Legislature(2021 - 2022)GRUENBERG 120
03/27/2021 01:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB5 | |
| HB55 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 5 | TELECONFERENCED | |
| += | HB 55 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 27, 2021
1:07 p.m.
MEMBERS PRESENT
Representative Jonathan Kreiss-Tomkins, Chair
Representative Matt Claman, Vice Chair (via teleconference)
Representative Geran Tarr
Representative Andi Story
MEMBERS ABSENT
Representative Sarah Vance
Representative James Kaufman
Representative David Eastman
OTHER LEGISLATORS PRESENT
Representative Sara Hannan (via teleconference)
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5
"An Act relating to sexual abuse of a minor; relating to sexual
assault; relating to the code of military justice; relating to
consent; relating to the testing of sexual assault examination
kits; and providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 55
"An Act relating to participation of certain peace officers and
firefighters in the defined benefit and defined contribution
plans of the Public Employees' Retirement System of Alaska;
relating to eligibility of peace officers and firefighters for
medical, disability, and death benefits; relating to liability
of the Public Employees' Retirement System of Alaska; and
providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 5
SHORT TITLE: SEXUAL ASSAULT; DEF. OF "CONSENT"
SPONSOR(s): REPRESENTATIVE(s) TARR
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD
03/26/21 (H) SPONSOR SUBSTITUTE INTRODUCED
03/26/21 (H) READ THE FIRST TIME - REFERRALS
03/26/21 (H) STA, JUD
03/27/21 (H) STA AT 1:00 PM GRUENBERG 120
BILL: HB 55
SHORT TITLE: PEACE OFFICER/FIREFIGHTER RETIRE BENEFITS
SPONSOR(s): REPRESENTATIVE(s) JOSEPHSON
02/18/21 (H) PREFILE RELEASED 1/15/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, FIN
03/13/21 (H) STA AT 1:00 PM GRUENBERG 120
03/13/21 (H) Heard & Held
03/13/21 (H) MINUTE(STA)
03/27/21 (H) STA AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
REPRESENTATIVE GERAN TARR
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor, presented HB 5.
LISA ELLANNA
Nome, Alaska
POSITION STATEMENT: Provided invited testimony in support of HB
5.
DARLENE TRIGG
Nome, Alaska
POSITION STATEMENT: Provided invited testimony in support of HB
5.
KEELY OLSON, Executive Director
Standing Together Against Rape Alaska
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony pertaining to HB
5.
TAYLOR WINSTON, Executive Director
Alaska Office of Victims' Rights
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony in support of HB
5.
BRIAN HOSKEN, Student Services Director
Alaska School Activities Association
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony pertaining to HB
5.
REPRESENTATIVE ANDY JOSEPHSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor, provided a review of HB
55.
PAUL MIRANDA, President
Alaska Professional Fire Fighters Association
Anchorage, Alaska
POSITION STATEMENT: During the hearing on HB 55, provided a
PowerPoint presentation, titled "Costs of Maintaining the Status
Quo."
TOM WESCOTT
Alaska Professional Fire Fighters Association
Anchorage, Alaska
POSITION STATEMENT: Answered questions pertaining to HB 55.
ELISE SORUM-BIRK, Staff
Representative Andy Josephson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions pertaining to HB 55.
ACTION NARRATIVE
1:07:11 PM
CHAIR JONATHAN KREISS-TOMKINS called the House State Affairs
Standing Committee meeting to order at 1:07 p.m.
Representatives Story, Tarr, Claman (via teleconference), and
Kreiss-Tomkins were present at the call to order. Also present
was Representative Hannan (via teleconference).
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
1:09:20 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act
relating to sexual abuse of a minor; relating to sexual assault;
relating to the code of military justice; relating to consent;
relating to the testing of sexual assault examination kits; and
providing for an effective date."
1:09:34 PM
REPRESENTATIVE GERAN TARR, Alaska State Legislature, prime
sponsor, presented SSHB 5 with a PowerPoint presentation, titled
"House Bill 5: Defining Sexual Consent" [included in the
committee packet]. She began on slide 2, titled "How was HB 5
drafted?" She explained that the issue was brought to her
attention by Standing Together Against Rape (STAR), an
organization that knew firsthand how the law has failed to
achieve justice for Alaskans who had been raped or sexually
assaulted. She noted that the law in question has not been
updated in forty years. The legislation before the committee
today is the culmination of a two-year process involving
statewide meetings with input from across Alaska, expert
interviews, and feedback from the Department of Law (DOL), which
is reflected in the sponsor substitute (SS) changes. She
discussed her presentation at the statewide meeting for the
Alaska Network on Domestic Violence and Sexual Assault (ANDVSA),
highlighting the significance of receiving their feedback. She
continued to slide 3 and emphasized the importance of doing
"more listening than talking." She said she wanted to
understand what's happening in Alaskan communities; how people
are feeling safe or unsafe; and how this law impacts that
safety.
1:13:07 PM
REPRESENTATIVE TARR turned to slides 4 and 5, which questioned
"Has consent ever been [an] issue for you?" She stated that
every individual at all the forums she hosted or participated in
were asked that question and all, without exception, answered
yes. She moved to slide 6 and addressed consent, noting that it
is not defined in Alaska statute. Instead, AS 11.41.470(8)
defines "Without consent" as follows:
(8) "without consent" means that a person
(A) with or without resisting, is coerced by the use
of force against a person or property, or by the
express or implied threat of death, imminent physical
injury, or kidnapping to be inflicted on anyone; or
(B) is incapacitated as a result of an act of the
defendant.
REPRESENTATIVE TARR relayed that this explanation is problematic
for several reasons: First, it is not an affirmative
definition; second, it suggests a use of force; and third, it
places the burden on the victim. She continued to slides 7 and
8 and reviewed Minnesota and Montana's statutory definitions of
consent, both of which make reference to the phrases: words or
overt actions, freely given arrangement/agreement, and
current/prior social or sexual relationship. Slide 9
highlighted themes in modernized statutes, including an
affirmative definition that contains the following words:
freely given, agreement, reversible, and words/actions. She
turned to slide 10 and presented the new definition proposed in
SSHB 5, which read:
"Consent" means a freely given, reversible agreement
specific to the conduct at issue; in this paragraph,
"freely given" means agreement to cooperate in the act
was positively expressed by words or action.
REPRESENTATIVE TARR noted that the definition of "freely given"
is one difference in the sponsor substitute from the original
version of the bill at the recommendation of DOL.
1:17:17 PM
REPRESENTATIVE TARR directed attention to slides 11 and 12 and
provided a sectional analysis of the bill [included in the
committee packet], which read as follows [original punctuation
provided]:
Sections 1 and 2: Rape by Fraud
Sections 3 and 4: Predatory behavior by much older
adults engaging in sexual relationships with teenagers
at least ten years younger
Section 5: Addressing circumstances in which consent
can be given
Section 6: New definition of consent
Sections 7 and 8: Updates the definition of consent
Section 9 refers to the updated Military Code of
Justice
Section 10: Requires rape kits be tested within six
months
Section 11: Repeals the old definitions
Section 12: Law applies to crimes committed after the
effective date
Section 13: Effective date for rape kit testing is
July 1, 2023
REPRESENTATIVE TARR explained that Sections 1 and 2 add a new
crime - "rape by fraud" - into statute. Rape by fraud suggests
that a person commits sexual assault by pretending to be someone
else. Sections 3 and 4 amend the sexual abuse of a minor
statute. She noted that currently, Alaska law does not
differentiate between a 16-year-old and someone who is 22 or 30
years of age. Section 5 addresses the circumstances in which
consent can be given. She pointed out that the sponsor
substitute includes changes from the previous version, such that
"rape by fraud" language is removed and "professional purpose"
is defined on page 5, lines 8-15, in Section 5, paragraph (2),
for clarity at the recommendation of DOL. She noted that
Section 5, paragraph (3), addresses freezing - a common trauma
response. Sections 7, 8, and 9 are conforming language, as it
relates to the consent definition. She read the summary of
Sections 10-13 and noted that Section 13 accommodates more time
for the effective date for rape kit testing at the
recommendation of the crime lab.
1:24:00 PM
REPRESENTATIVE TARR continued to slide 13 and outlined the
desired outcomes: First, to remove dangerous people from
Alaska's communities to prevent them from harming others; and
second, to educate Alaskans about consent to prevent harm from
happening. She turned to slide 14 and conveyed that SSHB 5 is
the solution. She detailed a February 10, 2020, KNOM article
that explored "[changing] the law to make prosecution for rape
more possible." The article referenced the law under
consideration in today's meeting and read:
Some said an outdated statute dealing with consent
ensures most sexual assault cases won't result in
convictions. Advocates and survivors say it's time
for some of those laws to change.
1:25:33 PM
REPRESENTATIVE TARR moved to slide 16 and concluded by posing
the following questions:
What is the appropriate criminal justice system
response based on the human suffering caused to the
survivor?
How much of a danger does this person pose to the
community and how long should they be removed from the
community so they can no longer cause harm?
How much do we want to invest to improve public safety
and reduce sexual assault in Alaska?
1:26:14 PM
CHAIR KREISS-TOMKINS announced that the committee would hear
invited testimony.
1:26:38 PM
LISA ELLANNA stated that she is a survivor of sexual assault and
shared her experience as an advocate for survivors of sexual
assault. She recalled that when survivors gathered to provide
support for one another, it became clear that none of their
cases was investigated by the local police department. The
individuals from the group proceeded to insert themselves in
positions on commissions and boards to spark the conversation
around improving the police department's investigation and
training efforts. She explained that over the course of several
years, they encountered heavy resistance from the police
department. The group decided to take a different approach and
bring the issue to a public forum before the city council, which
prompted a cascade of events: 460 cases of sexual assault were
revealed, which had been reported to the police department over
the course of decades and went uninvestigated; the chief of
police left the force; and the city manager resigned. She added
that they also began to take a community approach to the issue
and, in the process, realized that Alaska's consent laws are
inadequate. She pointed out that over 90 percent of reported
cases did not lead to a conviction. She acknowledged that the
issue is a difficult one. When an individual tells someone that
he/she was a victim of sexual assault, it is often reported to
law enforcement, which - if the system is responsive - inserts
the victim into a legal process that is retraumatizing. She
explained that there are fears associated with reporting [sexual
assault] and a lot of weight is placed on the victim's decision,
so rates of reporting are most likely low. In closing, she
stated that SSHB 5 needs to pass. She said it provides context
for police to understand consent and investigate, as well as a
mechanism for district attorneys to provide tools to hold
perpetrators accountable.
1:31:10 PM
DARLENE TRIGG informed the committee that she is a community
advocate [for sexual assault] in Nome. She contextualized the
importance of this legislation by explaining what it's like for
women to live in a state that's not safe for them. She conveyed
that victims had lost faith in the police force and criminal
justice system, adding that many victims were assaulted more
than once, which leads to victims questioning, "Why tell police
when they're not going to do anything anyway?" As a result, in
Nome in particular, the current state of affairs is so poor that
victims are often hospitalized for suicide attempts and other
self-destructive coping mechanisms. She pointed out that living
with the current laws creates a culture of safety for
perpetrators. She shared her belief that women do not know what
it is to be safe because they need to put up walls and always be
aware, which holds them back from being productive community
members.
1:33:59 PM
KEELY OLSON, Executive Director, Standing Together Against Rape
(STAR) Alaska, stated that in 2018, STAR's board of directors
formed a policy committee to help educate and inform lawmakers
about existing challenges in the sexual assault statutes
informed by the lived experiences of survivors. One such policy
priority included updating the state's definition of consent.
Given that Alaska has the highest rates of rape in the nation,
she said, it seems logical to provide law enforcement and
prosecutors with more tools to effectively prosecute rape. She
explained that the state's current definition of "without
consent" places the burden on the victim to prove that force or
threats were used; further, it requires the state to try and
prove the victim was incapacitated to the point of being unable
to consent. She pointed out that in practice, this is a very
high burden that leads jurors to expect the victim to have
sustained significant and visible injury, which is often not the
case. A growing understanding of trauma response indicates that
a victim often freezes rather than fighting or fleeing. She
noted that the statute does not account for a victim crying
throughout the assault and not fighting back. She relayed
STAR's additional policy priorities, including urging the state
to do more to protect minors - ages 16 and 17 - from targeted
victimization. She reported that under questioning, offenders
often tell the police that "16-year-olds are fair game,"
suggesting that they are legal, and maintaining that [the
victim] consented, which places the burden of proof on law
enforcement. These cases often involve the offender proffering
teens with alcohol and drugs to render them incapable of escape
and less likely to report for fear of not being believed or, in
some cases, being charged with underaged drinking when they do
report. She said STAR receives numerous calls on its statewide
sexual assault crisis line from parents seeking support and ways
to help their teens who were manipulated into a relationship
with a much older adult. In such cases, the parents are often
powerless to order the adult to stay away from their child. She
pointed out that impressionable youth are often led to believe
by a predatory adult that they are mature and special, which
drives a wedge between them and their family support. In
Alaska, the state only protects teens from adult predatory
behavior if the adult holds a position of authority over the
child. She shared her belief that the state should be doing
more to protect its youth particularly during formative years
rather than treating them as grown adults.
MS. OLSON detailed several cases that involved the use of
trickery or fraud to gain sexual gratification by the offender.
She remarked:
In one case, a woman awoke to her husband spooning her
from behind in bed. As was standard in their intimate
relationship, she reached into the bedside drawer for
a condom, which she provided to her husband over her
shoulder without glancing back. They engaged in
sexual relations. At some point during the encounter,
to her horror, she realized the man in her bed was not
her husband at all. In fact, it turns out he was a
homeless man who snuck into her house through an
unlocked door after her husband left for work early
and climbed into her bed. It's not known and was
never substantiated that he had been stalking and
watching her for some time. As soon as she realized
this man was a stranger she jumped up and called the
police. The suspect fled but was later apprehended.
Since he did not use force, he could not be held
accountable for rape. I believe he was ultimately
prosecuted for illegal entry to her home.
Another case involved a young woman living with her
fiancé and his family. Their room was in a dark
basement. She was in bed one night when her fiancé
entered. She called out his name and he answered
affirmatively. They began engaging in sexual
relations. At some point during the activity, she
came to realize this was not, in fact, her partner,
but rather his brother pretending to be him. She
screamed, he fled, and she reported to law enforcement
with the support of her fiancé. Although the state
attempted prosecution, the offender was acquitted by a
jury because the state could not show force was used
in this case.
MS. OLSON noted that these are just several cases in which fraud
was used to induce consent. She added that the frequency of
such cases is unknown because most do not result in a sex
offense charge, so they remain invisible.
1:40:11 PM
REPRESENTATIVE STORY thanked Ms. Ellanna and Ms. Trigg for
sharing their experiences and expressed her appreciation for
women's advocacy.
1:40:53 PM
TAYLOR WINSTON, Executive Director, Alaska Office of Victims'
Rights (OVR), Alaska State Legislature, informed the committee
that she is testifying in support of HB 5 as both the executive
director of OVR and a former state prosecutor of sexual
offences. She highlighted her thirteen years of experience as a
state prosecutor, six of which were spent supervising the sexual
offense unit in the Anchorage District Attorney's Office. She
noted that as the supervisor, she screened virtually every
sexual offense case that came into the Anchorage office during
those six years. She shared her belief that amending the
statutes, particularly SA1 [Sexual Assault in the First Degree],
SA2 [Sexual Assault in the Second Degree], SAM1 [Sexual Abuse of
a Minor in the First Degree], SAM2 [Sexual Abuse of a Minor in
the Second Degree], and the definition of "consent" is important
and long overdue. She recalled seeing "quite a few" cases in
her role as a prosecutor in which these amendments were needed.
She said the comments from previous testifiers are encapsulated
in her experience, adding that this legislation would help close
a loophole with regard to SA1 and SA2 in Sections 1 and 2 of the
bill. She agreed with Ms. Olson that it is difficult to
quantify the number of victims that would receive justice from
this change, in part, because if sexual assault is reported, it
might not go further than the level of investigation since the
statute does not allow it. She explained that closing the
loophole would allow those who had been victimized to have
justice where they were previously denied; additionally, it
would potentially keep others from becoming victims.
MS. WINSTON recounted her experience prosecuting a case that
involved fraud. She said upon being handed the case, she
immediately questioned her supervisor about the statutes, saying
"[the victim] appears to consent to the sexual activity, but not
consenting to the person who was doing the sexual activity with
her." Her supervisor reassured her, she prepared the case and
took it to trial. She remembered that the victim, who was
asleep at the time of the assault and thought the defendant was
her fiancé, shared compelling testimony; however, the jury
ultimately acquitted the defendant, providing no justice to the
victim for being violated. She pointed out that the case was
tried on the victim's unawareness of the sexual assault. The
issue of consent, or lack thereof, was also argued. Ultimately,
she said it was a sad case for the victim and the system as a
whole, adding that the loophole should be in the law, which this
bill hopes to cure.
MS. WINSTON addressed SAM1 and SAM2. She related that the law
covers 16- and 17-year-olds if the perpetrator is in a position
of authority but does nothing for them if the perpetrator is not
in such a position. She stated, "Yes, we can talk about the age
of consent, but the people who engage in sex with children who
are more than 10 years older than them are predators." She
added that these are not people who are looking to form a
healthy relationship from normal interactions, rather, they are
people who seek out children and groom them at a vulnerable age.
Furthermore, she relayed that when the abuse from this older
person comes to light, it has devastating emotional effects,
such as suicide, cutting, drug and alcohol abuse, and other
destructive behavior. It can also create a wedge between the
child and his/her family. She recalled a number of cases that
relied on the discretion of the judge to deem whether the
situation was aggravated and might warrant a higher sentence;
however, there was often no reflection of aggravation through
the statutory aggravators, so there was no justice for the
victim. She stressed the "intense ripple effect" that occurs
throughout the victim's life, which is forever changed. She
said it has an immense cost to society on health and human
services, work productivity, and criminal behavior. She went on
to point out that the current [sexual assault] laws predate the
invention of the internet, which has allowed offenders an easier
way to pray on vulnerable children. In closing, she reiterated
that the consent sections are important because they would
provide clarity for jurors and lessen the burden on victims.
REPRESENTATIVE STORY expressed appreciation for the proposed
solutions and questioned how affirmative consent laws had
impacted other states that adopted them in stopping sexual
assault and predatory behavior.
1:52:12 PM
REPRESENTATIVE TARR replied that there has been a national
review of consent laws; however, most of the work on this issue
is recent. She indicated that it's too early to understand the
impact from the adoption of new laws in other states.
1:53:31 PM
REPRESENTATIVE CLAMAN conveyed his support for avoiding a
victim-focused trial. He asked whether the proposed definition
of consent would cause more focus on the victim and his/her
history than the current law.
MS. WINSTON clarified that the burden would be shifted from the
victim to the offender. Regarding the shift of focus to the
victim's past behavior in a trial setting, she cited the rape
shield law, which puts the use of past behavior as evidence to
the discretion of a judge. She noted that if the behavior is
recent and involves the same person, it could be used, but a
prosecutor would evaluate the surrounding evidence and related
components. She stated that cases "are apples and oranges"
because each is unique. Ultimately, she opined that [the new
definition] would not cause a greater focus on the victim's
previous behavior.
REPRESENTATIVE CLAMAN sought verification that Ms. Winston
indicated that this bill is unlikely to change the focus that
often occurs in sexual assault cases in any significant way
compared to current law.
MS. WINSTON clarified that she did not mean to suggest that it
won't change the focus. She explained that under the new
definition of consent, there would be less focus on certain
aspects of a victim's behavior than currently, because [the
behavior] wouldn't meet the definition and could even be
precluded from argument. She went on to state that in certain
circumstances, the victim's prior behavior may be relevant as it
relates to consent.
1:59:14 PM
REPRESENTATIVE CLAMAN referencing data from DOL, stated that
"the percentage of declined sexual assault and sexual abuse
cases statewide was running roughly 50 percent declined and
about 50 percent taken for prosecution." He asked Ms. Winston
if during her time actively prosecuting in a statewide
supervisory role, the 50 percent declined case rate was
consistent with her observations.
MS. WINSTON asked Representative Claman if his question pertains
to all sex offenses or just the ones related to this bill.
REPRESENTATIVE CLAMAN replied all sex offenses.
MS. WINSTON noted that without specific numbers from 2004-2010
she could not definitely indicate a percentage; however, she
recalled that the prosecution took around 65-70 percent and the
remainder percentage was declined. She conveyed that the rate
of decline was higher in some areas than others; for example,
Sexual Abuse of a Minor cases were often declined because of the
nature of the evidence.
2:01:25 PM
CHAIR KREISS-TOMKINS asked if the same case involving fraud and
the fiancé's brother was referenced by both invited testifiers.
MS. WINSTON said she had not spoken with Ms. Olson to compare
notes. She acknowledged that the cases they referenced sounded
similar. She further noted that in her case, she was unable to
charge Sexual Assault in the First Degree for lack of consent
because there wasn't a lack of consent that fit the definition.
Sexual Assault in the Second Degree, however, encapsulates
someone who is asleep or in an altered state and was therefore a
better fit.
2:04:01 PM
BRIAN HOSKEN, Student Services Director, Alaska School
Activities Association (ASAA), informed the committee that he is
a former Anchorage School District administrator with nearly 30
years of experience overseeing comprehensive academics and
activity/athletic programs. Currently, his primary role at the
Alaska School Activities Association (ASAA) is to facilitate the
Coaching Boys into Men (CBIM) program, which is in year two of a
five-year grant. He relayed that CBIM is an evidence-based
comprehensive violence prevention program designed to inspire
coaches to teach their athletes the importance of respect for
themselves, others, and women in particular. The program
incorporates strategies, scenarios, and resources needed to talk
with boys specifically about healthy and respectful
relationships, dating violence, sexual assault, and harassment.
Additionally, CBIM recognized that sports are "[tremendously]"
influential on culture and the lives of young people and the
program was designed to utilize and leverage the social capital
held by athletes. He opined that the principles of teamwork and
fair play, which are central to athletics, make sports an ideal
platform to teach healthy relationship skills. He explained
that he trains coaches to teach a curriculum designed for a 12-
week sports season in which weekly training lessons are
presented from the coach to the athletes. These weekly teaching
sessions include topics, such as personal responsibility,
insulting language, disrespectful language towards women,
digital disrespect, and understanding consent.
MR. HOSKEN noted that he looks forward to further developing the
definition of consent, adding that within the CBIM objective,
consent is discussed in regard to respecting personal boundaries
in intimate/sexual activities; furthermore, CBIM objects to the
use of pressure, threats, or force in any physical or sexual
encounter and actively opposes incidents of rape, sexual
coercion, and assault. He offered his belief that SSHB 5 would
further define and help this particular teaching component. He
went on to discuss the program goals specifically developed for
Alaska by ASAA. He said that many of the topics incorporated by
CBIM and the proposed legislation would mutually validate the
need for a preventative educational component and accountability
for perpetrators. He opined that the clarification and
affirmative definition of consent in this legislation would
strengthen the scholastic elements of CBIM. To conclude, he
said he looks forward to the opportunity to employ a passed SSHB
5 in coordination with a statewide implementation of CBIM to
further education Alaska's youth with the objective of
eradicating violence towards women.
2:09:17 PM
CHAIR KREISS-TOMKINS questioned where in Alaska CBIM originated.
MR. HOSKEN replied that the CBIM program was developed in
Sacramento, California, and has since spread nationwide. He
added that in Alaska, the program was first implemented in
Juneau.
2:10:54 PM
REPRESENTATIVE STORY asked Ms. Ellanna how she helps her
community understand the importance of the change being sought.
MS. ELLANA shared her understanding that most of the individuals
who experienced assault and who were part of the effort to bring
this concern forward had been assaulted while under the
influence of alcohol or while asleep, in which case, consent is
implied or inferred under current state law. She stated that
understanding how the current law is written is extremely
frustrating. She went on to add that if this bill were to pass,
the new definition of consent would provide context for the
police and their investigations, as well as a mechanism for
district attorneys to hold perpetrators accountable.
2:13:19 PM
CHAIR KREISS-TOMKINS announced that SSHB 5 was held over.
HB 55-PEACE OFFICER/FIREFIGHTER RETIRE BENEFITS
2:13:45 PM
CHAIR KREISS-TOMKINS announced that the final order of business
would be HOUSE BILL NO. 55, "An Act relating to participation of
certain peace officers and firefighters in the defined benefit
and defined contribution plans of the Public Employees'
Retirement System of Alaska; relating to eligibility of peace
officers and firefighters for medical, disability, and death
benefits; relating to liability of the Public Employees'
Retirement System of Alaska; and providing for an effective
date."
2:14:21 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as
prime sponsor, briefly reviewed HB 55 for the committee. He
said the bill would restore a public safety Public Employee's
Retirement System (PERS) defined benefit plan for the first time
in 15 years to a segment of Alaska's workforce - a segment that,
due to a lack of pension opportunities in the state, are leaving
Alaska after "hundreds of thousands and millions of dollars" are
spent by the state to train them effectively. He added that in
the instances these workers stay in Alaska, they have inadequate
funds to enjoy retirement in a reasonable way. He went on to
discuss the main components of the bill, explaining that [public
safety] workers would contribute a base of 8 percent as employee
contribution to their own defined benefit, which could rise to
10 percent on command of the Alaska Retirement Management (ARM)
Board. The total contribution would be 22 percent from the
employer, which is identical to Tiers III and IV. He said the
vesting would be five years; however, the provisions include a
minimum retirement age of 55 with 20 years of service.
Furthermore, to increase the plan's affordability, there is a
"high five averaging to look back on their salary," as well as a
post-retirement pension adjustment, which could be removed if
the funding of the plan is less than 90 percent. He noted that
currently, the overall system is not at 90 percent. He
summarized the saving mechanisms, including the five-year
averaging, the 10 percent base rate increase, and the absence of
full medical coverage. For these reasons, he shared his belief
that the bill is urgent.
2:18:00 PM
CHAIR KREISS-TOMKINS announced the committee would hear invited
testimony on HB 55.
2:18:31 PM
PAUL MIRANDA, President, Alaska Professional Fire Fighters
Association (AKPFFA), introduced himself and informed the
committee that he is currently an engineer at the Anchorage Fire
Department. He introduced his associate, Tom Wescott.
2:19:00 PM
TOM WESCOTT, Alaska Professional Fire Fighters Association,
introduced himself as the former president of AKPFFA and said he
is available to answer questions from the committee.
2:19:27 PM
MR. MIRANDA introduced a PowerPoint presentation, titled "Costs
of Maintaining the Status Quo" [included in the committee
packet]. He said the purpose of the presentation is to
illustrate that Alaska is facing a public safety recruitment and
retention crisis. He directed attention to slide 2, explaining
that since Tier IV became effective in 2006, several unintended
consequences became apparent for Alaska's public safety
employees. He reported recruitment difficulties in Alaska's
public safety agencies, such as the Department of Public Safety
(DPS), the Department of Corrections (DOC), and municipal fire
and police departments across the state. He said Alaska can no
longer compete with the Lower 48 when attempting to recruit
public safety employees. Police officers and paramedics are in
high demand across the country and Alaska is at a clear
disadvantage compared to other states with regard to retirement
and benefits. He asserted that Tier IV is unlike any public
safety retirement plan in the country, and it is part of the
reason Alaska communities struggle to fill public safety
positions. He addressed impactful retention costs, which would
be illustrated in later slides, adding that crucial dollars are
being siphoned off while dealing with separations and a
recruitment process that is made more difficult by the benefit
package. He stated that once Alaska's agencies find an employee
and invest time and money into him/her, there is a need to get a
return on that investment. Additionally, he anticipated
increased workers compensation costs as agencies become staffed
with an older workforce that lacks the financial security to
retire.
2:22:02 PM
MR. MIRANDA turned to slides 3 and 4, which featured testimony
from police and fire chiefs that highlighted the difficulties
surrounding recruitment and retention. He added that the
state's own actuary would assume increased retention under HB
55. He addressed workers' compensation costs on slide 5, noting
that individuals under the Tier IV plan have not yet retired
after working a full 20/25-year career in public safety because
the plan is only 15 years old. He recalled a slide from the
bill sponsor's presentation on 3/13/21, which detailed three
independent reviews of Tier IV, all indicating that most of
Alaska's public safety employees would not have enough money to
retire, even after a 30-year career. Additionally, many public
safety employees do not participate in Social Security. He
reported that the average hiring age of a public safety worker
is 31; therefore, as agencies become staffed with an older
workforce that lacks the financial security to retire, workers'
compensation costs are likely to increase due to the physical
nature of the job and the likelihood that older public safety
employees get injured at much higher rates. According to a Rand
Corporation study on California firefighters, older firefighters
are particularly prone to musculoskeletal disorders (MSDs) with
an MSD injury rate that is more than double that of their
younger colleagues and ten times greater than that of private-
sector workers of the same age. In addition to the physical
demand, he pointed out that individuals who are no longer
mentally prepared to do the job should have the ability to leave
for their own sake and for the good of the community they serve.
2:27:58 PM
MR. MIRANDA continued to slide 6 and outlined unforeseen costs,
such as increased overtime due to inadequate staffing; increased
training costs; loss of operational capabilities; loss of
experience and future leadership; and rise in organizational
stress levels. He moved to slide 7, which emphasized that
recruitment and retention problems would likely increase. He
reported that current recruitment and retention difficulties
across Alaska are occurring with 40-50 percent of the workforce
still in a defined benefit system; Tier IV currently makes up
50-60 percent of the public safety workforce and the problem
would magnify as that population grows. He stated that a 100
percent portable public safety workforce is a frightening
thought for chief officers around the state.
MR. MIRANDA turned to slide 8 and reported that there are 3,400
public safety employees in Alaska to which HB 55 would apply.
He approximated $120,000 as the average training cost, although
some agencies, such as airport police and fire, report costs as
high as $240,000.
2:30:53 PM
CHAIR KREISS-TOMKINS inquired about the component costs of the
$120,000 figure.
MR. MIRANDA responded that that figure includes things like
recruitment, testing/hiring processes, and training academy.
CHAIR KREISS-TOMKINS noted his curiosity in a cost/component
breakdown. Nonetheless, he acknowledged that retention is a
problem.
2:32:45 PM
MR. MIRANDA offered to follow up with that information. He
resumed the presentation on slide 9, titled "What is the 'fiscal
note' for maintaining the status quo?" He relayed that both DPS
and DOC had testified to the legislature of non-retirement
separations greater than 6 percent. He reminded the committee
that this is occurring when Tier IV makes up less than 60
percent of the overall public safety workforce. He proceeded to
examine the $120,000 average training cost - not increased for
inflation - and the costs of losing 1, 2, and 3 percent of a
Tier IV workforce each year on slides 10-12. The cost of losing
1 percent of the workforce, or 34 employees, would be $4,080,000
over a one-year period; $20,400,000 over a five-year period; and
$81,600,000 over a 20-year period. The cost of losing 2
percent, or 68 employees, would be $8,160,000 over a one-year
period; $40,800,000 over a five-year period; and $160,200,000
over a 20-year period. Finally, the cost of losing 3 percent of
the workforce, or 102 employees, would be $12,240,000 over a
one-year period; $61,200,000 over a five-year period; and
$244,800,000 over a 20-year period.
2:35:50 PM
MR. MIRANDA turned to slides 13 and 14 and said these costs are
not fully representative of the problems that would result from
non-retirement separation of public safety employees. He
emphasized that current costs far outweigh the cost of HB 55,
adding that a 1 percent improvement in retention would more than
cover the cost of the bill. He further noted that other
jurisdictions across the country have restored defined benefit
systems after facing similar experiences. He moved to slide 15
and concluded by reiterating that both labor and management are
united in their support for this legislation. He pointed out
that everyone has a shared interest in ensuring that Alaska has
quality public safety employees. He said adopting an adequate
retirement plan with reasonable costs, fair benefits, and shared
risk would aid in this mission.
2:38:20 PM
CHAIR KREISS-TOMKINS recalled that the bill had been
painstakingly crafted to be cost-neutral. He asked for a
refresher on the cost, if any, of this legislation.
2:39:06 PM
ELISE SORUM-BIRK, Staff, Representative Andy Josephson, Alaska
State Legislature, on behalf of Representative Josephson, prime
sponsor of HB 55, said the Division of Retirement and Benefits
had an actuary report conducted on a previous iteration of the
legislation and estimated that the annual cost would be $3.5
million. She noted that the cost would be less money paid
toward the unfunded liability. She expounded that under HB 55,
a small amount more would be paid directly towards the
employee's plan compared to the current plan; therefore, less
would be paid to the unfunded liability. She added that the
division would conduct a new actuarial analysis for the current
version of the bill when it moves to the House Finance
Committee.
CHAIR KREISS-TOMKINS, as a Tier IV employee, asked if any of his
compensation went to the unfunded liability. He sought further
clarification on how [the proposed plan] differentiates from the
status quo.
MS. SORUM-BIRK relayed that currently, employers pay the
employee a certain percentage, which contributes to retirement.
She cited an Alaska law under Senate Bill 125, adopted in 2008,
[during the Twenty-Fifth Alaska State Legislature], which sets
employer contribution rates for PERS/TRS and obligates the ARM
Board to calculate total annual contributions required to
maintain the plan's service liability each year. She said, for
example, that the rate for PERS in Alaska this fiscal year was
30.85 percent and under current law, the employer contributes 22
percent with the state making up the difference if it's not a
state employer.
CHAIR KREISS-TOMKINS interjected to verify that Ms. Sorum-Birk
was speaking in reference to Tier IV.
MS. SORUM-BIRK answered yes. She explained that a municipality
pays 22 percent, which is divided between a portion that's paid
to the employee and a portion that's paid into the retirement
system going towards the unfunded liability - partially
supplemented by the state.
2:42:25 PM
CHAIR KREISS-TOMKINS offered his understanding that every Tier
IV beneficiary has a "lock box retirement system" that both the
public sector and the employee contribute to, which is
completely removed from the defined benefit part of previous
tiers. He said he is surprised to hear that part of people's
benefits under Tier IV go towards paying the unfunded liability
for people in Tiers I-III.
MS. SORUM-BIRK noted that only what the employer pays goes
towards the unfunded liability.
CHAIR KREISS-TOMKINS asked if the contribution that goes towards
the unfunded liability, represented by Tiers I-III, is the $300
million or so odd dollars that the state pays every year.
MS. SORUM-BIRK answered, "In simple terms, yes." She added that
sometimes the state chooses to supplement that.
CHAIR KREISS-TOMKINS said he is still unclear as to how the
state is fulfilling the obligation of paying down unfunded
liability changes with the introduction of "Tier V."
MS. SORUM-BIRK replied the easiest way to think of it is that
currently, a smaller percentage of the employer's 22 percent
contribution is going towards the Tier IV employee than would go
to the Tier V employee. She said employees under Tier V would
receive 12 percent, with 10 percent going toward the unfunded
liability.
2:45:05 PM
REPRESENTATIVE STORY directed the committee to the state actuary
report narrative [included in the committee packet], which
provided a fiscal note analysis for a previous iteration of the
legislation. She asked if the pie graph on page 2 accurately
depicts the figures being discussed.
MS. SORUM-BIRK answered yes.
REPRESENTATIVE STORY asked for confirmation that Ms. Sorum-Birk
had stated that the proposed retirement plan is comparable to
packages offered by other states.
MS. SORUM-BIRK acknowledged that Washington is one of those
states. She deferred to Mr. Wescott for further information.
2:46:55 PM
MR. WESCOTT said compared to other states, the proposed plan is
a greatly reduced benefit from what Alaska had in the past;
additionally, it was modeled after the most well-functioning
plans in the country that are fully funded, such as Washington
and Wisconsin. He explained that aspects, such as the ability
to raise employee rates and the ability to withhold inflation
proofing, allow the plan to get back on track should it get
behind and make the risk shared opposed to the state holding all
the risk.
REPRESENTATIVE JOSEPHSON shared his understanding that
Washington's plan proved so solvent that the age of retirement
was reduced from 55 to 53. He asked if that is correct.
MR. WESTSCOTT confirmed [that the age of retirement was lowered
in Washington].
2:49:20 PM
REPRESENTATIVE STORY questioned whether the size of the employee
population in Washington impacted the ability to "drop" the
payments.
MR. WESCOTT said he is unsure whether the population size had
any significance. He acknowledged that the pool of public
safety employees in Washington's system is larger than Alaska's.
He recalled that historically, Anchorage's police and fire plan
was widely successful and ahead of its time with only 800
employees. He explained that good and bad plans are separated
by those that make consistent, steady contributions in the good
times, as well as the bad. Ultimately, he opined that the size
doesn't matter if sound practices are followed.
2:52:03 PM
CHAIR KREISS-TOMKINS inquired about Alaska engaging in that in
the past.
MR. WESCOTT explained that when looking at past contribution
rates into PERS, there was a time in the early 2000s when Alaska
thought it was better funded than it was, so employer
contributions fluctuated significantly lower than today's rates.
He said regardless of being fully funded or not, the proposed
plan would continue making minimum contributions of 8 percent
for the employee and 12 percent for the employer. He added that
those who implemented Tier IV in 2005 recognize its
shortcomings, especially in regard to public safety careers,
which are shorter and involve physical and mental stresses.
2:55:11 PM
REPRESENTATIVE TARR recalled being a staff person during the
transition to Tier IV, explaining that the legislature and
leadership at that time implemented $250 million in budget cuts
over five years, which resulted in short funding the retirement
system.
CHAIR KREISS-TOMKINS posited that in effect, there was an
existing unfunded liability that needed to be paid down and the
state elected not to do so. Nonetheless, he pointed out that
the unfunded liability existed because Tiers I-III were not
actuarially sound in the first place.
REPRESENTATIVE TARR agreed that it was a combination of both
conjoined with economic downturns that exacerbated the problem,
which explains why, under Governor Sean Parnell, there was a
substantial deposit in an attempt to catch up.
2:56:57 PM
REPRESENTATIVE JOSEPHSON said the actuarial negligence can't be
understated or overstated. He reported that according to the
Legislative Finance Division, the settlement was $500 million on
that item alone. He opined that the proposed plan "[hits] the
sweet spot."
CHAIR KREISS-TOMKINS sought clarification on whether the
actuarial negligence of Tiers I-III can or cannot be overstated.
REPRESENTATIVE JOSEPHSON clarified that [the actuarial
negligence] was severe. He offered his understanding that there
was a lack of vigilance and advice was taken by an actuary who
failed [the state] as evidenced by the settlement.
CHAIR KREISS-TOMKINS said he feels reassured by what seems to be
extremely aggressive diligence. He stated that there was
unbelievable intergenerational injustice between Tiers I-III,
adding that the amount of money spent by his generation and
those younger to subsidize the negligence of Tiers I-III each
year could pay for pre-kindergarten and free college for every
Alaskan. He emphasized the importance of ensuring that the
proposed plan is fully actuarially sound for future generations
and reiterated his increasing confidence that it is [actuarially
sound].
2:59:18 PM
REPRESENTATIVE JOSEPHSON noted that the legislation mentioned by
Representative Tarr has been "re-amortized," as it was $700
million per year and is currently $350 million per year. He
reported that the unfunded liability decreased from $11 billion
to approximately $6.5 billion.
CHAIR KREISS-TOMKINS surmised that the actuarial negligence and
incompetence was in addition to wishful political thinking,
which hurt the state and future generations.
2:59:55 PM
REPRESENTATIVE STORY related that teachers under the new tier
are also lacking Social Security, which has similarly resulted
in retention difficulties across the state. She questioned
whether expanding the proposed plan to all public employees was
considered.
REPRESENTATIVE JOSEPHSON said he is aware and sympathetic to it,
adding that a new report from two months ago indicated that it
could be done with some degree of security. He pointed out that
there are unique circumstances associated with the [public
safety] cohort in addition to the huge training cost born by the
state. He offered his belief that the [public safety] cohort
would have more support and could lead the way, adding that if
solvency is proven over a short number of years, an opportunity
could present itself.
3:01:58 PM
CHAIR KREISS-TOMKINS, regarding the Tier V plan's health
reimbursement arrangement (HRA), asked for the analysis on how
sustainable 3 percent set aside for health is relative to
projections for cost of health care, especially accounting for
the rapidly escalating projections.
REPRESENTATIVE JOSEPHSON answered that it is a major "give" from
the stakeholders because they are aware of its cost and
unpredictability. He deferred to Ms. Sorum-Birk for further
explanation.
MS. SORUM-BIRK relayed that the HRA would act as a stopgap,
adding that the new tier would have the same HRA as Tier IV and
could be used to pay for medical expenses or to pay premiums.
She explained that it's based off a 3 percent average PERS
salary, which is significantly lower than the average public
safety PERS salary.
3:03:44 PM
MR. MIRANDA confirmed the comments from Ms. Sorum-Birk and
Representative Josephson. He pointed out that the explosion in
health care costs was a contributing factor to the unfunded
liability of the previous tiers. He calculated that based on
the current cost of pre-Medicare coverage, the HRA would cover
three to five years of medical premiums. There would still be a
gap for most individuals, but the bill recognizes the unwanted
possibility of creating an unfunded liability, which is why it
removes the pre-Medicare medical coverage that was in the
previous defined benefit tiers. He added that employees can
look for ways to bridge the gap between retirement age and
eligibility age - the HRA would help with that, but it wouldn't
be a total solution.
3:06:05 PM
CHAIR KREISS-TOMKINS announced that HB 55 was held over.
3:07:13 PM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 3:07
p.m.