02/18/2004 08:13 AM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 18, 2004
8:13 a.m.
TAPE(S) 04-6
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 288
"An Act relating to certain determinations concerning placement
of a child in emergency custody and temporary placement hearings
in child-in-need-of-aid proceedings; and providing for an
effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 252(STA)
"An Act relating to the terms and duties of the members of the
State Board of Registration for Architects, Engineers and Land
Surveyors."
HEARD AND HELD
SENATE BILL NO. 217
"An Act relating to genetic privacy; and amending Rule 82,
Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of
Appellate Procedure."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 288
SHORT TITLE: EMERGENCY CHILD CUSTODY PLACEMENT
SPONSOR(s): SENATOR(s) GREEN
02/02/04 (S) READ THE FIRST TIME - REFERRALS
02/02/04 (S) HES, JUD
02/09/04 (S) HES AT 1:30 PM BUTROVICH 205
02/09/04 (S) Moved CSSB 288(HES) Out of Committee
02/09/04 (S) MINUTE(HES)
02/11/04 (S) HES RPT CS 3DP SAME TITLE
02/11/04 (S) DP: DYSON, GREEN, WILKEN
02/11/04 (S) FIN REFERRAL ADDED AFTER JUD
02/18/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 252
SHORT TITLE: OCC LICENSING: TERMS OF BD & CONT. EDUC
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE
04/08/03 (H) READ THE FIRST TIME - REFERRALS
04/08/03 (H) L&C, STA
05/02/03 (H) L&C AT 3:15 PM CAPITOL 17
05/02/03 (H) Moved CSHB 252(L&C) Out of Committee
05/02/03 (H) MINUTE(L&C)
05/05/03 (H) L&C RPT CS(L&C) NT 4DP
05/05/03 (H) DP: LYNN, DAHLSTROM, ROKEBERG, ANDERSON
05/07/03 (H) STA AT 8:00 AM CAPITOL 102
05/07/03 (H) Moved CSHB 252(STA) Out of Committee
05/07/03 (H) MINUTE(STA)
05/08/03 (H) STA RPT CS(STA) NT 4DP 1NR
05/08/03 (H) DP: DAHLSTROM, LYNN, SEATON, WEYHRAUCH;
05/08/03 (H) NR: BERKOWITZ
05/15/03 (H) TRANSMITTED TO (S)
05/15/03 (H) VERSION: CSHB 252(STA)
05/16/03 (S) READ THE FIRST TIME - REFERRALS
05/16/03 (S) L&C, JUD
05/19/03 (S) L&C RPT 2DP 1NR
05/19/03 (S) DP: SEEKINS, STEVENS G; NR: FRENCH
05/19/03 (S) L&C AT 8:00 AM BELTZ 211
05/19/03 (S) Moved SCS(L&C) Out of Committee
05/19/03 (S) MINUTE(L&C)
02/18/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 217
SHORT TITLE: GENETIC PRIVACY
SPONSOR(s): SENATOR(s) OLSON
05/09/03 (S) READ THE FIRST TIME - REFERRALS
05/09/03 (S) HES, JUD
01/28/04 (S) HES AT 1:30 PM BUTROVICH 205
01/28/04 (S) Moved CSSB 217 (HES) Out of Committee
01/28/04 (S) MINUTE(HES)
01/30/04 (S) HES RPT CS 1DP 1NR 2AM NEW TITLE
01/30/04 (S) DP: DYSON; NR: GUESS;
01/30/04 (S) AM: GREEN, WILKEN
02/06/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/06/04 (S) Heard & Held
02/06/04 (S) MINUTE(JUD)
02/18/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Ms. Jacqueline Tupou
Staff to Senator Green
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 288 for the sponsor
Joanne Gibbens
Program Administrator
Office of Children's Services
Department of Health and Social Services
130 Seward St Ste 406
Juneau AK 99811-0630
POSITION STATEMENT: Answered questions about SB 288
Mr. Vennie Nemecek
Assistant Attorney General
Department of Law
th
1031 W 4
Anchorage, AK
POSITION STATEMENT: Answered questions about SB 288
Mr. Heath Hilyard
Staff to Representative Lesil McGuire
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 252 for the sponsor
Mr. Sam Kito III
Alaska Professional Design Council
POSITION STATEMENT: Supports Version Q of HB 252
Mr. Paul Whipple
Alaska Professional Design Council
POSITION STATEMENT: Supports Version Q of HB 252
Dr. Robert Miller, Chair
Association of Engineers and Licensed Surveyors
POSITION STATEMENT: Supports Version Q of HB 252
ACTION NARRATIVE
TAPE 04-6, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:13 a.m. Senators Ellis, French
and Chair Seekins were present. The first order of business to
come before the committee was SB 288.
SB 288-EMERGENCY CHILD CUSTODY PLACEMENT
MS. JACQUELINE TUPOU, staff to Senator Green, sponsor, explained
to members that current law provides that the court must
determine within 48 hours of removing a child from the home
whether continued placement in the home is contrary to the
welfare of the child. However, judges use varied language when
making that determination. SB 288 says that judges must
specifically state that it is contrary to the welfare of the
child to remain in the home. That language is Title IV-E
compliant and will result in an increase of Title IV-E funding
of $500,000 in FY 05.
MS. JOANNE GIBBENS, Program Administrator for the Office of
Children's Services, Department of Health and Social Services
(DHSS), affirmed that SB 288 requires the court to make a
specific judicial determination at the very first hearing when
emergency custody of a child is taken. He explained that the
federal purpose for this requirement is to protect the rights of
parents and children by ensuring that states are not removing
children unnecessarily. The federal government ties funding to
this requirement. SB 288 codifies what should be and, in most
cases, is current practice. The purpose of the bill is simply to
make sure the court enters findings that are already required by
federal law. It does not change the standards used by the court
to make out of home placement decisions.
CHAIR SEEKINS announced that Senators Therriault and Ogan had
joined the committee.
SENATOR ELLIS asked why the state is not complying with the
federal law now.
MS. GIBBENS said ideally this would be happening in every first
court hearing, but it does not. SB 288 is a trigger to remind
judges of this requirement. It also aligns Alaska statute with
the federal requirement.
SENATOR ELLIS noted that Senator Green has expressed concern in
the past about depending on receipt of federal funds and the
possible need to use state funds if the federal funds are cut.
He noted with the huge federal deficit, there may be cutbacks in
the future. He asked if she has any concerns about accepting
these federal funds.
CHAIR SEEKINS said he would expect Senator Green to defend her
own history.
MS. TUPOU said she does believe this is a good program and not
only will this determination make a difference for Title IV-E
funds, it will make a difference in the child's entire placement
in the program, i.e., with adoption subsidies. She added that
many times the court will grant a continuance if the parents
cannot be found, so no language is put on the record at the
first hearing. SB 288 will require the court to tighten up the
language.
SENATOR ELLIS asked Ms. Tupou if she believes that accepting the
federal funds would benefit Alaska.
MS. TUPOU said in this situation, where children are in such
dire need that they need to be removed from the home, the state
should use the resources that are available.
SENATOR SEEKINS said he sees this bill as accomplishing two
purposes. First, it brings Alaska statute into compliance with
federal law, which could be the primary intent. Second, it could
assist in obtaining federal funds.
MS. TUPOU agreed.
SENATOR FRENCH asked Ms. Gibbens what happens if the judge does
not have enough information at the first hearing to make a
finding.
MS. GIBBENS said a social worker might file a petition with the
court at the first hearing and the parents are not present and
cannot respond to the petition. In many of those cases, the
judge will order a continuance. In that case, the judge may say
that based on the evidence available at that time, the child
should remain in an out of home placement until the continuance
hearing. At the next hearing, the judge will make another
hearing.
MS. TUPOU informed members that she distributed a copy of a
response from Assistant Attorney General Nemecek to Senator
Green that answered three questions. She noted that the second
response directly relates to Senator French's question. She said
Senator Green was very concerned about usurping due process
rights and would be agreeable to an amendment to change the
words "shall determine" to "shall make a preliminary
determination" to emphasize the transitory nature of the first
hearing.
She then pointed out the first answer in Mr. Nemecek's response
pertains to the word, "emergency" on page 1, line 14 of the bill
("remains in the emergency custody of the department"). She was
told that word was originally included because it was required
for federal compliance but that is incorrect and is actually
legally confusing. She said Senator Green would also be
agreeable to removing that word.
SENATOR FRENCH pointed out the word "after" on page 1, line 14,
on version A, differs from the word "at" used in the DHSS
letter. He questioned whether the word "at" is more appropriate
to emphasize the fact that you want the judge to make the
determination now not after the hearing.
MS. TUPOU explained that the revisor switched the words
accidentally but that was corrected in version H.
CHAIR SEEKINS called an at-ease and, upon reconvening, clarified
that version H, the Senate Health, Education, and Social
Services Committee version, was before the committee.
SENATOR THERRIAULT moved to adopt CSSB 288(HES) as the working
document before the committee.
CHAIR SEEKINS announced that without objection, the motion
carried and noted the HES version contains the word "at".
SENATOR OGAN pointed out that the committee referrals on version
A and version H are different.
CHAIR SEEKINS affirmed that SB 288 picked up a Senate Finance
Committee referral. He then closed public testimony, as no one
else wished to testify.
8:19 a.m.
CHAIR SEEKINS asked Ms. Tupou to clarify the amendments she
suggested.
MS. TUPOU told members the first conceptual amendment [Amendment
1] would be to remove the word "emergency" on line 14, page 1,
where it reads:
...remains in the emergency custody of the department.
The second amendment [Amendment 2] is to change the language on
line 1 of page 2 to read:
The judge shall make a preliminary determination
SENATOR FRENCH asked if the second change will make a big
difference.
MS. TUPOU said, according to Mr. Nemecek's response, it will
not.
SENATOR FRENCH said the question of what is contrary to the
welfare of the child would come up in every hearing conducted in
the course of the placement. He said he would not insist on that
language because every finding is preliminary and never final.
He maintained that the change is only a matter of housekeeping
and not a change to procedure.
MS. TUPOU said that is correct and referred to Mr. Nemecek's
response to question 3, which states, "This does not alter
current legal standards for those children."
SENATOR FRENCH asked if it will make any changes to legal
procedure.
MS. TUPOU said not that she is aware of.
SENATOR OGAN referred to the removal of the probable cause
language in Section 1 and asked, "...why is having that probable
cause language a problem in existing law and is there a probable
cause finding for removing a child that's required under due
process?"
MS. TUPOU responded the probable cause determination is
determined in a temporary custody hearing. Section 1 refers to
an instance of a continuance, during which there is a probable
cause finding. If the hearing is not a continuance, the
temporary custody hearing will take place simultaneously.
SENATOR OGAN questioned why that language needs to be removed
and what problem will be fixed.
SENATOR THERRIAULT clarified that the language was removed from
subsection (d) but placed in subsection (e) as the drafter felt
that to be the more appropriate placement, so nothing will be
lost.
CHAIR SEEKINS entertained a motion to remove the word
"emergency" on page 1, line 14.
SENATOR THERRIAULT asked whether there is any significance to
the term "emergency custody" versus just "custody."
MS. TUPOU deferred to Mr. Nemecek.
MR. VENNIE NEMECEK, Assistant Attorney General, Department of
Law, explained that the problem with using the word "emergency"
is that generally that refers to both an assumption of legal and
physical custody. The intent of that sentence is to refer to
legal custody because the physical placement is dealt with in
the subsequent sentence. He recommended removing the word
"emergency" because it confuses the matter.
SENATOR THERRIAULT asked which is clearer in the legal world.
MR. NEMECEK said in his experience, it will not make a
difference.
CHAIR SEEKINS asked if by eliminating the modifier "emergency"
or "temporary," the language will say whenever, at this point
during a continuance, that child will remain in the custody,
whatever type that may be, and that will cover all bases.
MR. NEMECEK said it does and explained that in general, when
custody is viewed from AS 47.10, it refers to legal custody.
SENATOR FRENCH pointed out this is about a temporary custody
hearing yet that phrase is used the least in the two
subsections. He believes replacing the word "emergency" with the
word "temporary" might ease the concerns of the parents whose
child was taken away and make the language more consistent. He
so moved.
CHAIR SEEKINS asked Mr. Nemecek and Ms. Tupou if that solution
would satisfy their concern.
MR. NEMECEK and MS. TUPOU said it would.
SENATOR FRENCH repeated his motion to replace the word
"emergency" with the word "temporary" on page 1, line 14.
CHAIR SEEKINS announced that the motion carried without
objection. He then noted that with no further discussion, he
would hold the bill for a second hearing and announced an at-
ease.
CSHB 252(STA)- OCC LICENSING: TERMS OF BD & CONT. EDUC
The committee took up CSHB 252(STA).
CHAIR SEEKINS announced that the bill sponsor provided the
committee with a draft committee substitute, version Q.
SENATOR THERRIAULT moved to adopt version Q as the working
document before the committee.
CHAIR SEEKINS announced that without objection, the motion
carried.
MR. HEATH HILYARD, staff to Representative Lesil McGuire,
sponsor, informed members that version Q makes one substantial
policy change over the previous version. He noted he would
review the changes in version Q but that Mr. Sam Kito and
various members of the Architects, Engineers and Land Surveyors
(AELS) Board were available to answer specific questions.
MR. HILYARD told members that Representative McGuire sponsored
HB 252 at the request of the AELS board. Version Q does three
things.
First, it modifies existing statutory language with regard to
board members who may serve partial terms. Currently, if a
board member serves any portion of a remaining term, that
service constitutes a full 4-year term. This change will allow a
board member filling a partial term of less than 2 years to also
serve up to two full additional terms or 8 years. The amendment
offered in the Senate Labor and Commerce Committee would clarify
that the change in term limits would only apply to this board.
Second, version Q offers the AELS board statutory authority to
adopt regulations concerning continuing education. A Legislative
Budget and Audit (LBA) Committee audit, conducted in October of
2003, recommended that the AELS board be given this authority to
help implement and maintain high standards. The AELS board will
work closely with all relevant professional societies before
developing any programs.
Third, the AELS board requested that AS 39.25.120(c) be amended
to include the executive secretary of the AELS as the principal
executive officer of the board under partially exempt service.
SENATOR FRENCH asked if the current principal executive officer
of the AELS is now classified as partially exempt.
MR. SAM KITO III, representing the Alaska Professional Design
Council (APDC), explained that currently, the board
administrator is a partially exempt position and, through an
audit last summer, the board learned it did not have the
statutory authority to maintain partially exempt status so the
Division of Personnel is proposing to convert that position to a
classified one. This effort is to maintain the partially exempt
status.
SENATOR FRENCH surmised that this would give the APDC the
statutory authority to retain the partially exempt
classification for that position; otherwise, there has been a
push to change the classification to classified.
MR. KITO said that is correct. He then informed members that the
APDC supports version Q.
MR. PAUL WHIPPLE, representing the Alaska Professional Design
Council and the Alaska Professional Land Surveyors, stated
support for version Q.
SENATOR THERRIAULT commented that having the power to adopt
continuing education standards is often quite contentious. He
asked Mr. Whipple to review that issue.
MR. WHIPPLE said the APLS has fought since the mid 1980s to
require continuing education to maintain licensure, however some
of the associated professions have been reticent to make that a
requirement. He said his understanding is that the board of one
of the associated memberships adopted a resolution to require
continuing education. The American Institute of Architects
already have a mandatory continuing education for maintaining
membership so the topic is not as contentious as it used to be.
CHAIR SEEKINS asked, "When you talk about the board may adopt
regulations to carry out the purpose of the chapter, including
regulations establishing continuing education requirements for
the persons regulated, how do you come up with a consensus as to
just what those continuing education requirements should be?"
MR. WHIPPLE said the national organizations have been working on
continuing education programs. Currently, 26 states require
continuing education to maintain licensure. The process for
adopting continuing education regulations is a joint effort
between the AELS board and the representative societies.
CHAIR SEEKINS responded that gives total power to that board. He
asked if the legislation contains a cross reference to national
standards or building a consensus among the different members.
MR. WHIPPLE was unable to answer that question.
CHAIR SEEKINS said he has no problem with requiring continuing
education, but if he was a land surveyor, he would want to know
what they were. He questioned whether they could be used as a
tool to limit competition.
MR. WHIPPLE said a national standard for the National Society of
Professional Surveyors in association with the American Congress
of Surveyors and Mapping developed continuing education. That
national organization represents well over 20,000 licensed
practitioners and worked with individual states to develop
standards. The Alaska ASPLS did develop some draft continuing
education requirements for surveyors that are not on record yet.
It also worked with AELS and the Alaska section of ACSM to
develop those standards.
CHAIR SEEKINS said his only concern is how high the standard can
be for the regulations this board can adopt and whether the
intent is to establish professionalism or could they be used to
limit competition.
MR. WHIPPLE said that has been a concern of every state. He
added:
It's the old guild method where they're eliminating
any kind of competition. Unless you're a member of the
guild, you can't practice and you write up the
standards so that nobody else can practice but that's
just not the case. There is a real need to protect the
public by ensuring that the practitioners are current
in regulation and are current in modern technologies
that have been developed.
CHAIR SEEKINS said he was just wondering if there was an upper
limit on what the board could do in terms of being able to
exceed the national standard. He said he did not see the need to
hold the bill in committee if the intent of the measure is
basically housekeeping.
SENATOR THERRIAULT asked for a chance to review the discussion
in the audit before the bill leaves the committee.
CHAIR SEEKINS agreed to hold the bill in committee and took more
public testimony.
DR. ROBERT MILLER, Chair of the AELS board, said he appreciates
Chair Seekins' concern about the regulations for continuing
education being an obstacle to the practice of any profession.
He offered that the board, over the last 5 or 6 years, has
increased other education standards in terms of professional
degrees for both engineers and land surveyors. The new standards
are much more burdensome than the continuing education
requirements. When the board decided to pursue the matter, it
was at the instigation of the two land surveying members of the
board. That effort was reinforced by a legislative audit that
recommended the board consider mandatory continuing education.
He believes all of the conscientious practitioners support the
idea; however, some would agree it should not be burdensome. The
board drafted regulations and submitted them to the Attorney
General's Office, but learned it did not have the statutory
authority to write such regulations. The board would like to
implement that authority over a long period of time. It could do
so initially just for the land surveyors and, although that
might sound discriminatory, the other professions regulated by
the board require degrees. Many land surveyors are self-taught
or learn on the job.
CHAIR SEEKINS said he was not worried about the requirements
being burdensome but unnecessarily burdensome. He questions
where that level is in terms of a quantitative analysis.
DR. MILLER then asked to speak to the issue of classification of
the administrative position and said the board very much feels
it is important that the executive administrator position be
partially exempt. That position is not only a civil servant but
also a servant to the profession and the public. A partially
exempt classification would allow the board a certain amount of
discretion that would be beneficial. The executive administrator
is the presence of the board because no board member is on
constant call. The board believes it is well served by the
executive administrator. He pointed out the title is also
referred to as an executive secretary and executive officer,
although the board refers to the position as an executive
administrator. He asked that the title be made consistent in the
legislation and changed to "executive administrator."
MR. HILYARD commented that the sponsor has no opinion on the
title of the position.
MR. KITO stated support for Dr. Miller's comments.
SENATOR OGAN questioned why the board term will be changed for
this board and no other.
MR. HILYARD explained that his understanding is that in the
past, the AELS board in particular has had difficulty filling
those positions.
DR. MILLER added that the purpose for the requested change is
that the AELS regulates four different professions. The learning
curve for board members is sharper than for some of the other
boards. Some board members have felt inadequately prepared to
deal with the issues after one or two years. Extending the term
a person can serve will help the board capture more expertise.
He noted that some states have no term limits at all, which he
was not suggesting, but said that the AELS has had board
vacancies for considerable periods of time. Therefore, being
able to keep members for two full terms would be helpful.
SENATOR OGAN asked if any board member would be directly
affected by this change.
DR. MILLER said perhaps, but the person would have to be
reappointed by the Governor and approved by the Legislature.
CHAIR SEEKINS asked that the sponsor or her representative
prepare an amendment to address the executive administrator
position for the committee at the next hearing.
MR. HILYARD agreed to do so.
CHAIR SEEKINS announced that he would hold the bill in committee
and adjourned the meeting at 8:56 a.m.
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