VOIGTLANDER said she didn't know enough about workers'
compensation to respond, but would research the issue. She said
she knows there are some situations in which volunteers are
covered by workers' compensation.
Number 2354
BRAD THOMPSON, Director, Division of Risk Management, Department
of Administration, responded that the statutory benefit for
workers' compensation isn't affected by this legislation. He
added that the state has a policy of extending benefits - not
through statute, but through operating agreements - to
volunteers that help with SAR activities. He explained:
We have a volunteer service agreement; it's basically
a contract. It allows the person that helps us help
the public a remedy such that if they are not already
protected by either workers' [compensation] - because
many of them do have [workers' compensation coverage]
because they come to us in their employment - or ...
other remedies from their employer, we will protect
and pay their medical bill and, in fact, commit to
give them the basic minimums of workers' compensation
benefits. Now, that's a contractual obligation that
we have extended to the volunteer in respect and
response to them coming forward and helping us. And
that, again, is not affected by this legislation.
Number 2414
REPRESENTATIVE GRUENBERG asked whether each individual has to
sign the contract.
MR. THOMPSON answered that as they are signed up by the SAR
coordinator, usually the officer in command, they are signed on.
"Often, the rosters are completed following the search, to be
quite candid," he added. "But at least then we know who's in or
who's out of this arrangement."
Number 2425
CHAIR LYNN asked, if the practice is to sign up afterwards, what
happens if [the person is killed before being able to sign].
MR. THOMPSON replied, "We've not yet faced that, but we do know
it is a commitment from the state to protect these individuals.
And we would extend that commitment."
CHAIR LYNN inquired about any statutory commitment to that.
MR. THOMPSON said it is policy and practice. He added that
during a declaration of disaster, people who volunteer are
covered by the statutory definition of employment that
[Representative Gruenberg's amendment to a bill in a previous
legislature] addressed. He clarified that he was speaking about
SAR volunteers and other individuals who help the state perform
its duties.
Number 2495
REPRESENTATIVE GRUENBERG referred to Representative Fate's
earlier question about the militia. Specifying that he was
looking at the [new proposed] language in Sections 5 and 6, he
offered his understanding that it relates not to the National
Guard, but to the organized militia.
MS. VOIGTLANDER replied:
These are amendments to the existing statutes, AS 26,
and so Section 4 relates to the military service as
well as the Alaska militia; Section 5 relates to the
organized militia, presumably - and I don't have the
statutes in front of me - because the section that is
amended is the section that relates to the organized
militia. The only amendment to that section is that
final language at lines 12-15. And Section 6, again,
is the organized militia. And the only change to that
is lines 22-25. ... But the change that we're talking
about is reflected in Sections 3-6, to pick up both
the Alaska National Guard and members of the organized
militia.
Number 2615
REPRESENTATIVE GRUENBERG said he was focusing on the organized
militia here. He noted that Section 5 says that members of the
organized militia who haven't been ordered into active state
service aren't entitled to workers' compensation, and that
Section 6 says the same people aren't entitled to death
benefits. He asked what remedies they or their survivors have
if they're on an emergency assignment but haven't been called up
by the governor.
MS. VOIGTLANDER answered, "My limited understanding of the
organized militia is that they would be called out through a
governor's order."
REPRESENTATIVE GRUENBERG suggested there must be certain
circumstances when that isn't the case, however; otherwise,
these amendments wouldn't have been offered.
MS. VOIGTLANDER said what she doesn't know is whether "they have
a federal counterpart." She noted that there was someone from
"that agency" present who perhaps could answer.
Number 2679
REPRESENTATIVE CISSNA asked about people who are reacting to a
terrorist activity, for example, immediately afterwards. She
expressed amazement at how much isn't covered, and echoed
concerns that people won't be taken care of.
MS. VOIGTLANDER surmised that Representative Cissna's concern
wasn't so much about tortious conduct of the state, but about
whether volunteers who respond to an emergency are covered. She
said that is a slightly different issue because it isn't
necessarily an issue of being harmed through state action. In
the 1964 earthquake, for example, if someone was injured while
trying to pull someone from a crevasse, there wouldn't be a tort
mechanism against the state because the crevasse wasn't of the
state's making. As to whether such a volunteer would have some
compensation for an injury, she said that isn't an issue she
could address. "This is defensive activity; yours is more
offensively what would the state provide," she suggested.
REPRESENTATIVE CISSNA clarified, to the contrary, that her
concern arises from talking with numerous people through the
years who are trying to get workers' compensation to work for
them, trying to prove something [in order to qualify for
benefits]. She said this feels as if more attorneys are needed
for each person in order to ensure coverage. She sought
assurance that it isn't so.
REPRESENTATIVE GRUENBERG referred to page 5, line 7 [Section 9].
TAPE 03-6, SIDE B
Number 2983
REPRESENTATIVE GRUENBERG surmised, if a health care worker were
treating someone and contracted the disease, that this would
immunize the state against [a lawsuit]. He also asked whether
[workers' compensation] would be the only remedy, no matter how
negligent the state had been.
MS. VOIGTLANDER referred to Section 7, subsection (b), which
proposes an exception "when malice or reckless indifference to
the interests, rights, or safety of others is shown by clear and
convincing evidence."
REPRESENTATIVE GRUENBERG observed that "clear and convincing
evidence" is a much higher standard than the normal standard of
proof.
MS. VOIGTLANDER said it is intermediate between "preponderance
of ... evidence" and "beyond a reasonable doubt."
Number 2886
REPRESENTATIVE GRUENBERG asked Ms. Voigtlander whether she is
aware of any other area of tort law, aside from punitive
damages, where such a high standard of proof is required. He
suggested this would be a bold new step in Alaska or anywhere in
the country.
MS. VOIGTLANDER said she could only address statutes she is
familiar with, including the requirement for the higher standard
for punitive damages. She indicated she believes there may be a
few other provisions in civil law that require this higher
standard, including some areas of statutory and common law in
Alaska, but couldn't say what they were.
REPRESENTATIVE GRUENBERG pointed out that this is the same
standard used for terminating a person's parental rights. "It's
a very, very high standard," he added.
Number 2801
ROBERT DOEHL, Assistant Attorney General, Special Litigation
Section, Civil Division (Anchorage), Department of Law, referred
to Sections 3-6 and suggested the concern about the language
relates to the fact that this will be pasted into existing
statutes, under which the organized militia is defined as
consisting both the Alaska National Guard, which has both a
federal and state role, as well as the Alaska state defense
force, which only has a state role. That is why, throughout
Sections 3-6, the language addresses what happens in a state
capacity, he said. In the case of the national guard, there
would be a federal capacity wherein individuals would have
federal remedies; in the case of the Alaska state defense force,
they only would have state remedies.
Number 2717
DEAN BROWN, Deputy Director, Division of Forestry, Department of
Natural Resources (DNR), noted that part of the division handles
wildland firefighting, a major public service and public safety
issue for the state. Mentioning the current Miller's Reach
litigation [which was decided by a jury in favor of the state
shortly after this hearing], she said most people are aware that
the state faces major liability in these areas. She emphasized
the importance she believes the bill has for the state with
regard to delivering these services. Noting that the fire
season was declared two weeks early this year, Ms. Brown
reported that the division already has responded to 64 fires.
Firefighters in Southcentral Alaska responded to numerous fires
from high winds, and then still had to respond in court. She
stressed the desire to focus the division's emergency personnel
towards their job of fighting fires. She echoed comments by Ms.
Voigtlander about workers' compensation availability and urged
support for the bill.
Number 2549
REPRESENTATIVE CISSNA spoke about the state's obligation to its
public servants and suggested lawsuits are filed if someone
believes a wrong has been done. She voiced concern that if
people risk their lives for others, the state should feel
responsible for them and their families, and said workers'
compensation, "in my book, doesn't look really good." She said
she wants some assurances that the state is providing for these
people who work in danger's way, and expressed concern about
removing the tools that exist through the court system that
provide justice. "We as a state shouldn't be ... a worse
employer than the private sector," she remarked. She asked
Ms. Brown whether there is adequate coverage or if some special
program covers someone who dies in the line of duty.
MS. BROWN replied that she cannot address the adequacy because
it isn't her area. She said these firefighters have extensive
training and experience; they meet national standards, and other
states and the federal government use these individuals.
However, in performing their duties, they make decisions based
on the best information they have at that time. This bill would
provide immunity if decisions are made that later are [seen as
erroneous]. She asserted that it gives additional protection to
individuals performing this emergency response. Indicating the
division responds to 500-700 fires a year, she said every one
"could be open to extreme liability under tort immunity." She
added that she doesn't believe this removes individual
protection because workers' compensation remains.
Number 2297
REPRESENTATIVE CISSNA asked about the need for the bill, noting
that fires aren't new to the state. She asked whether there has
been a lot of tort legislation because of Alaska's fires.
MS. BROWN mentioned a Tok fire, but said the Miller's Reach fire
was the first major fire and litigation. She surmised, however,
that Alaska will see what other Western states have seen,
increased litigation associated with wildland fires. She
suggested Alaska is a number of years behind other states. She
agreed there aren't more fires. Specifying that it is her
personal opinion, she suggested [introduction of the bill] is
related to how litigious society has become.
Number 2178
CHAIR LYNN asked whether anyone else wished to testify. He then
closed public testimony.
REPRESENTATIVE GRUENBERG told members this is the first bill he
has intended to vote against moving from committee, and that he
believes it sends the wrong message to people who put their
lives on the line. "These are the people this committee should
be protecting and this state should be protecting," he said.
Representative Gruenberg went on to say he'd looked carefully
and couldn't see a single section of the bill he supports.
Number 2127
REPRESENTATIVE MASEK moved to report CSHB 245, Version 23-
GH1025\D, out of committee with individual recommendations and
the accompanying fiscal notes; she requested unanimous consent.
Number 2092
REPRESENTATIVE GRUENBERG objected.
A roll call vote was taken. Representatives Masek, Fate, and
Lynn voted in favor of moving CSHB 245, Version 23-GH1025\D, out
of committee. Representatives Cissna, Gruenberg, and Weyhrauch
voted against it. Therefore, CSHB 245(MLV) failed to be
reported from committee by a vote of 3-3.
Number 2037
REPRESENTATIVE WEYHRAUCH asked for reconsideration to be taken
up the same day.
CHAIR LYNN responded, "Yes, without objection."
REPRESENTATIVE WEYHRAUCH explained that he'd voted "no" because
of serious concerns about "the bright-line statement we're
making here that they're absolutely immune from liability for
the kind of people that we're asking to serve this country, and
the people who live here." He said he believes limited
liability ought to be available, but isn't sure there should be
complete immunity. He expressed the desire to move the bill on
to the House Judiciary Standing Committee, but said he wants the
bill amended to reflect his concerns.
Number 1982
REPRESENTATIVE FATE said he doesn't like to hold any bill up,
but had questions and would amend this to at least clarify what
"organized militia" is, since the bill deals with the organized
militia in large part; he noted that the bill uses the terms
"military", "civil defense", and "homeland security". He also
suggested the need for clarification and perhaps amendment to
the provisions relating to vaccinations.
Number 1900
REPRESENTATIVE GRUENBERG announced that despite his own
reservations, he'd offer amendments in the House Judiciary
Standing Committee on behalf of members of the current
committee.
Number 1874
REPRESENTATIVE MASEK expressed faith that the House Judiciary
Standing Committee and the House Finance Committee would work
out issues brought up this date.
Number 1815
REPRESENTATIVE MASEK again moved to report CSHB 245, Version 23-
GH1025\D, out of committee with individual recommendations and
the accompanying fiscal notes.
Number 1806
REPRESENTATIVE CISSNA objected. She expressed concern that
speeding legislation along isn't in anyone's best interest, and
said this process is meant to be deliberative and slow. She
cautioned that there is no big rush, and said this committee
needs to do as much as possible to get a good piece of
legislation together that as many members as possible can feel
good about.
Number 1712
CHAIR LYNN said he shares some of these concerns, but that it is
going to the House Judiciary Standing Committee, where one
member of the current committee sits and will offer amendments
on behalf of members.
A second roll call vote was taken. Representatives Fate, Masek,
Weyhrauch, and Lynn voted in favor of moving CSHB 245, Version
23-GH1025\D, out of committee. Representatives Cissna and
Gruenberg voted against it. Therefore, CSHB 245(MLV) was
reported from the House Special Committee on Military and
Veterans' Affairs by a vote of 4-2.
HJR 10-NATIONAL MISSILE DEFENSE SYSTEM
CHAIR LYNN announced that the next order of business would be
HOUSE JOINT RESOLUTION NO. 10, Requesting the United States
Congress to support the speedy deployment of a national missile
defense system.
Number 1595
HEATH HILYARD, Staff to Representative Lesil McGuire, Alaska
State Legislature, presented HJR 10 on behalf of Representative
McGuire, sponsor. Turning attention back to approximately 1989,
he offered that the fall of the Union of Soviet Socialist
Republics (USSR) [officially dissolved in 1991], while
ultimately a good thing, had an incredibly destabilizing effect
on world politics. He said a geopolitical system governed by
two competing superpowers and the nuclear policy of mutually
assured destruction, while tenuous and disquieting, had created
a great deal of stability in nuclear proliferation. Since
collapse of the USSR, however, the world has been confronted by
a new threat of so-called rogue nations that now possess
nuclear, biological, and chemical capabilities; the closest of
these new threats to Alaska, in particular, is North Korea.
MR. HILYARD cited an interview in the Capital City Weekly in
which U.S. Senator Ted Stevens said about North Korea that its
new missile is capable of going a lot farther than [North Korea]
has acknowledged, that it has made warheads that carry chemical
and biological weapons, and that this is cause for worry.
Mr. Hilyard also quoted President Bush as saying [during his
2000 campaign] that America's development of a missile defense
is a search for security, not a search for advantage.
MR. HILYARD pointed out that committee packets include a copy of
H.R. 1453, sponsored by Congressman David Vitter of Louisiana,
which Mr. Hilyard said [HJR 10] essentially mirrors. He read
the body of the congressional bill, which stated:
The Secretary of Defense shall direct the Director of
the Missile Defense Agency of the Department of
Defense to design and deploy as soon as
technologically possible a land-based and sea-based
missile defense system capable of defending the
national territory of the United States against
ballistic missile attack.
MR. HILYARD said this is one of the White House's priorities in
terms of revitalizing the national military.
Number 1415
STACEY FRITZ, No Nukes North, informed members that No Nukes
North is a 503(c)(3) nonprofit organization that seeks to
promote educated opposition to missile defense. She explained
that she'd recently finished her graduate thesis on the subject
of missile defense at the [University of Alaska Fairbanks].
Agreeing with much of what was stated about the end of the Cold
War and the subsequent instability and nuclear proliferation,
she also agreed that North Korea poses a nuclear threat and that
terrorists in rogue nations are acquiring nuclear weapons. She
said, however:
What I see as a main problem with this entire debate
is that no one's been asked the question, "What is the
best way to address those threats?" They simply
assume that building a missile defense system is the
best way to do that, and I would certainly argue that
that is not the case.
Number 1335
MS. FRITZ highlighted the fact that the first "WHEREAS" clause
in HJR 10 relates to the 1972 Anti-Ballistic Missile Treaty
(ABM) and says the USSR no longer exists. She told members:
I think it's curious that it was included in this
resolution because, as many people know, the United
States has already unilaterally abandoned this treaty.
And I think that it's also, even though the treaty no
longer exists, still worth pointing out that [with
regard to] this logic for abandoning this treaty -
stating that it was signed by the country that no
longer exists - certainly President Bush Sr. affirmed
that Russia ... inherited the treaties that the USSR
had signed.
And if we were to apply this kind of logic to all the
treaties that the USSR had signed, Russia would no
longer have to abide by World War II boundary
agreements or the Geneva Protocol of 1925. So while
people might argue that there are reasons for
abandoning the ABM, "that the USSR does not exist" I
don't think is a very good one. And I would argue
that the reasons that we signed the treaty in 1972 are
just as strong today as they were then, and that was
to prevent an unstoppable and very expensive arms
race. ...
We could argue all day about whether or not the ...
missile defense system should be deployed. But I
think that the main thing that should concern
Alaskans, if our state is going to support this
system, is whether or not this system works. And I
think it has been made very clear, through the testing
program, that it does not work. And I would go ... so
far as to say that it cannot work.
And I'm not a physicist. However, there were 15 Nobel
laureates who signed a letter to Congress affirming
that this system would never work. It's a technical
loser because it cannot defend us against very simple
countermeasures. So it will never be technologically
feasible in the real world.
Certainly, we have demonstrated, in a few of the tests
... that were not completely rigged, that we do have
the capability to intercept [an] enemy missile with
hit-to-kill technology, but that doesn't say anything
about this system working in the real world.
CHAIR LYNN asked that Ms. Fritz limit her testimony to another
minute.
Number 1120
MS. FRITZ agreed to try to sum it up, but emphasized the
importance of this issue. She said the system as it is, with
the kinetic hit-to-kill interceptor, is incapable of defending
against (indisc.) and countermeasures that could be within an
enemy missile. In order to be "militarily realistic," she
proposed the need to recognize that there will be serious
consideration of returning to the use of nuclear tips on these
interceptors. She cautioned that if this resulted in having
nuclear-tipped interceptors at Fort Greely, the use of those
would spread radiation.
CHAIR LYNN interjected and thanked Ms. Fritz for her testimony.
Number 1081
RYAN TINSLEY, Member, Fairbanks Coalition for Peace and Justice,
testified on the fiscal aspects of this [missile defense]
system. Noting that since 1983 the U.S. has spent $95 billion
on mission defense deployment and still has no workable system,
he told members that the "Star Wars" system envisioned by
President Bush will cost at least $200 billion more - with more
estimates by the Bush Administration itself already as high as
$258 billion.
MR. TINSLEY mentioned the current federal fiscal [deficit] and
reminded members that Congress has cut veteran-disability
funding, while more than $400 billion a year is spent on
[defense]. He mentioned social services including health care,
education, and social security, as well as funding for what he
considers more reasonable defense systems. He said [U.S.
Senator] Ted Stevens has asked police and fire departments to
work overtime without pay. Mr. Tinsley concluded by asking,
"When we are spending so much on defense and we have no money
for social services, ... what cost does this national missile
defense system come with? What are we going to be defending
when we have no education, no health care, and no social
services?"
Number 0947
STEVE CLEARY, Organizer, Citizens Opposed to Defense
Experimentation (CODE); Executive Director, Alaska Public
Interest Research Group (AkPIRG), informed the committee that
CODE, a 10-member coalition, has been bringing up the dangers
the missile defense system will pose to Alaska. He noted
Alaska's long history of use as a military test site - as seen
at Amchitka in the late 1960s and 1970s - and as a toxic dump,
since more than 600 military toxic sites are yet to be cleaned
up. He told the committee:
We're worried that bringing an unproven technology to
this state will expose Alaska and Alaskans to
potential threats. We saw ... a botched launch from
Kodiak have to be exploded a minute after takeoff.
Well, if that happens out near Fort Greely, we know
the pipeline's only a few miles away from there, and
it might put one of our major infrastructure systems
... in jeopardy.
We're also concerned that it's going to give the U.S.
a false sense of security, since, as you've heard, ...
the missile defense system has not been proven
effective. And also, as Mr. Tinsley was saying, there
are other threats and other needs to be addressed.
The CIA [Central Intelligence Agency] even suggests
that this is ... the least likely threat, an
intercontinental ballistic missile. So I believe our
money would be better spent on helping veterans who
have already - and are already - suffering, and with
other unmet homeland security needs.
I was disappointed to see the legislature pass a
resolution in support of a railroad [to Fort Greely],
again, ... that we might have to fund to Fort Greely
when we don't know that this system is proven and we
don't know where that money is coming from.
Number 0801
CHAIR LYNN asked whether anyone else wished to testify; he then
closed public testimony.
REPRESENTATIVE FATE offered that from the information he'd
received, there are no nuclear-tipped weapons. He asked what
level of expertise Ms. Fritz has in talking about highly
technical areas.
MS. FRITZ answered that she isn't a physicist, but has spent the
past four years researching this subject for her master's
degree, which she has received. With regard to nuclear tips,
she reported that she works closely with Michael Roston, an
analyst with the Russian American Nuclear Security Advisory
Council in Washington, D.C.; he has informed her that although
within the missile defense budget it is no longer legal for
study of nuclear-tipped interceptors to go on, study does
continue in other (indisc.). She offered to obtain more
information for the committee.
Number 0649
REPRESENTATIVE FATE asked Mr. Tinsley what he would consider a
reasonable national defense system.
MR. TINSLEY acknowledged the complexity of that question, and
said he believes a more realistic threat would be something that
comes into the ports; he said the money would be better spent in
beefing up port security, for one thing. He also expressed
concern about removing money from potential foreign aid, which
he indicated perhaps could change the views of terrorists and
others in foreign countries; he suggested that perhaps
disseminating some of this money to have-nots in other countries
might keep the U.S. from needing to defend and fortify itself
against them.
REPRESENTATIVE FATE asked how much foreign aid the U.S. should
have given Osama bin Laden to prevent [the terrorist attacks of
September 11, 2001].
MR. TINSLEY answered:
I think that, first of all, maybe the CIA should have
considered not training Osama bin Laden and not
funding the Taliban, as well as not funding ... and
putting Saddam Hussein into power [in Iraq] and not
selling him the chemical weapons and not okaying the
use of chemical weapons in [the] Iran-Iraq war with
the [United Nations (UN)] resolution. ... I think that
we need to seriously consider how we conduct ourselves
in ... foreign affairs.
Number 0425
CHAIR LYNN asked whether there was any committee discussion;
none was offered.
Number 0414
REPRESENTATIVE MASEK moved to report HJR 10 out of committee
with individual recommendations and the accompanying fiscal
note; she requested unanimous consent. There being no
objection, HJR 10 was reported from the House Special Committee
on Military and Veterans' Affairs.
HB 228-STATE EMPLOYEES CALLED TO MILITARY DUTY
[Contains discussion relating to SB 26, the companion bill in
the Senate, and to HJR 18]
CHAIR LYNN announced that the final order of business would be
HOUSE BILL NO. 228, "An Act relating to state employees who are
called to active duty as reserve or auxiliary members of the
armed forces of the United States; and providing for an
effective date."
Number 0334
REPRESENTATIVE BETH KERTTULA, Alaska State Legislature, sponsor
of HB 228, thanked Senator Elton for the original legislation on
the Senate side [SB 26, also sponsored by Senator Taylor]. She
deferred to Tracy Wendt to present the legislation.
Number 0284
TRACY WENDT, Intern for Representative Beth Kerttula, Alaska
State Legislature, informed members that HB 228 gives the
governor the authority to instate pay and benefits for [state
employees who are] members of the armed forces who are called to
active duty or who are on call. The intent is to provide
benefits and any difference between [active-duty pay] and the
full salary that the employee would have received from the
state. Thus the bill ensures that families aren't left having
to deal with financial obligations for their loved ones who are
away fighting in a war. She said one concern with the bill was
the desire not to intentionally eliminate any group. Therefore,
the desire is to have it apply to anyone that the governor
chooses [to have it apply to]; however, this is optional and
isn't mandated.
Number 0151
REPRESENTATIVE KERTTULA brought attention to Amendment A.1,
labeled 23-LS0894\A.1, Craver, 4/14/03, which read:
Page 1, line 1, following "duty":
Insert "or ordered to full-time service"
Page 1, lines 9 - 11:
Delete "including the organized militia of
Alaska, consisting of the Alaska National Guard, the
Alaska Naval Militia, and the Alaska State Defense
Force,"
Page 1, line 11, following "duty":
Insert "or ordered to full-time service"
MS. WENDT explained that there had been concern about omitting
some groups such as the U.S. Coast Guard, but the intent isn't
to do that. Therefore, Amendment A.1 restates the language
broadly enough that the bill applies to any armed forces
[branch] or auxiliary of the armed forces.
Number 0076
REPRESENTATIVE GRUENBERG [moved to adopt] Amendment A.1.
CHAIR LYNN indicated Amendment A.1 was adopted without
objection.
MS. WENDT, in response to a question from Chair Lynn, said
people would get their state pay or less. She said this is
really more for benefits.
REPRESENTATIVE MASEK offered her belief that this will have a
fiscal impact because of the way it is written.
TAPE 03-7, SIDE A
Number 0001
REPRESENTATIVE KERTTULA said that is right if the governor
chooses to implement this. That's why there is an indeterminate
fiscal note.
REPRESENTATIVE MASEK said that is why she has a problem with the
bill. Saying she appreciates that state employees volunteer,
she reiterated concern about a budgetary impact.
CHAIR LYNN agreed that it seems there will be a fiscal impact.
REPRESENTATIVE KERTTULA explained that people who volunteer,
when they go to active duty, may suddenly lose their benefits,
as will their families. They definitely, in many cases, lose
pay as well. She emphasized that these people are volunteering
"for us." She said, "We felt that we should allow the governor
the authority to go ahead and do this if he felt like it. The
reason it's an indeterminate amount is, as with many other bills
we're seeing this session, they just don't know." She mentioned
an estimate on similar legislation last year of $80,000 that it
would have cost the state.
CHAIR LYNN noted that everyone wouldn't be called to duty.
Number 0220
REPRESENTATIVE FATE asked what would happen with regard to
benefits if someone were killed while on military duty. He also
asked what would happen if the person decided to remain on
military duty with the regular state pay and other benefits for
30 years. He asked whether there is any remedy for this.
REPRESENTATIVE KERTTULA said she would double check. She then
remarked that if a person weren't covered under state benefits,
those easily could be lost.
CHAIR LYNN said this is a valid point, but suggested hearing
testimony and then holding the bill over. He called upon
Lieutenant Commander Honse, thanking him for service to his
country.
Number 0439
CHRIS HONSE, Lieutenant Commander, Director, U.S. Coast Guard
Auxiliary for District 17, told members the U.S. Coast Guard is
simultaneously an armed service of the United States under 10
U.S.C. 101 and a law enforcement agency under 14 U.S.C. 89. As
the lead federal agency for maritime homeland security, it is
responsible for upholding America's maritime security against
terroristic threats, with the imperative of preserving
fundamental liberties and economic well-being. It has active-
duty, civilian, reserve, and auxiliary personnel. As its
missions and responsibilities continue to expand under the
Department of Homeland Security, the dependence on every
component of the U.S. Coast Guard's forces grows
correspondingly.
LIEUTENANT COMMANDER HONSE noted that the Alaska Coast Guard
reserve component includes 42 (indisc.) reserves and 28
"inactive ready reserves." Of the 80 U.S. Coast Guard reserves
serving currently under "Title 10" orders throughout Alaska, 38
reside permanently in Alaska; of those, 6 are state employees.
He reported that current reserve members serve as sea marshals
and provide protection. He noted that the statutory purpose of
the U.S. Coast Guard Auxiliary was expanded under the Coast
Guard authorization Act of 1996.
LIEUTENANT COMMANDER HONSE said currently there are 403 U.S.
Coast Guard Auxiliary members in Alaska. Although they cannot
be called to active duty, commonly they are placed on "official
orders" to provide support in executing search-and-rescue
missions, responding to environmental pollution, "backfilling"
active-duty positions, and conducting low-risk harbor patrols.
As volunteers, they receive no monetary compensation.
Continuation of pay and benefits would assist these members, he
said, since it would help alleviate financial concerns, add
stability, and reduce uncertainty while these people are
deployed away from their families.
Number 0703
REPRESENTATIVE WEYHRAUCH asked how many U.S. Coast Guard members
would be affected by this bill.
LIEUTENANT COMMANDER HONSE said 6 for the reserves, and
estimated 20 to 30 on the auxiliary side.
REPRESENTATIVE WEYHRAUCH noted that Section 3 says this is
retroactive to September 11, 2001, but that Section 4 also says
this Act takes effect immediately. He asked about the former
and suggested that a retroactive date to September 11, 2001,
would take care of some of the indeterminate nature of the
fiscal impact, since the impact since that date can be
determined.
REPRESENTATIVE KERTTULA said it's a good point and could provide
at least a range. Referring to Representative Fate's questions
and surmising that the issue is whether someone could abuse the
system and double-dip, she asked whether there have been such
instances.
LIEUTENANT COMMANDER HONSE said he wasn't aware of any.
CHAIR LYNN remarked that most people who retire from the
military after 20 years cannot live on military retirement,
whatever their rank, with a few exceptions "who wear stars."
Number 0898
JULIE BENSON testified as the wife of a man who is a state
trooper and a member of the Air National Guard. She told
members:
This bill is important to our family specifically. My
husband has been a trooper for four years, and we're
currently stationed in Ketchikan. We have one
daughter, with another child due in July. After six
years of active military service, Adam joined the
Alaska Air National Guard as a KC-135 crew chief in
1997.
Last year, after the tragic events of September 11th,
Adam's unit, the 168th Air Refueling Wing based at
Eielson Air Force Base, was activated. For this
family, activation means that Adam is taken away from
us for as long as the United States government needs
his services. Last year, Adam was gone for six
months. There is no way for us to know when the Guard
will call again or for how long Adam will be gone the
next time.
I would like to help you understand that HB 228 is
essential legislation for state employees who make the
difficult choice to serve not only their state, but
also their country. When my husband was activated
last summer, our benefits through his employment as a
trooper were immediately discontinued. This resulted
in lost retirement contributions as well as the loss
of certain pay raises he would have received had he
remained employed by the state. Adam and I feel that
any loss of pay and benefits due to his activation
just is not right.
The individuals who choose to perform service to their
country as well as their state are exemplary public
servants and should not be penalized by the state,
especially at a time of significant national crisis.
These people are federal and state servants because,
as you've noted, they choose to be - not because they
have to be.
Just last Friday, House Joint Resolution 18 was
transmitted to the Office of the Governor, and as I
understand it, HJR 18 calls for full support of the
men and women who are currently protecting not only
our freedom, but the freedom of citizens abroad. This
resolution is a wonderful show of support. However,
these words don't mean very much when the same
administration denied my husband his annual pay
increase based on the grounds that he had, quote,
"failed to demonstrate a greater value to the state",
end quote. He was unable to demonstrate a greater
value to the state because he had been deployed to the
Middle East in support of Operation Enduring Freedom.
Number 1088
MS. BENSON continued:
My husband is a unique individual who feels compelled
to serve in every aspect of his professional life.
When he left the Army, there was never a question of
whether or not he would continue to serve his country.
He immediately joined an active Air Guard unit that is
frequently deploying its members worldwide. Though we
understood the potential sacrifice of this decision,
it was never up for debate. Civil service is what
Adam is all about. And despite the family compromises
that we make, I'm so thankful for the men and women
like my husband, and I'm very proud to be his wife.
The passage of this bill is the right thing to do.
Under current state policy, the men and women who are
called to service are punished by their employer, the
State of Alaska. I doubt that the passage of this
bill will change any of their decisions to continue
their voluntary military service. It's just what they
do because it's the right thing for them to do.
The right thing for the rest of us to do is to use
every avenue available to support them as they and
their families make incredible sacrifices to protect
and to defend. Please support the men and women who
choose to serve our great nation and our great state,
by supporting House Bill 228.
CHAIR LYNN noted that he'd sponsored HJR 18. He asked Ms.
Benson to [thank her husband for his service].
Number 1248
MS. BENSON, in response to questions from Representative Fate,
said her husband only receives payment for being in the Guard or
the reserves when he is there working for them. There is no
supplement to his state trooper pay just because he chooses to
be in the Guard.
REPRESENTATIVE FATE asked whether Mr. Benson was on leave from
the troopers while serving with the Guard.
MS. BENSON said he was on military leave.
REPRESENTATIVE FATE surmised that Mr. Benson had one salary,
either from the troopers or the Guard.
MS. BENSON affirmed that.
Number 1330
DEBRA GERRISH began by addressing a question posed by
Representative Fate earlier. She said the federal law called
USERRA [Uniformed Services Employment and Reemployment Rights
Act of 1994] provides for holding an employee's job for only
five years. After that five years is up, the person's job is
gone. Noting that she is the wife of an officer in the Army
National Guard who has served for 22 years, Ms. Gerrish agreed
with Ms. Benson's testimony that these people serve because they
feel it is the right thing to do.
MS. GERRISH told members she is very interested in this bill and
has done a lot of research on it. She noted that Tennessee has
done something similar through Executive Order 4. Also noting
that she'd testified on a similar bill last session that didn't
pass, she told members she'd looked at what she could remove
from the bill, if necessary, in order that it could pass. She
reported that when her husband is deployed, the family loses
$15,000 to live on, but can survive [on the salary]. However,
she must have the health benefits. Her family has two
asthmatics and cannot afford to lose those benefits. Therefore
she asked that the health-benefits aspect be retained above all.
MS. GERRISH provided an example. Her husband is deployed on the
26th of a month, called to active duty. The [state] benefits
extend to the end of that month. Then, according to Alaska law,
he can ask for another month of health benefits. After that
month is over, however, the family has nothing. She pointed out
that when someone is called up by the Army, the person must be
called up for a particular number of days before dependents are
covered. She said there were people called up [following the
terrorist attacks of September 11, 2001] whose kids had no
insurance for months. She stressed the need to look at how the
different laws work together.
MS. GERRISH reported that she'd called Tennessee, where many
National Guard members who also are state workers are covered by
[Tennessee's executive order that is similar to this
legislation]. She concluded by saying she can scrape by on
military pay, although it is difficult for some others.
However, loss of health benefits is hard on everybody. She
pointed out that people making $15,000 or less a year cannot
afford COBRA [Comprehensive Omnibus Budget Reform Act] payments
for insurance.
Number 1623
BUTCH STEIN began by referring to USERRA, suggesting that
everyone read Title 38, Chapter 43 [of the United States Code
(U.S.C.)]. He suggested that would address some of
Representative Fate's questions, for instance. He agreed with
Ms. Gerrish that the maximum [for an employer to have to hold an
employee's job] is five years. He then told members:
The reason I want to talk to the group is not on the
monetary side. I'm just talking about the parts that
USERRA addresses, which is, one, that you cannot deny
a person employment because of their activity in the
uniformed services, and you cannot discriminate ... or
take any actions against them ... because they're
members of the uniformed services.
You cannot charge them vacation time. Now, the State
of Alaska authorizes, I believe, it's 16 days of
military leave per year. But if they are activated,
some employers would like to say they have to use
their personal vacation or leave time while they are
gone. That is not correct; that's against the federal
law.
All benefits available at the time of call up to duty
are immediately available upon return to work.
There's no waiting period involved. You're entitled
to, day one, when you get back to work, ... all your
benefits in return.
Number 1710
MR. STEIN suggested there may be a violation involved in the
situation described by Ms. Benson with respect to her husband,
suggesting his anniversary date may have been changed, which
directly affects benefits, retirement, and so forth. He said
this flies in the face of the federal law, and he again
encouraged looking at the federal law. He reiterated that he
was addressing not the monetary aspects, but the protections
that people should have while serving in the military and upon
their return.
MR. STEIN said 50 percent of the U.S. military are Guard or
reserve members, and shouldn't be penalized for participating
and protecting the rights of others. Referring to earlier
discussion, he agreed this service is voluntary, but pointed out
that a person can be called to active duty for as long as five
years; although he recalled that it was only two [years] for any
one campaign, he noted that campaigns can change [rapidly], such
as the change from Afghanistan to Iraq. He said these
volunteers love their state and country, and "represent us 100
percent." He added, "To think of them in any other light would
be a real miscarriage of justice as far as how we think about
these people. These people are true patriots."
MR. STEIN offered that HJR 18 seems to really support the
troops, and suggested that is the direction to continue. He
mentioned collective bargaining and labor agreements, and said
all of them should be brought in line with the federal law. He
again emphasized his desire that people in the Guard and
reserves not be discriminated against, either when going into
active duty or when returning from that service.
Number 1864
MR. STEIN closed by referring to an article he'd read recently
that said if a military person expires while on duty, the spouse
receives $90 a month until remarriage, the children get $250
[apiece] a month until age 18, and there is a lump-payment
settlement of about $8,000. He suggested that isn't much money.
He pointed out that the people who suffered on September 11,
2001, averaged about $1.2 million as a settlement. He said
there is something askew here, and questioned the ability to put
a monetary value on a patriot's service.
Number 1913
CHAIR LYNN thanked participants and asked whether anyone else
wished to testify; he then closed public testimony. Chair Lynn
announced that HB 288 would be held over.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Military and Veterans' Affairs meeting was
adjourned at 5:14 p.m.
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