Legislature(1997 - 1998)
02/18/1998 01:41 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
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SENATE JUDICIARY COMMITTEE
February 18, 1998
1:41 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Johnny Ellis
MEMBERS ABSENT
Senator Sean Parnell
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 29
Proposing amendments to the Constitution of the State of Alaska
requiring that the provisions of a bill that levy new state taxes
require the affirmative vote of at least two-thirds of the
membership of each house of the legislature.
- MOVED SJR 29 OUT OF COMMITTEE
CS FOR SENATE BILL NO. 274(JUD)
"An Act relating to fees for probation and parole."
- MOVED CSSB 274(JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SJR 29 - See Senate Judiciary Committee minutes dated 4/28/97.
SB 274 - No previous action to record.
WITNESS REGISTER
Mr. Ralph Bennett
Staff to Senator Robin Taylor
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SJR 29
Senator Jerry Ward
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 274
Mr. Craig Johnson
Staff to Senator Jerry Ward
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Commented on SB 274
Mr. Blair McCune
Alaska Public Defender
900 West 5th Street #200
Anchorage, Ak 99501
POSITION STATEMENT: Commented on SB 274
Ms. Lynda Zaugg
Department of Corrections
4500 Diplomacy Drive
Anchorage, Ak 99510
POSITION STATEMENT: Commented on SB 274
Mr. Jim Frey
SR Box 360
Gakona, Ak 99586
POSITION STATEMENT: Commented on SB 274
ACTION NARRATIVE
TAPE 98-10, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:41 p.m. and noted the presence of SENATOR MILLER and
SENATOR ELLIS. The first order of business was SJR 29.
SJR 29 - CONST AM: SUPERMAJORITY FOR TAX LEVIES
MR. RALPH BENNETT, staff to SENATOR TAYLOR, came forward to present
SJR 29. He explained SJR 29 as a constitutional amendment requiring
a two-thirds vote of the legislature before any new tax could be
imposed. Judging from the number of tax proposals presented to the
Twentieth Alaska Legislature, he stated the day is approaching when
new taxes will be given serious consideration. This amendment, if
adopted by the voters, would assure wide support for any new state
tax.
SENATOR MILLER moved SJR 29 from committee with individual
recommendations. Without objection, it was so ordered.
SB 274 - PROBATION AND PAROLE FEES
SENATOR JERRY WARD, sponsor of SB 274, said this bill sets up a
procedure for parolees to pay their debt to society. He suggested
that this legislation puts responsibility back onto those people
causing the problem. He commented there are 4,600 people on
probation and parole currently and calculated that if each of these
people paid $3.30 per day it would generate 5.5 million dollars. He
said also the state needs to look at options to deal with prison
overcrowding. He noted currently there is a request for proposal
out to send more prisoners out of state. He emphasized that it is
not the citizens' fault that people commit crimes and this bill
will create a mechanism that will have criminals pay their debt to
society. SENATOR WARD said the bill contains a provision for people
who cannot afford to pay the $3.30. This provision says those who
are incapable of paying will have their permanent fund dividend
(PFD) garnished. He said the fee equals the amount of the dividend
and the bill was written that way purposefully. SENATOR WARD
commented that the citizens should not bear the burden of the cost
of incarceration for law breakers, the criminals themselves should
bear the cost. He said this is not a large cost and those who do
not comply will have their permanent fund dividends attached. He
stated this bill is a proper thing to be considered in light of
the current tight financial situation faced by the state.
SENATOR ELLIS asked if SENATOR WARD knew how long ago a previous
fee was repealed. SENATOR WARD replied it was 1984, when he served
in the legislature.
SENATOR ELLIS asked why he had picked a fee four times larger than
the national average. SENATOR WARD replied he chose the amount to
be roughly equal to the amount of the permanent fund dividend.
MR. CRAIG JOHNSON explained the amendment they had brought. MR.
JOHNSON said the amendment was brought forward by the permanent
fund division itself, and merely codifies the fact that garnishment
of a PFD for the purpose of this bill will not take precedence over
reparations for victims of domestic violence. He said this was
suggested by the Attorney General and is a technical amendment.
SENATOR MILLER moved the adoption of amendment #1. Without
objection, it was so ordered.
MR. BLAIR MCCUNE, representing the Public Defenders Office,
expressed some concerns about the bill. He worried that payment of
fees might be required as a condition of parole or probation. His
office represents people in parole and probation revocation
proceedings and he is concerned that caseloads might increase under
this bill. He referred to criminal rule number 39 and rule number
209 of appellate procedure and said these rules require recoupment
of costs for appointed counsel. MR. MCCUNE said these rules allow
for a judgment to be entered in a civil action, including the
garnishment of a dividend, rather than the revocation of the
individual's probation or parole. MR. MCCUNE was further concerned
that this bill might apply to misdemeanor probation which is
generally unsupervised by a probation officer. He suggested the
costs lie in supervised, felony probation. Lastly, MR. MCCUNE
mentioned section 7 which reads; "the board shall revoke parole";
he believes it would be better to leave the board with more
flexibility and not mandate the revocation of parole. MR. MCCUNE
also noted that the asterisk fiscal note was the result of the
possibility of his office encountering more probation and parole
revocation hearings.
SENATOR WARD remarked it was quite specific in the bill that it was
those who are able to pay and choose not to who would be sent back
to jail. He stated this is a revenue generating bill which, if
enacted, will generate 5.5 million dollars, roughly the cost of
sending 250-300 people out of state to Arizona. He emphasized this
is where criminals pay for what they are costing the state. He
continued, restating that this is a revenue generating bill and the
yearly fee exactly equals a permanent fund dividend. He said, even
so, it is not that much and only equals three quarters of an hour
of work each day at minimum wage. He concluded that this revenue
would free up money for education and other important state
expenses.
CHAIRMAN TAYLOR asked BLAIR MCCUNE about the automatic revocation
of parole and noted that under section 3 the only amendment is to
add to discretionary items that the judge may impose. CHAIRMAN
TAYLOR said it reads; "may be required to pay" and so is
discretionary and would require many steps to revoke parole. He
does not see it as a mandate and inquired if MR. MCCUNE did. MR.
MCCUNE replied he was looking at section 4 that says "shall require
the periodic probation fee to be paid." He said he understands the
court can decide conditions of probation/parole but it appears to
him, due to section 4, that this is a required condition. His
concern is that a person who is unable to pay will have their
parole automatically revoked. He is worried about a case where the
parole board will not have the discretion to give someone another
chance.
MS. LYNDA ZAUGG, representing the Department of Corrections,
informed the committee that the department does not disagree with
the concept of SB 274, but that there is concern with the fiscal
impact. MS. ZAUGG explained the issue is complicated. In the late
1980's these fees existed and there was great difficulty collecting
them. According to MS. ZAUGG, only ten per cent out of 3,000 were
able to pay their monthly fees. She said the department is looking
at the current population of 4,100 active parole cases and their
potential for payment. MS. ZAUGG stated that in the 80's offenders
were allowed to perform community work service in lieu of their
monthly fee. This is not an option under SENATOR WARD'S bill. She
said these factors make it difficult to predict how much would
actually be collected under this bill. MS. ZAUGG said the fee was
repealed in 1989 primarily because it was a hardship to offenders,
particularly those in rural areas without a strong cash economy.
She mentioned that the bill does take into consideration indigence
but requires hearings to determine if an offender is indigent.
These hearings will be a costly, time consuming process, again,
especially for offenders in rural areas. She said the fees under
this bill are much higher than the old fees and considerably higher
than anywhere else in the nation. MS. ZAUGG said this bill allows
for probation to be revoked in cases where the fee is not paid and
this will result in probationers returning to an expensive
institutional setting. She asserted that this bill requires the
revocation of parole by the parole board unless the parolee shows
by a preponderance of the evidence that he or she is unable to pay.
According to MS. ZAUGG, this does not apply if the offender is
indigent; however, in 1989 in Representative Foster's district, 99
per cent of offenders were unable to pay the fee. She cited this as
a major factor in the repeal of that fee. She explained that though
the bill allows for the garnishment of a PFD, the fee falls ninth
in line to those debts that might already bind an offenders PFD.
She noted there are currently 4,100 people under active supervision
and more than 50 per cent of them have been under supervision for
more than one year. She said the importance of this is that a felon
who has been incarcerated at any time during a year is not eligible
for the dividend. MS. ZAUGG concluded the pool of offenders with a
PFD available for attachment is smaller than meets the eye.
CHAIRMAN TAYLOR asked if a levy against the permanent fund dividend
was utilized in order to collect fees previously and MS. ZAUGG said
that was discussed at the time but was not sure if it was done.
CHAIRMAN TAYLOR stated it was not part of that bill.
SENATOR ELLIS asked if other agencies that might be impacted had
been contacted about this bill.
SENATOR WARD said part of the problem historically had been
collection of the fee and that was why his bill has a third-party
collection provision into it. He stated this would help relieve the
burden on staff, who should not function as a collection agency.
SENATOR ELLIS asked MS. ZAUGG if that meant there would not be any
staff time necessary for the Department to implement this bill. MS.
ZAUGG responded that it appears there would be time involved but
the amount of time is unclear.
SENATOR ELLIS inquired about the process of proving indigence. He
asked who is required to prove what and if the whole thing is
difficult to sort out. LYNDA ZAUGG replied it is always difficult
when dealing with an offender expected to provide information on
his or her financial situation. She said in this situation people
may be resistant to providing information and a fairly elaborate
process might be necessary, such is as used in the court system.
MR. JIM FREY, on teleconference from Slana, said he did not have a
copy of the bill and therefore would not comment. CHAIRMAN TAYLOR
explained basically what the bill would do and MR. FREY replied
that he thought those people didn't have any money. CHAIRMAN TAYLOR
then explained the provision made for those unable to pay and MR.
FREY said he'd agree with that.
SENATOR WARD asked Ms. ZAUGG about the number of people on
probation and parole. He had 4,600 versus her 4,100 and wanted to
know what happened to the other 500 people. MS. ZAUGG replied that
4,100 represents the number of active cases; she estimated there
are 600 outstanding warrants across the state. She said these
people have absconded probation and will have people active in
their case once they are rearrested.
SENATOR MILLER moved SB 274 as amended out of committee with
individual recommendations. Without objection, it was so ordered.
CHAIRMAN TAYLOR announced that MR. GUANELI was present today to
respond to the subpoenas issued by the committee. MR. GUANELI
agreed and thanked the committee on behalf of Commissioners Pugh
and Otte, as well as Attorney General Bothelo for the extra week to
gather the information and deliver it to Mr. Norsworthy. MR.
GUANELI, representing the Department of Law, said he was here to
inform the committee what has been provided, what has not been
provided and why. He said the Department of Law has provided the
following:
22 case files from the office of the Special Prosecutor
regarding the cases investigated by the Alaska State Troopers,
one general file of correspondence and notes from the same
office,
and one file from MR. GUANELI's office of memoranda, notes
and papers.
MR. GUANELI stated the department has not asserted attorney/client
privilege nor any other privilege in respect to any of that
material. Everything in their possession has been turned over,
according to MR. GUANELI. He stated that he personally reviewed all
the documents turned over by all departments to ensure they had
received all the relevant information and that all offices had been
responsive to the subpoena.
MR. GUANELI reported the Department of Corrections has turned over
the following:
one file from the Commissioner's office that had been
previously reviewed by Mr. Norsworthy,
one small file from the office of the Director of
Institutions,
and one small file from the office of the Director of
Community Corrections.
MR. GUANELI said these last two divisions were those with employees
involved with the improper accesses of APSIN. He also said those
small files contained some personnel records which were segregated.
He confirmed that the remainder of the files, including notes, E-
mail, and memoranda have been turned over.
Additionally, there were personnel files involving a number of
employees, kept both in the central office of the department and in
offices within each division, that are still in the Department of
Corrections' Anchorage office. MR. GUANELI observed these records
require special handling. He remarked that administrative
regulations dictate that not only a subpoena but a written
confidentiality agreement is required for access to personnel
files. He said he and Mr. Norsworthy are still in discussion about
that but there was an agreement that those records would not be
turned over until an agreement had been worked out. Therefore,
those personnel files and the other portions of files relating to
personnel records remain in the anchorage office but are ready to
be turned over whenever the agreement is reached.
MR. GUANELI listed further records turned over by the Department of
Public Safety including:
two large binders from the Commissioner's office in Juneau,
along with a variety of miscellaneous papers relating to phone
logs, e-mails, correspondence and certain spreadsheets involved in
the audit,
two large binders from the APSIN office of the Anchorage
location of the department including audit records,
and other miscellaneous files also dealing with the audit
including inquiries made to the agency, responses to these
inquiries, memos and policies.
From the State Troopers, MR. GUANELI said, information has been
turned over including:
one box containing investigative files including reports and
transcripts on 22 investigations,
one box of notes, trooper notebooks and internal memos (some
notations relating to other cases have been blacked out),
one box of the actual cassette tapes that were transcribed,
and the office has retained personnel files related to the
investigation that are available to be turned over upon agreement.
MR. GUANELI showed the committee a digital photo that had been
electronically transmitted to him from Anchorage. He noted all the
contents were clearly labeled in the common State Trooper fashion.
He estimated there to be roughly five bankers boxes worth of
material covering primarily the investigations and the audit. MR.
GUANELI guessed the personnel records would constitute another full
bankers box. He noted that he did, in fact, request the subpoenas,
as it was his understanding that this was the proper way to
transmit the documents to the committee. It was his office's view
that many of these records are confidential by statute. Regarding
these records, MR. GUANELI repeated that the subpoenas issued
followed the proper procedure and he thanked the committee once
again for the additional time to procure the records.
CHAIRMAN TAYLOR reminded MR. GUANELI that he was under oath from a
previous swearing in. He asked for a formal authentication of the
records, for the record, asking if the records conveyed to the
committee were kept in the normal course of business. MR. GUANELI
acknowledged that the records were kept in the normal course of
business and added a diligent search was made of each agency for
those files and they were reviewed and properly segregated from
what the department determined to be personnel records.
CHAIRMAN TAYLOR detailed his question, asking if all records,
ranging from notes and memos to investigative reports and
interviews were all done in the process of carrying out these
functions of these departments in investigating the questions that
arose from the unauthorized use of APSIN. MR. GUANELI affirmed that
this was correct.
CHAIRMAN TAYLOR, understanding the delicate nature of these
documents (some of which may carry confidentiality requirements),
asked MR. GUANELI if, as an attorney, he felt the committee had
different obligations under the statutes, regarding disclosure,
than the Executive Branch. MR. GUANELI replied he was unable to
provide legal advice to the committee as they had already retained
separate counsel in the person of Mr. Norsworthy in addition to
Legislative counsel. He said, however, in his view the committee
stands in the shoes of the executive branch now that these
documents have been conveyed. He suggested that some thought ought
to be given to the use and dissemination of that material. CHAIRMAN
TAYLOR said he understands this point and was simply being generic
in his question. He expressed his belief that the Alaska Statutes
protecting confidentiality are just as binding on the legislative
branch as the executive. MR. GUANELI agreed.
CHAIRMAN TAYLOR asked why it is necessary for the members of the
committee or its chair to sign an agreement not to violate those
state laws. MR. GUANELI replied that there is an administrative
regulation carrying the force of law that requires it. He said they
feel bound by that procedure.
CHAIRMAN TAYLOR indicated that no one on the committee would have
a problem with that, as they all understand the confidential nature
of this material. He said he had asked Mr. Norsworthy to draft the
agreement in as limited a fashion as possible and he intended to
get a copy of that to everyone as soon as possible to expedite this
proceeding.
CHAIRMAN TAYLOR asked MR. GUANELI if the incidents involving the
mayor of Wasilla, her husband, and her finance director were
included in the 22 case files that had been discussed. MR. GUANELI
believed that this matter was included but did not have a list of
those particular incidents at hand.
CHAIRMAN TAYLOR asked if those victims were notified what had
happened in that case. CHAIRMAN TAYLOR said the mayor had brought
a complaint to the State Troopers and he wondered if anyone had
contacted her and informed her that prosecution had been declined
in that case. MR. GUANELI did not know, but assured CHAIRMAN TAYLOR
he would inquire of Commissioner Otte.
CHAIRMAN TAYLOR stated, for the record, that the subpoenas are
still in force as concerns those parties, but until the committee
had an opportunity to review the information, they would not be in
a position to ask any questions. He thanked MR. GUANELI for his
cooperation and that of the Commissioners involved, and promised he
would get that letter to MR. GUANELI as fast as possible in order
that they might review those other records also.
TAPE 98-10, SIDE B
Number 001
SENATOR ELLIS protested the committee moving forward with this. He
refused to sign the letter requesting subpoena powers and objected
to the motion to seek those powers when it was made in committee.
SENATOR ELLIS maintained that the State Troopers spent 900 staff
hours so far on the APSIN cases and everyone involved, as far as he
knows, believed it to be a thorough investigation. SENATOR ELLIS
cited a newspaper article in which CHAIRMAN TAYLOR complained of
the slowness of the investigation; SENATOR ELLIS said he had
learned the work would have been completed earlier had the
investigation not been interrupted by the necessity of reassigning
two investigators to homicide cases over the summer. SENATOR ELLIS
said that troopers who might otherwise have been working on
homicides were instead occupied with the APSIN case. He said this
not to minimize the seriousness the troopers assigned to the APSIN
investigation, but to emphasize the scarcity of their resources. He
recounted a story of a family friend whose daughter had been
brutally murdered a number of years ago and was told by the
troopers in the last two years that they were unable to make the
progress they had hoped due to a lack of resources. SENATOR ELLIS
did not propose any direct connection between these two incidents,
but only meant to emphasize the lack of resources available in that
department. He remarked that this troubled him, especially after
learning that investigators had been reassigned back and forth
between homicides and the APSIN investigation.
SENATOR ELLIS asked if, in addition to Mr. Norsworthy, there was
another person involved on an open-ended contract in this inquiry,
as well as the committee staff. He noted the widespread concern
over falling oil prices and commented that the $7,500 already spent
and the obligation of an open-ended contract should be understood
by everyone involved. He remarked that legislators have been kept
fully apprised of the troopers' investigation and he cannot think
of this as anything more than second-guessing the troopers and the
Department of Law who determined that there were zero violations
and nothing to prosecute. SENATOR ELLIS surmised the committee is
seeking this information to second-guess that decision and see if
they think, as legislators, there were criminal violations that
should be prosecuted.
SENATOR ELLIS did not find the photo presented by MR. GUANELI
amusing. He observed that someone spent the time necessary to
organize and prepare this material, which he said was turned over
just about as soon as it was asked for. He has difficulty seeing
where this will lead and he concluded by asking CHAIRMAN TAYLOR how
he was planning to proceed. He asked if there was a time frame for
Mr. Norsworthy, if there was a limit on the number of people who
would be brought in, and if there were security measures in place
to deal with the information transmitted.
CHAIRMAN TAYLOR replied that the matter was raised during the
election in 1996 when complaints were brought by citizens and
candidates to the State Troopers. He noted that today is February
1998 and asked why someone chose to take the amount of time they
did to investigate this. He stated the investigation was only
concluded as of a few days ago when, because of the subpoena issued
from the committee, someone decided they must conclude the review
of whether or not they were going to prosecute. CHAIRMAN TAYLOR
said the information he had indicated that, until this point, they
had only reviewed eight of the 26 cases that went to their
department, leaving them with eighteen cases that had not yet been
reviewed. CHAIRMAN TAYLOR noted that, miraculously, that review has
since been concluded in a few days. CHAIRMAN TAYLOR reflected that
someone had taken a lot of time to show that no offenses had been
committed and yet literally hundreds of thousands of dollars have
now been spent in the investigation by the Department of Law of
something that was apparently not criminal. CHAIRMAN TAYLOR stated
that he did not motivate this investigation, nor did the judiciary
committee. He stated the investigation was motivated by citizens
whose rights to privacy had been grossly invaded. He said that the
last time this occurred, an employee was terminated and that had
not yet happened in this case.
CHAIRMAN TAYLOR said that this spontaneous outbreak of curiosity
was of such proportions as to require the inclusion of funds in the
Governor's budget to revamp APSIN. Major policy has been changed
within the department, manuals rewritten and new user agreements
have been created due to this, according to CHAIRMAN TAYLOR. He
believes the committee's purpose is to find out fully what
happened; so if necessary, they may pass legislation to correct the
problem. CHAIRMAN TAYLOR said in the past incident the legislature
had passed legislation and was assured it was sufficient to bring
criminal charges in any future case of unauthorized access.
CHAIRMAN TAYLOR suggested reading the language of the law which
defines unauthorized access as an unauthorized purpose and is
against the law. He has not yet seen the interpretation of the
Department of Law that entry into the system due to curiosity is
not a violation of the law. CHAIRMAN TAYLOR does not read the law
that way and remarked that if it is necessary to rewrite it in such
a fashion that in the future people will be fired and prosecuted,
the committee needs to know that. CHAIRMAN TAYLOR stated it is not
just politicians and legislators but citizens whose privacy rights
are being violated by State of Alaska employees. He said if the
laws are ineptly drawn and do not allow prosecution of these
people, they need to be changed. He said he is looking for an
affirmative solution and there should be a very good explanation as
to what went wrong and allowed this, and what is still wrong that
will tolerate it. He restated that no one has lost a job.
SENATOR ELLIS asked if the Chairman did not believe that an
adequate explanation had been given in the joint hearing held last
year. CHAIRMAN TAYLOR replied that they had been told at that
hearing the investigation was not complete and the department
offered to undertake one at that time.
SENATOR ELLIS responded that the plan was laid out and the
legislature had been apprised of their progress. CHAIRMAN TAYLOR
replied that he had not seen an appraisal since the last hearing.
SENATOR ELLIS thought it had been sent to the President and the
Speaker and CHAIRMAN TAYLOR replied the last document arrived the
16th of February and he had heard nothing prior since last May. He
said he thinks this is a major problem which may take legislation
to fix and this is the committee to do it in order to make certain
this does not happen to other people in the future.
SENATOR PEARCE added she believed the reasons to proceed were the
fact that unauthorized access should be as clear as black and white
and does not appear to be so. She commented they had been told
there were different levels of curiosity and she was curious
herself to examine these levels of curiosity and see which results
in what. She said if it is true that someone got a promotion as a
result of a certain type of curiosity, she'd be very interested in
that. From a financial standpoint, SENATOR PEARCE said if they find
that people were disciplined by the loss of their APSIN access
privileges, rendering them unable to do their job, were allowed to
come to work and be paid for no service to the state, this is a
misuse of funds and she wants to be aware of it. She stated this
discipline is no discipline at all and, if this is true, it should
come out. CHAIRMAN TAYLOR said hopefully this would be in the files
and, once the agreement was signed with MR. GUANELI, they could
proceed. He mentioned that much of this will have to take place in
executive session and access to it will have to be carefully
monitored. CHAIRMAN TAYLOR said he would circulate a copy of the
letter to the committee so they could move on.
SENATOR ELLIS asked why last year this was a joint effort with the
House Judiciary Committee and now they were proceeding alone.
CHAIRMAN TAYLOR replied it would be simpler and easier to sit down
with a small group of people.
SENATOR ELLIS asked if he should assume that the entire session
would be the time frame in which they would continue to work on
this issue. CHAIRMAN TAYLOR assured SENATOR ELLIS that he hoped
not, and expected it could be wrapped up in the near future.
CHAIRMAN TAYLOR mentioned that there had already been major policy
changes in the department. He said this recent policy change
protects legislators but not necessarily anyone else. He suggested
that, as the policy making body of the state, they should take a
look at these changes. SENATOR ELLIS commented that if no changes
had been made, the committee would be criticizing the department
for inaction.
With no further business to come before the committee, CHAIRMAN
TAYLOR adjourned the meeting at 2:45 p.m.
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