Legislature(1997 - 1998)
04/01/1998 01:40 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 1, 1998
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 297
"An Act relating to breast-feeding."
- MOVED CSSB 297(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 319(L&C)
"An Act relating to arbitration; amending Rules 57(a) and 77(g),
Alaska Rules of Civil Procedure; and providing for an effective
date."
- MOVED CSSB 319(L&C) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 297 - No previous action to report.
SB 319 - See Labor and Commerce minutes dated 3/10/98 and 3/12/98.
WITNESS REGISTER
Ms. Karen Pearson
Department of Health, Education and Social Services
Division of Public Health
350 Main Street
Juneau, Ak 99811
POSITION STATEMENT: Supported SB 297
Ms. Nancy Rody
Department of Health, Education and Social Services
Women, Infants and Children program
130 Seward St.
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 297
Ms. Edna Abbot
PO Box 99803
Juneau, Ak 99803
POSITION STATEMENT: Supported SB 297
Ms. Sharon Glick
9567 Eagle St.
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 297
Ms. Susan Pollard
814 Goldbelt
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 297
Ms. Monica Gross
1175 Mendenhall Peninsula Rd.
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 297
Ms. Caren Robinson
PO Box 33702
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 297
Ms. Margie Hamburger
215 Gastineau Ave.
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 297
Ms. Pam Cure
5045 N. Douglas Hwy.
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 297
Ms. Grace Elliot
8124 Dogwood Lane
Juneau, Ak 99801
POSITION STATEMENT: Supported SB 297
Mr. Jerry Burnett
Staff to Senator Randy Taylor
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 319
Mr. Bill McNall
921 W. 6th Ave.
Anchorage, Ak 99501
POSITION STATEMENT: Supported SB 319
Mr. Steve DeVries
Anchorage, Ak
POSITION STATEMENT: Supported SB 319
ACTION NARRATIVE
TAPE 98-26, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:40 and brought up SB 297 as the first order of business.
CHAIRMAN TAYLOR said he scheduled the bill because he believes it
is important, supports SENATOR ELLIS in his efforts and he wants to
move it from committee.
SB 297 - BREAST-FEEDING IN PUBLIC PLACE
SENATOR ELLIS thanked CHAIRMAN TAYLOR for his support and offered
amendment #1 which reduces the penalty for ejecting a woman for
breast-feeding in public from a class B misdemeanor to a violation,
so as not to incur the costs that accompany a misdemeanor. SENATOR
ELLIS moved the amendment and without objection, it was adopted.
SENATOR ELLIS noted the bill has received an outpouring of support.
SENATOR ELLIS explained the bill ensures a woman's right to breast-
feed in a public place under state law and city ordinances, and
makes interfering with this right a violation. SENATOR ELLIS
indicated breast-feeding is beneficial to both the mother and the
child for numerous reasons.
SENATOR PARNELL asked about the necessity of the findings section
of SB 297; SENATOR ELLIS remarked they had only been included for
the edification for the public and CHAIRMAN TAYLOR commented they
could possibly be removed later.
MS. KAREN PEARSON, representing the Division of Public Health,
indicated that breast-feeding is good for the mother, the child and
the economy of the family and SB 297 sends a positive message to
society that breast-feeding is a normal, natural function. Her
division appreciates the help in spreading this message.
Number 120
MS. NANCY RODY, Director of the Women, Infants and Children program
(WIC), explained there is a barrier to breast-feeding based in the
fear of what other people might think. She has heard many reports
of women being harassed while breast-feeding in public. MS. Rody
said young women and poor women are more sensitive to public
pressure about breast-feeding and this bill would send a good
message about the benefits of breast-feeding.
MS. ANN KNOBBE testified via teleconference from Mat-Su. As a nurse
and lactation consultant for the WIC program in Mat-Su, she asked
the committee to pass this bill and send a good message to the
public.
MS. ROBERTA GILLOTT testified via teleconference from Dillingham
and expressed her support, as a new mother who has experienced
discrimination, for SB 297.
Number 187
MS. FAITH CHALIFOUR-KROUS, an accredited breast-feeding counselor
from La Leche League International, testified via teleconference
from Anchorage about the importance of encouraging young mothers to
breast-feed. She said breast-feeding is a natural healthy way to
bond with and feed your baby.
MS. EDNA ABBOT thanked the committee for the legislation, saying it
will increase the percentage of mothers who breast-feed their
children longer. She showed a picture of her child and expressed
her appreciation to the committee. SENATOR ELLIS noted that MS.
ABBOT helped prepare this legislation and he applauded her efforts.
Number 232
MS. SHARON GLICK testified to the fact that mothers need to get out
of the house to retain their sanity. MS. GLICK said babies get
breast-fed on demand and that means mothers never know where they
may need to feed their baby. She said this bill is really about the
rights of the baby to be able to nurse whenever and wherever they
need to.
MS. SUSAN POLLARD said this bill is a step toward making breast-
feeding the cultural norm. She thanked CHAIRMAN TAYLOR and the
committee for allowing the bills passage on behalf of every mother
and baby who can now nurse more comfortably.
CHAIRMAN TAYLOR remarked that the bill is about a cultural shift;
saying it harkens back to 250-300 years of puritanical concerns
about viewing the body. CHAIRMAN TAYLOR said personally, nothing
makes him feel more comfortable and warms his heart more than a
nursing mother with her baby.
MS. HEATHER BARBER, a Mat-Su mom, added her support to the bill.
Number 285
MR. STEVEN JAQUIER, who described himself as the "token male"
expressed his personal belief that breast fed babies do better than
bottle fed babies and thanked the committee for the piece of
legislation.
MS. MONICA GROSS, a pediatrician and mother of three, supported the
bill and said it sends a message to the rest of the nation that the
people of Alaska support its children.
Ms. CAREN ROBINSON, representing the Alaska Women's Lobby,
expressed strong support for the bill and spoke of her personal
experience nursing her son, saying it was an incredible bonding
experience she will never forget.
MS. MARGIE HAMBURGER spoke in favor of the bill, saying that
employers should also be educated and encouraged to support breast-
feeding mothers.
Ms. PAM CURE commented that in a culture that pervasively depicts
women as sex objects, the nurturing role of a breast-feeding mom is
even more important and should be encouraged. MS. CURE said a
mother should be free to enjoy society and this bill allows for the
protection of that freedom. She wholeheartedly supports the bill.
Number 363
MS. GRACE ELLIOT said she was thrilled to see the bill. She
recalled a campaign to promote breast-feeding she encountered in
Canada which employed huge billboards saying, "Fast food - Two
convenient locations" and "Sometimes it's ok to suck up to the
boss."
MS. ANNE CARPENETI, representing the Department of Law, explained
that her interpretation of section 3 of the bill, about "indecent
viewing," is that it prohibits someone from secretly photographing
a woman who is breast-feeding. In response to a question from
SENATOR PARNELL, she said it is not intended to apply to anything
else. MS. CARPENETI said the Department supports the bill.
MS. CARPENETI said, in order to correspond with SENATOR ELLIS's
amendment, she believes the word "crime" should be changed to
"offense" on page 2, line 28. CHAIRMAN TAYLOR moved this change as
amendment #2. Without objection, the amendment was adopted.
SENATOR ELLIS moved the bill out of committee with individual
recommendations. Without objection, it was so ordered.
SB 319 - ARBITRATION
MR. JERRY BURNETT, staff to Senator Randy Phillips, presented the
bill as a means to clear up some confusion surrounding arbitration.
SB 319 requires any agreement to arbitration must clearly state
that engaging in arbitration may limit or waive other rights to
action. SB 319 also limits the amount of an arbitration to $7,500
to correspond with the limit of small claims court. MR. BURNETT
said the bill was drafted in response to a constituent complaint,
and is modeled after the Montana code.
MR. BILL MCNALL, an Anchorage attorney specializing in real estate
law, testified that there is a misconception that arbitration is
quick, easy and inexpensive. He said in his experience this is not
the case. MR. MCNALL commented that there are no set standards in
arbitration and SB 319 will bring this to the attention of
consumers and allow them to make a more informed decision about
dispute resolution.
SENATOR PARNELL asked if on page 4, line 24, the term "a neutral"
was used correctly. MR. MCNALL identified this as a term of art and
said it was used correctly.
Number 466
MR. STEVE DEVRIES, an assistant Attorney General for the Department
of Law, testified that he had reviewed the bill and saw no legal
impediments to it. CHAIRMAN TAYLOR asked if it accomplishes its
purpose and MR. DEVRIES said it will go a long way toward the goal
expressed by MR. MCNALL.
SENATOR PARNELL asked if the bill contained a provision relating to
the competence of the arbitrator. MR. BURNETT replied that issue is
not addressed in the bill, as the bill only attempts to inform
people of their rights and responsibilities under arbitration.
Number 485
CHAIRMAN TAYLOR remarked that they may soon find themselves talking
about education, training and certification of arbiters, as
arbitration is becoming much more widespread. MR. BURNETT agreed,
saying attorney's fees in a simple arbitration may considerably
exceed the award.
SENATOR PARNELL moved CSSB 319 (L&C). Without objection, it was so
ordered.
CHAIRMAN TAYLOR mentioned that the next order of business would be
the continuation of the report on the Alaska Public Safety
Information Network (APSIN). He noted that copies of MR.
NORSWORTHY's report were available for anyone who may want one.
Number 538
MR. KENNETH NORSWORTHY, special counsel to the Judiciary Committee,
hoped that all members of the committee had read his report. He
said he was also prepared to discuss additional information he had
come across which was not included in the report. MR. NORSWORTHY
reported that he had reviewed the files of the 63 cases that were
not forwarded to the Troopers for investigation and found some
significant inconsistencies. MR. NORSWORTHY said he would be
willing to provide the committee with this information in an
addendum to the initial report.
CHAIRMAN TAYLOR asked MR. NORSWORTHY what he discovered in
reviewing these 63 cases and MR. NORSWORTHY replied he found it was
difficult to determine why these cases were not pursued with a
criminal investigation, considering some of the cases investigated
seemed no more criminal than other cases that were not. MR.
NORSWORTHY suggested some of the files that were not investigated
further actually appeared more suspicious than others that were,
and were dismissed by a simple note from the employees' superior.
MR. NORSWORTHY gave an example of three questionable accesses to
the APSIN record of Representative Jerry Sanders, one dismissed due
to curiosity, one unexplained yet cleared, and a third that was
reportedly the result of Rep. Sanders' visit to the Palmer
Correctional Facility. Apparently, an e-mail from Del Smith to
Kathy Mather asked for a verification of this as Rep. Sanders had
informed MR. NORSWORTHY that he was in session in Juneau at the
time of the access and couldn't have visited that day. MR.
NORSWORTHY said it is questionable why no further investigation was
done on this case, as it predated the newspaper article that
prompted the other accesses, which were subsequently written off as
"curiosity."
TAPE 98-26, Side B
Number 001
MR. NORSWORTHY said, whether or not this access was due to
curiosity, it is difficult to see why it was not followed up.
CHAIRMAN TAYLOR asked if MR. NORSWORTHY had found any excuse that
was not accepted in the Department of Public Saftey's (DPS)
investigation. CHAIRMAN TAYLOR indicated that a person could have
given any excuse for their unauthorized access, he asked MR.
NORSWORTHY if there was a single incident in which DPS found a
crime. MR. NORSWORTHY replied no; he added that every case had been
closed with a finding of insufficient evidence.
CHAIRMAN TAYLOR remarked that someone had excused this conduct,
whether it was the Attorney General's office, the investigating
trooper or the person who did the criminal screening, and he wants
some explanations. CHAIRMAN TAYLOR said an incident like this
happened before involving Governor Hickel and a man named Thoma,
and in that case there was a public outcry. CHAIRMAN TAYLOR said he
is frustrated since last time this exact thing happened a woman was
fired and the law was changed.
MR. NORSWORTHY detailed other "suspicious" accesses of SENATOR DAVE
DONLEY that were inadequately explained by DPS as a Brady handgun
check. SENATOR DONLEY told MR. NORSWORTHY that he thought he had
been accessed only once, when in fact he had been accessed six
times. MR. NORSWORTHY called Captain Zeger (who had previously
explained the inquiries by saying it was a Brady check) and asked
about these accesses. Captain Zeger said he did not speak with
SENATOR DONLEY and said he had been told by his chief that SENATOR
DONLEY buys a lot of handguns. MR. NORSWORTHY said this is only one
of many troubling inconsistencies between what happened and the
explanations coming forward to justify what happened. CHAIRMAN
TAYLOR commented that since this report has come out he's getting
all kinds of phone calls from people telling him of
interrelationships between people who accessed APSIN and people who
are politically active. MR. NORSWORTHY said informing the
legislators who had accessed them was debated during the
development of the investigative protocol and was eventually
dismissed. MR. NORSWORTHY indicated that an e-mail from Captain
Cassanovas had questioned the efficacy of an investigation in which
this was not done.
CHAIRMAN TAYLOR remarked that it is ludicrous for the police not to
question the victims about the crime. He said this has stalled the
investigation for at least a year and a half, and people are only
now being told who accessed them and are now calling CHAIRMAN
TAYLOR's office with ideas of why these people might have accessed
their files. CHAIRMAN TAYLOR said the protocol developed by the
Troopers and the Assistant Attorneys General with Mr. Guaneli
precluded notification and made it impossible for the legislators
to provide investigators with the information that they wanted to
"put legislators on the spot" for. CHAIRMAN TAYLOR said the whole
investigation was structured to fail, and he wants to hear those
people who made the decisions explain why they excluded all
questions regarding unions and politics, and victim notification.
MR. NORSWORTHY agreed.
MR. NORSWORTHY continued with another example. MR. NORSWORTHY
outlined two APSIN checks of Casey Sullivan, former aide to
Representative John Cowdery. MR. NORSWORTHY called and spoke to
Mr. Sullivan who was unaware that his record had been accessed more
than once. Mr. Sullivan believed he recalled a conversation with
Mr. Otte saying DPS thought the access was due to his serving on
jury duty during that time frame. Mr. Sullivan later talked with
MR. NORSWORTHY and told him he had also declared himself as a
political candidate at about that time. Captain Zeger (APD)
attempted to explain this by saying a case with a suspect named "C.
Sullivan" was being investigated at that time; after that there was
no further investigation into this, according to MR. NORSWORTHY.
MR. NORSWORTHY later asked Captain Zeger for information on the
case, as it was closed, but Captain Zeger did not provide that
information, saying the case involved an allegation of sexual abuse
and other sensitive information that shouldn't be released for only
an APSIN investigation. MR. NORSWORTHY said this characterizes the
entire investigation, during which every access from the Anchorage
Police Department (APD) was deleted from investigation with a
simple note from the deputy chief explaining it away. MR.
NORSWORTHY said this did not happen to similar accesses from other
police departments, which were eventually referred to the criminal
investigation. CHAIRMAN TAYLOR commented that the final result is
the same and no one will get convicted no matter what they've done.
Number 386
MR. NORSWORTHY said he found it significant that no file from the
APD was referred to the criminal investigation, which might have
hampered a person's future, especially in law enforcement, if they
had been labeled a suspect. MR. NORSWORTHY has no proof of
wrongdoing, but suggested that the accesses out of APD, and the
fact that none were referred to the criminal investigation, make
him wonder. CHAIRMAN TAYLOR asked him to pick up where he left off
in his overview of the report.
MR. NORSWORTHY took up the case of Adam Berg, who accessed the
records of Representative Mark Hodgins, among others. CHAIRMAN
TAYLOR interjected that it has come to his attention that Mr. Berg
has significant relationships to people involved in the campaign of
Mr. Hodgins' opponent. MR. NORSWORTHY noted that Mr. Berg had also
accessed the records of Senator Donley.
Number 331
MR. NORSWORTHY stated that Mr. Berg was a dispatcher for the Juneau
Police Department (JPD) in May of 1996, when he accessed the
records of both Representative Hodgins and his opponent, Lorraine
Crawford. Additionally he accessed the records of Representative
Hodgin's daughter, Andrea, explaining the reason he accessed her
records was because they had once worked together. According to
MR. NORSWORTHY, Mr. Berg had already admitted accessing records of
many people he knew whenever he was bored. Again MR. NORSWORTHY
mentioned that though the legislative complaints were the catalyst
of the audit, the investigators tended to steer away from any
admissions of non-political, illegal accesses.
CHAIRMAN TAYLOR commented that it has become very obvious that the
investigators did not want to find anything.
Number 300
SENATOR PARNELL said it appears that this was treated as a breach
of administrative protocol. MR. NORSWORTHY replied that even when
the investigators encountered clear wrongdoing, they avoided it.
SENATOR PARNELL remarked that this led to the investigators
precluding any information about motive, and preordained the
outcome. SENATOR PARNELL noted that he would like to also hear the
other side of this story.
MR. NORSWORTHY stated that Mr. Berg seemed to want to talk about
his case and he freely admitted he had accessed people out of
curiosity. Mr. Berg stated clearly that he did not disseminate this
information for personal gain, indicating to MR. NORSWORTHY that he
knew what to avoid. Mr. Berg stated that he had previously had a
file compiled on Mark Hodgins. MR. NORSWORTHY indicated that after
making these accesses, Mr. Berg quit JPD and went to the Kenai
Peninsula to run Lorraine Crawford's campaign. MR. NORSWORTHY
suggested that the troopers put an exculpatory twist on Mr. Berg's
statements, and shied away from asking him difficult questions. MR.
NORSWORTHY said MR. Berg had admitted he had a motive to do these
checks before he left JPD, and has made other accesses to people,
including some he had been involved in a lawsuit with.
CHAIRMAN TAYLOR interjected that Berg was too stupid to pick up the
cues of the investigating trooper, and his use of APSIN was
obviously for personal benefit.
Number 225
MR. NORSWORTHY spoke of an additional interview in which Mr. Berg
talked about his dislike of Representative Hodgins, and described
a confrontation they had in the Capitol building. Mr. Berg was
asked by the investigating troopers if others had been present at
the time of the accesses; a co-worker was named but never
interviewed by the troopers.
Number 166
MR. NORSWORTHY stated that it is proper investigative technique to
interview people present at the time of the incident in order to
obtain more, potentially incriminating, information.
CHAIRMAN TAYLOR asked how anyone could justify running
Representative Hodgin's daughter and MR. NORSWORTHY replied there
was no justification given nor asked for. CHAIRMAN TAYLOR remarked
that it had just occurred to him that the only way any legislator
found out if he or she had been run was to write a letter to DPS
asking them.
Number 150
MR. NORSWORTHY reported that the investigators found Mr. Berg's
testimony, "not persuasive and highly suspicious" but did not
request additional investigation and prosecution was still
declined. CHAIRMAN TAYLOR commented that Bob Litton was in the
meeting with Mr. Guaneli when the protocol was developed and they
told the troopers there was no crime. MR. NORSWORTHY agreed, and
said at the same time Mr. Berg had been snooping around, Mr.
Hodgins had been readying for the election. Simultaneously, Mr.
Hodgins was involved in a lawsuit with a former business partner.
MR. NORSWORTHY submitted a billing statement from Mr. Hodgins'
former business partner's lawyer, showing his lawyer had billed him
for "tele with Adam re: background and information". MR. NORSWORTHY
said later some negative information about Mr. Hodgins was reported
in the press. MR. NORSWORTHY noted this statement is included in
his report, and suggested that Mr. Berg's case has the most
potential, if appropriately investigated, for successful
prosecution.
Number 47
CHAIRMAN TAYLOR remarked that it couldn't be clearer: the attorney
was billing for talking to Adam Berg. MR. NORSWORTHY said it is one
thing if this individual did this with a political motive; it is
quite another thing if there was a connection to a political
organization that was orchestrating all these cases.
TAPE 98-27, Side A
Number 001
CHAIRMAN TAYLOR asked MR. NORSWORTHY if this appeared to be a
conflict of interest, and MR. NORSWORTHY replied that apparently,
based on circumstantial evidence, this would appear as a conflict
of interest to the average person.
CHAIRMAN TAYLOR remarked that in the Palin/Stambaugh incident, it
is well known that Commissioner Otte, former chief of police in
both Palmer and Anchorage, was a good friend of Mr Stambaugh.
CHAIRMAN TAYLOR said both the Anchorage Police Department and the
Palmer Police Department, as well as Mr. Stambaugh were "cleaned
up" in this investigation, and he is concerned with this apparent
strong conflict of interest.
Number 90
CHAIRMAN TAYLOR suggested that between the perpetrators, the
investigators and those who reviewed the case for prosecution there
exists an apparent serious conflict of interest, especially in
light of the meeting conducted in which these same people
determined that no crime was committed. CHAIRMAN TAYLOR said it is
high time to draft a resolution to call for an independent
prosecutor. CHAIRMAN TAYLOR said he wants to see Mr. Guaneli before
the committee to give some answers before that happens, and said
then we'll see if this Administration has courage enough to clean
up their own act.
MR. NORSWORTHY indicated that both sides of the issue should be
explored, but, since it seems that the Department of Law is
unwilling to prosecute, the law might as well not be there.
CHAIRMAN TAYLOR remarked that DPS promised they would do a thorough
investigation but then told the investigators who and what they
could look at. CHAIRMAN TAYLOR said there were no objective
standards set to determine why some cases would be investigated and
others would not be, which leads one to believe there is a conflict
of interest, similar to the determination of the legislative
auditors that there was a conflict of interest in the handling of
a large statewide fraud perpetrated from Fairbanks.
Number 171
MR. NORSWORTHY agreed, and said another thing that may have come
into play as a reason why DoL and DPS might have been reluctant to
aggressively prosecute these cases was the negative impact it might
have on access to the federal NCIC database.
CHAIRMAN TAYLOR asked MR. NORSWORTHY if he knew if state
investigators had asked the FBI if any state employees had used
APSIN to go into the NCIC database. MR. NORSWORTHY said he had not
seen any documents requesting it, but Commissioner Otte said he had
verbal contact with the FBI and was told that information must come
from a federal audit, and that they were not interested in
conducting one. CHAIRMAN TAYLOR remarked that Mr. Guaneli had
indicated that the FBI had deferred to the state on this issue, but
CHAIRMAN TAYLOR said apparently the computer doesn't work this way.
MR. NORSWORTHY agreed.
CHAIRMAN TAYLOR stated that, because of the failure of the state to
follow through with this, he has contacted the FBI, and will remain
in contact with them until he finds out if any accesses were made
to NCIC. CHAIRMAN TAYLOR said, additionally, he will turn over a
copy of MR. NORSWORTHY's report to the FBI.
CHAIRMAN TAYLOR asked MR. NORSWORTHY if he had any indication from
either Kathy Mather, Del Smith or Ron Otte that all names of
legislators were run, or only those who had returned the letter
they were sent or wrote their own letter to DPS. MR. NORSWORTHY
said he would double check, but believed that Mr. Otte had
testified that all names of legislators had been run; MR.
NORSWORTHY was not sure if they had also run the names of all
candidates in the '96 election. CHAIRMAN TAYLOR said of course the
only reason to do this is to determine if there was a political
motive, and if they won't ask questions about political motive,
there may be no point. CHAIRMAN TAYLOR said he would like a written
statement from Mr. Otte stating who had talked to the FBI regarding
NCIC and who had decided they would not ask the FBI for any hits in
NCIC. MR. NORSWORTHY recalled a draft memo to CHAIRMAN TAYLOR, in
response to his letter, which was faxed around between a few
people, including Diane Shenker, which contained a handwritten note
saying Guaneli recommended avoiding details of the consequences of
NCIC breaches.
Number 308
SENATOR WARD remarked that Diane Shenker had accessed him and he
would like to see the memo and find out why she really accessed
him. He recalled a reporter named Lisa Durma who said "they have a
receipt for anything they put into print." SENATOR WARD said what
the unions and the Democrats are doing is getting the information
from APSIN and make up a receipt for it. MR. NORSWORTHY commented
that he had no proof, but that there are only three ways to find
this kind of information: first, a simple recollection of a crime;
second, to target a person and send people out to every courthouse
in the state to try to "dig up dirt"; or third, to do an APSIN
check then get any information from the source indicated, and
purchase a receipt. MR. NORSWORTHY summarized that a receipt does
not show proof that information came from a legitimate source.
SENATOR WARD stated that a year ago, the Commissioner of DPS said
he would have a report to the Legislature the following day.
SENATOR WARD remarked that he had never heard of "a receipt" used
in this context until Lisa Durma had said it and then when it
occurred again in MR. NORSWORTHY's report.
Number 380
CHAIRMAN TAYLOR asked who exactly Diane Shenker is and MR.
NORSWORTHY replied that she is an APSIN officer. CHAIRMAN TAYLOR
remarked that she was an APSIN officer who was also found editing
a letter from Ron Otte to send to him regarding NCIC and other
questions. CHAIRMAN TAYLOR asked why in the world she, as one of
the violators, would be in the middle of the investigatory process.
MR. NORSWORTHY clarified that nothing he has found has indicated
Ms. Shenker accessed SENATOR WARD's records wrongfully. He did not
want the record to reflect things inaccurately, though he
understood SENATOR WARD's suspicions.
MR. NORSWORTHY stated that Ms. Shenker is a "criminal justice
planner" at DPS and her supervisor, Mr. Ken Bischoff, said her
access of SENATOR WARD's files was clearly within the scope of her
duties. MR. NORSWORTHY said he did not see anything overly
suspicious about this particular case, but added he did not know
everything there was to know about other circumstances that may add
suspicion. MR. NORSWORTHY reported that many of the accesses to
SENATOR WARD's file, since they appeared after the newspaper
article about him, were explained as simple curiosity.
Number 463
MR. NORSWORTHY did note that the audit showed a DMV clerk in Juneau
accessed Representative Joe Ryan's records in January 1996,
approximately two months prior to the negative ad about the "gang
that couldn't shoot straight." MR. NORSWORTHY said this makes this
particular access suspect, and it was not investigated closely
enough, as the clerk admitted she did not routinely access criminal
histories, but might have done it in response to a discrepancy
pointed out by a particular driver. However, according to MR.
NORSWORTHY, Representative Ryan was not in Juneau at that time and
has no idea why anyone would have checked on his driving record.
CHAIRMAN TAYLOR commented his shock to see Ms. Shenker as a party
to the letter written back to him, Ms. Shenker being one of those
people who is supposedly being investigated. MR. NORSWORTHY
suggested she might have been consulted for technical reasons.
Number 508
CHAIRMAN TAYLOR said that he has never received a final report on
this whole business, after being assured in May that there would be
a prompt investigation. MR. NORSWORTHY interjected that when he had
interviewed Commissioner Otte in January, he had expressed some
frustration at the length of time it was taking the Department of
Law to wrap up these cases. CHAIRMAN TAYLOR restated his
frustration that he had received no conclusion and no final report,
only a huge load of material. MR. NORSWORTHY suggested that, after
he had been retained, maybe they thought he would do it.
SENATOR WARD pointed out that he was an ordinary citizen when this
happened, and this was a wrong against ordinary Alaska citizens.
SENATOR WARD said the users had signed an oath to use this system,
and this is a sad state of affairs when the Commissioner has yet to
deliver a final report.
MR. NORSWORTHY said after the first article publicizing his
investigation, he received a flurry of phone calls from citizens
who claimed they had also been victimized. He began to take notes
on these but found he did not have the time to follow up on them.
Number 568
CHAIRMAN TAYLOR indicated that he has been contacted by several
people who knew for a fact they had been run. He said this is
flagrant, casual abuse and it's been going on for years. CHAIRMAN
TAYLOR added that the sad part is there is not enough integrity
within the system to investigate it.
Number 579
MR. NORSWORTHY reported that there had been several accesses to the
records of Representative Scott Ogan, all but one of which had been
explained to his satisfaction. The one access that was questionable
originated from the Wasilla Police department, apparently resulting
from a report by a neighbor (who was also involved in a property
dispute with Rep. Ogan) that Rep. Ogan had been driving
erratically. This incident was reported informally by this neighbor
to another who happened to be a police officer (and was also on the
other side of the land dispute with Ogan), in his home much later.
MR. NORSWORTHY noted that this police officer/neighbor had several
criminal convictions himself, prior to serving on the police force,
and he was shocked that there had been no further investigation.
SENATOR WARD asked about the date of this access to Ogan's files,
noting that Ogan also appeared in the ad about "the gang that
couldn't shoot straight." MR. NORSWORTHY replied that there were
two separate accesses, one in January of 1996 and another in
February 1996. CHAIRMAN TAYLOR mentioned that this access predates
the ad and SENATOR WARD interjected that it also predates a
television ad in which several legislators supported the candidacy
of Ms. Sarah Palin for Wasilla Mayor. MR. NORSWORTHY remarked that
this could be a possible motive for the access. SENATOR WARD
recalled the t.v. ad and said there had been a big controversy
around it, with people thinking the Republicans were trying to take
over the mayorship, which they did he added. CHAIRMAN TAYLOR
remarked that since Representative Ogan did not know who had
accessed him, he couldn't have offered any information to the
investigators. MR. NORSWORTHY said this is another case where it
appeared that the APSIN access had been made at the request of
another person who did not have APSIN authority. The investigating
trooper tried to neutralize this, according to MR. NORSWORTHY, by
asking softening questions leading him to say his neighbor had only
suggested, not requested, he access Ogan. MR. NORSWORTHY believed
the investigation could have turned something up if they had
proceeded differently.
Number 515
SENATOR WARD commented that there were many articles written about
the Republican Delegation's support of the Wasilla Mayoral race and
he would not be surprised if this police officer had connections to
the unions or the Democratic Party.
CHAIRMAN TAYLOR asked MR. NORSWORTHY to come up with a list of
names of people who should be asked to come before the committee to
explain the "strange phenomena" he has encountered. CHAIRMAN TAYLOR
suggested Dean Guaneli and Kathy Mather would be among those
people. CHAIRMAN TAYLOR also stated that he wanted confirmation
that all of the candidates in the 1996 election had been included
in the APSIN audit.
MR. NORSWORTHY stated his belief that if there is the legislative
will, this investigation should go on, and get to the bottom of
this before the end of this session. CHAIRMAN TAYLOR agreed, saying
it would be fascinating to know who had contributed to what
campaign during the election, and how these people related to those
who had made unauthorized APSIN accesses. CHAIRMAN TAYLOR said a
person can always find an excuse for why they ran a name if they
are halfway clever, they wouldn't then have to be spoon-fed by the
Administration that suggests to them they were probably merely
"curious." CHAIRMAN TAYLOR remarked that no one found out some of
these stories were lies because the victims never had a chance to
report that they had not been in Juneau at the DMV, or they had not
been visiting the Palmer jail that day. CHAIRMAN TAYLOR would like
to find out how many of these people who had made these accesses
are closely affiliated with various unions like ASEA, or political
candidates. He wants to find out if there was political and union
involvement and he'd like to find someone with the courage to clean
this thing up, as he's tired of hearing from individual citizens
who have had their privacy rights violated.
Number 461
MR. NORSWORTHY said this reminded him that three or four of the
suspects had their union shop steward with them during their
interview. SENATOR WARD stated that, if in fact there is union
involvement in this, it falls under RICO and will be prosecuted by
the FBI. CHAIRMAN TAYLOR replied that he agreed, but he wished he
could count on that. SENATOR WARD said it was ridiculous that the
citizens of Alaska had to put up with this kind of stonewalling,
when the original request to DPS was very simple and has yet to be
done.
MR. NORSWORTHY projected that a further investigation would take a
substantial sum of money, and the retainer of someone with powers
equivalent to a special prosecutor. SENATOR WARD interjected that
the state has an Attorney General and a Commissioner of Public
Safety and if they don't do it they can be replaced. MR. NORSWORTHY
continued that there had been a letter faxed around DPS dated
4/30/97 which has a note attached (author unknown) that says,
"should we make public the reasons for authorized access?", "define
misuse of computer", and "can we afford" as well as "why believe
disseminated", "what harm" and "special rights vs. less
expectations". Additionally, theses notes read, "can we get into
attack position?" and "are they willing to fund 6-10 new positions
to monitor". MR. NORSWORTHY expects that if this issue is further
debated, funding questions are likely to be a major factor.
CHAIRMAN TAYLOR replied that it has already been, and it has been
fed to Mike Dugan who wrote a nasty, vitriolic article about how he
is on a witch hunt, spending all kinds of money. CHAIRMAN TAYLOR
suggested this fits right in with the "attack mode" brought up in
the notes.
Number 385
SENATOR WARD said he had just received a note saying that Rhodes,
one of the people named in the report had been an aide to SENATOR
ELLIS. SENATOR WARD asked why they were just finding this
information out. SENATOR ELLIS said this has done a disservice to
the public.
MR. NORSWORTHY recalled one more thing he wanted to talk about. He
noted that there had been an implicit admission by DoL and DPS that
the current procedures do not require documentation for every APSIN
access. MR. NORSWORTHY said that the Attorney General had written
him a letter in which he expressed concern that this investigation
might have a chilling effect on law enforcement users who need to
use APSIN to ensure public safety.
Number 358
MR. NORSWORTHY said he noticed that all of the APD captains used
the exact same words to dismiss questionable APSIN inquiries. This
stuck him as odd and showed him that the APD was documenting every
APSIN access voluntarily since this investigation has been
underway. CHAIRMAN TAYLOR remarked that that is the procedure for
NCIC, you can't get in without a reason for access. CHAIRMAN TAYLOR
said all he had requested of the Attorney General was that APSIN do
the same.
SENATOR WARD said it needed to be said that hundreds of state
workers who would never consider violating their agreement are
outraged. He wants it to be clear that "this little crowd of people
who are being protected by the Administration" is a small minority
of "bad apples".
Number 316
MR. NORSWORTHY said another problem was that DPS ignored the idea
that an outside party persuading an APSIN user to make unauthorized
access(es) could be considered hacking and would be criminal. He
said an e-mail from Ms. Mather to Del Smith concerning accesses to
SENATOR WARD's records argued that Lori Otto would not have been
able to access any APSIN records due to the fact she had no User
ID. MR. NORSWORTHY stated that this was naive to think that Lori
Otto, a high official within the Department of Law, could not have
accessed these files just because she did not have a User ID,
especially considering the investigation which showed people
frequently sharing their ID's with others.
CHAIRMAN TAYLOR said there is also the fact that Lori Otto was the
Chief prosecutor in the state at that time and had the entire
police department working for her. CHAIRMAN TAYLOR remarked that at
this same time, SENATOR WARD's file suddenly turned up in the hands
of his opponent. CHAIRMAN TAYLOR suggested that maybe this file
wasn't related to APSIN; maybe this file came out of the Attorney
General's or Anchorage District Attorney's office. CHAIRMAN TAYLOR
said the file appeared later and SENATOR WARD was asked by a member
of the press to sign a waiver to allow them to read his criminal
history. CHAIRMAN TAYLOR said even the D.A.'s notes in the file
were referred to, showing they had something.
MR. NORSWORTHY said it was important to point out that prosecutors
notes wouldn't appear in APSIN, and, due to attorney/client
privilege would never make them accessible to the public, and would
also cause them to be archived separately. MR. NORSWORTHY asked
SENATOR WARD if he was asked about this in a public setting.
SENATOR WARD replied he was, by both Lisa Durma and Channel 7.
Number 231
MR. NORSWORTHY said this indicates the likelihood that someone has
a reason to believe that there was something in the prosecutor's
notes, and demonstrates there was leakage somewhere. CHAIRMAN
TAYLOR asked how anyone would know that there were such notes in a
30 year old file. MR. NORSWORTHY replied it would indicate an
information leak.
SENATOR WARD contended this might be related to the dismissal
of Lori Otto and her subsequent rehire (in a new position) by the
Governor. He asked why this was not investigated further.
Number 197
MR. NORSWORTHY said that lawyers know that prosecutors' notes
involve hearsay and suspicions, not credible evidence and would
never serve any public interest by being revealed. CHAIRMAN TAYLOR
said someone dredged up this file and turned it over to the press,
who had to ask SENATOR WARD for a waiver to use the information as
it was obtained illegally. SENATOR WARD guessed this came from
APSIN thus began the investigation into APSIN abuse. So now, this
committee ends up asking questions about 85 hits on a "secure"
system. CHAIRMAN TAYLOR said privacy no longer exists with the
current level of political corruption, and he feels for the private
citizens caught in the middle of this.
MR. NORSWORTHY said it could be hypothesized that APSIN could be
used in other ways for political purposes that may never even
surface. He also noted that APSIN contains a wealth of information
beyond just criminal convictions, and suggested that simply doing
periodic audits of the names of candidates will not be sufficient
to deter political abuse of the system in the future.
Number 085
CHAIRMAN TAYLOR noted that the Administration has only now put
$600,000 into APSIN to address these problems, even going so far as
to insert an additional screen on top of the files of legislators.
CHAIRMAN TAYLOR characterized this as giving the legislators
"special rights" and stated it is unfair and totally offensive.
SENATOR WARD agreed.
MR. NORSWORTHY commented that citizens don't have fewer rights now,
but actually fewer protections. He stated that the public interest
justifies more scrutiny in this case, since it might have not only
have affected the election, but, in doing so, affected all the
people voting for their representatives.
Number 014
CHAIRMAN TAYLOR reflected on an example in Wrangell where misuse of
APSIN resulted in termination of an employee. He wonders why this
has not happened in this case, where the violations are much more
flagrant, but he suspects there is no one in office with enough
integrity to do it.
TAPE 98-28, Side A
Number 001
MR. NORSWORTHY said it is important to clarify that DoL and DPS
have not taken the position that this "snooping" can be punished by
termination; MR. NORSWORTHY said they are just unwilling to punish
it that way.
CHAIRMAN TAYLOR asked if there was any objective reasons for any
sanctions that were imposed, if MR. NORSWORTHY had seen a list of
sanctions. MR. NORSWORTHY replied that he had seen no coherent list
and CHAIRMAN TAYLOR stated he wanted to see a list detailing the
sanctions imposed in each of these cases, with an explanation of
why they were imposed. MR. NORSWORTHY said this would require a
confidentiality agreement, as the departments will claim these are
personnel records. CHAIRMAN TAYLOR said there was no punishment if
a person's job duties required the use of APSIN and, as a sanction,
had their APSIN privileges suspended. SENATOR WARD interjected that
this was what he was hearing in complaining phone calls from
corrections workers.
Number 100
CHAIRMAN TAYLOR concluded by saying he would like to see a list of
names of people who should be interviewed and a list of questions
to ask in light of the report. He also wanted MR. NORSWORTHY's
recommendations regarding conflict of interest and the need for a
special prosecutor, as he intends to draft a resolution on this
issue and pass it through the process, if possible, or through the
Legislative Council. He thanked MR. NORSWORTHY for all his work and
asked for his ongoing assistance. With no further business to come
before the committee, they were adjourned at 4:55 p.m.
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