Legislature(1995 - 1996)

04/10/1996 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                         April 10, 1996                                        
                           1:30 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
 Senator Al Adams                                                              
 Senator Johnny Ellis                                                          
  MEMBERS ABSENT                                                               
  COMMITTEE CALENDAR                                                           
 HOUSE CS FOR SENATE BILL NO. 321(JUD)                                         
 "An Act relating to incompetency to stand trial."                             
 SENATE CS FOR CS FOR SS FOR HOUSE BILL NO. 104(HES)                           
 "An Act relating to disclosures of information about certain                  
 SENATE BILL NO. 320                                                           
 "An Act increasing the number of superior court judges designated             
 for the Third Judicial District to provide an additional superior             
 court judge at Dillingham."                                                   
 CS FOR HOUSE BILL NO. 311(L&C)                                                
 "An Act relating to the hours a person may be employed in a mine."            
 CS FOR HOUSE JOINT RESOLUTION NO. 52(JUD) am                                  
 Relating to the creation of a new United States Court of Appeals              
 for the Twelfth Circuit.                                                      
  PREVIOUS SENATE COMMITTEE ACTION                                             
 SB 321 - No previous action.                                                  
 HB 104 - See Senate Health, Education & Social Services minutes               
        dated 2/23/96.                                                         
 SB 320 - No previous action.                                                  
 HB 311 - No previous action.                                                  
 HJR 52 - No previous action.                                                  
  WITNESS REGISTER                                                             
 Joe Ambrose, Legislative Staff                                                
 c/o Senator Robin Taylor                                                      
 Alaska State Capitol                                                          
 Juneau, Alaska  99811                                                         
  POSITION STATEMENT:   Testified for the sponsor of SB 321                    
 Laurie Otto                                                                   
 Deputy Attorney General                                                       
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
  POSITION STATEMENT:   Opposed to SB 321                                      
 Derrill Johnson                                                               
 Developmental Disabilities Program                                            
 Dept. of Health & Social Services                                             
 P.O. Box 110620                                                               
 Juneau, AK  99811-0620                                                        
  POSITION STATEMENT:   Opposed to SB 321                                      
 Clynton Nauman                                                                
 General Manager                                                               
 Kennecott Greens Creek Mine Co.                                               
  POSITION STATEMENT:   Supports HB 311                                        
 Wendy Natkong                                                                 
 Medical Coordinator                                                           
 Kennecott Greens Creek Mine Co.                                               
  POSITION STATEMENT:   Supports HB 311                                        
 Bernie Miller                                                                 
 Southeast Conference                                                          
 124 W. 5th St.                                                                
 Juneau, AK  99801                                                             
  POSITION STATEMENT:   Supports HB 311                                        
 Ed Flanagan                                                                   
 Deputy Commissioner                                                           
 Department of Labor                                                           
 1111 W. 8th St.                                                               
 Juneau, AK  99811                                                             
  POSITION STATEMENT:   Opposed to HB 311                                      
 Gary Paxton                                                                   
 Sitka City Manager                                                            
 304 Lake Street                                                               
 Sitka, AK                                                                     
  POSITION STATEMENT:   Supports HB 311                                        
 Keith Perkins                                                                 
 Sitka Assembly Member                                                         
 304 Lake St.                                                                  
 Sitka, AK                                                                     
  POSITION STATEMENT:   Supports HB 311                                        
  ACTION NARRATIVE                                                             
 TAPE 96-34, SIDE A                                                            
 Number 001                                                                    
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 2:00 p.m.  All members were present except Senator Ellis.            
 The first order of business before the committee was SB 321.                  
       SB 321 CRIM DEFENDANT INCOMPETENT TO STAND TRIAL                       
 CHAIRMAN TAYLOR announced SB 321 was introduced as the result of an           
 incident that occurred in his district, and a more recent incident            
 that occurred in Anchorage.  SB 321 provides for the commitment of            
 mentally incompetent defendants.                                              
 JOE AMBROSE, Chief of Staff to Senator Taylor, explained SB 321 was           
 introduced to close a loophole in existing law that prevents the              
 civil commitment of those ruled mentally incompetent to stand trial           
 on criminal charges but still pose a danger to others.  Under                 
 current law, the defendant in a criminal case can be committed for            
 up to two-90 day periods if found incompetent to stand trial.  If,            
 at that point, the defendant is still incompetent, and is unlikely            
 to become competent, he/she must be released from the criminal                
 justice system.  Commitment is then governed by the civil courts.             
 The problem SB 321 is intended to correct is that some incompetent            
 defendants cannot be picked up by the civil commitment procedures             
 because while they may be mentally incompetent for criminal                   
 procedures, they are not mentally ill, as defined under laws                  
 governing civil procedures.  Mental incompetency is determined                
 under the law governing criminal procedures, and is based on a                
 mental disease or defect.  This is a much broader category than               
 mental illness, as defined under the laws governing civil                     
 procedures.  SB 321 changes the definition of mental illness, as it           
 applies to civil commitments, so that incompetent criminal                    
 defendants, who pose a risk to others, can be civilly committed.              
 This change would only apply to those who have already had due                
 process protections under the criminal justice system.  The                   
 Department of Law's fiscal note estimates this bill would apply to            
 one or two cases per year.                                                    
 Number 055                                                                    
 With the committee's permission, an unidentified speaker, referred            
 to as "Jeanne," testified via teleconference.                                 
 JEANNE recounted an incident in which her daughter was sexually               
 molested at a church event by a severely mentally retarded boy with           
 violent tendencies.  This incident was the fourth substantiated               
 case of molestation by the boy.  The boy's family was aware of the            
 incidences yet continued to allow him to attend the church events             
 for children.  The victim's family reported the incident to the               
 Anchorage Police Department and contacted the other three families            
 whose children had been molested by the boy.                                  
 CHAIRMAN TAYLOR asked if the police report resulted in a                      
 prosecution and the defendant was found to be incompetent due to              
 severe mental retardation.                                                    
 JEANNE responded that she tried to get a restraining order on the             
 boy but could not because he is not a family member.  Police                  
 officers talked to the boy and his family and the boy spent two               
 weeks in jail for vandalism and four charges of abuse of a minor              
 child but the charges were dismissed because he is mentally                   
 retarded.  The Constitution prohibits incarceration of mentally               
 retarded people as it is a violation of their Sixth Amendment                 
 rights.  API was not an alternative because the boy is not mentally           
 CHAIRMAN TAYLOR stated this person votes in every election.  JEANNE           
 verified that the boy does vote, his parents discuss the issues               
 with him.  He also buys alcohol, and has held a job with the                  
 Anchorage School District since the mid to late 1980s.                        
 CHAIRMAN TAYLOR clarified the boy held the job since 1989 but was             
 dismissed several weeks ago after the Anchorage School District was           
 informed of the substantiated cases.                                          
 Number 191                                                                    
 LAURIE OTTO, Deputy Attorney General for the Department of Law,               
 noted Chairman Taylor has identified a gap in the criminal justice            
 system that needs to be fixed.  She was informed on Monday that a             
 first degree murderer is about to be released based on a similar              
 gap in the statute.  Although she acknowledged the problem, she did           
 not believe SB 321 will solve the problem for the following reason.           
 Over the past 30 years the system of institutionalization has been            
 shaped by statutes, regulations, the Constitution, case law, and by           
 the annual budgets of the agencies involved.  There are two basic             
 kinds of institutionalization:  civil and criminal.  There is some            
 overlap between those two systems for people who commit crimes:               
 legally insane people who are the responsibility of the Department            
 of Health and Social Services; mentally ill people who are found              
 guilty and are the responsibility of the Department of Corrections;           
 and people who are found to be incompetent to stand trial.  The               
 last group is the subject of SB 321 and the source of the problem             
 that exists in the criminal justice system.  These cases are rare:            
 of the 4,000 felony cases that get reviewed by prosecutors' offices           
 every year, at most there is only a handful that raise legitimate             
 competency issues - only three have been identified in the past               
 three years.  Most people found to be incompetent can become                  
 competent after a short period of time with medication or with                
 training.  The small number of cases in which the defendant is                
 found incompetent to stand trial is often not only because of                 
 mental retardation but also brain damage.  The murderer to be                 
 released also has Alzheimer's Disease.  SB 321 would make these               
 people subject to civil commitment.                                           
 To civilly commit a person, the state must prove to a jury with               
 clear and convincing evidence the person is mentally ill, and be              
 either a danger to themselves or others, or be gravely disabled.              
 The phrase "likely to cause serious harm to self or others" is                
 defined in AS 47.30.915 (10)(b) as "poses a substantial risk of               
 harm to others as manifested by recent behavior causing,                      
 attempting, or threatening harm, and is likely in the near future             
 to cause physical injury, physical abuse, or substantial property             
 damage to another person."  By the time an incompetent defendant              
 reaches the point of civil commitment, one year will most likely              
 have lapsed.  The defendant usually will have spent that time at              
 API or another institutional setting.  The civil commitment                   
 proceedings must be held at intervals of 30, 90 and every 180 days            
 after that.  In such situations the Department of Law has found it            
 impossible to prove that a person is likely to cause serious harm             
 to others based on recent behavior.                                           
 Even if the person can be committed, other statutes allow the                 
 release of the person.  AS 47.36.055 sets out the state's policy              
 that mentally ill persons be held in the least restrictive setting            
 possible which is often the community setting.  AS 47.37.080                  
 requires that a mentally committed person be released if the person           
 in charge of the facility believes that he or she is no longer                
 dangerous.  This occurs without court action or notice to law                 
 enforcement.  To comprehensively address the issue of incompetency,           
 there would have to be many statutes and state policies amended.              
 Those changes would also impact people other than those that need             
 to be targeted.                                                               
 The Criminal Division of the Department of Law believes the problem           
 is that the term "mentally incompetent" is not defined in statute.            
 There are doctors who interpret it very narrowly and those rulings            
 are upheld on appeal.  There are doctors who apply it more                    
 expansively.  DOL believes, for constitutional purposes, if a                 
 person is capable of voting, working, and has a driver's license,             
 that person is competent to stand trial.  If a doctor believes                
 differently, based on no standards, the DOL has no effective means            
 of persuading the court differently.  DOL recommends the statute be           
 amended with a tight, clear definition of mental incompetence.  DOL           
 is researching how other states have dealt with this problem.  The            
 problem with SB 321 is that to give people due process, jury trials           
 must occur over short periods of time, and the defendant must be              
 proved to be dangerous.  That approach is both time consuming and             
 expensive.  DOL is in the process of drafting a new definition.               
 Number 331                                                                    
 DERRILL JOHNSON, Program Administrator for Developmental                      
 Disabilities, stated DHSS believes SB 321 is well intended, but               
 would prefer a long term fix for the problem.  Individuals should             
 suffer the consequences of their actions.  In the developmental               
 disability community, there is a service network that can provide             
 supports for clients and their families.  The better way to tighten           
 the loophole is to find a better way to evaluate who is competent             
 to stand trial.  He offered to provide committee members with                 
 information on the types of support services DHSS offers to                   
 communities and families.                                                     
 CHAIRMAN TAYLOR commented he did not intend for this bill to result           
 in a criminal sanction for a person who is not competent to be                
 embroiled in that system, due to a finding under the Sixth                    
 Amendment.  Instead he was hoping the DHSS would respond with a               
 proposal to accommodate this individual in a secure setting so that           
 the public could be assured that person will not be roaming the               
 community unsupervised.  If he intended to put these people in a              
 penal institution, he would have redefined the definition of mental           
 illness in criminal law.  He asked if the DHSS was requesting a               
 definition change that would lower the standard so that these                 
 people could be tried criminally and incarcerated.                            
 MR. JOHNSON replied the intent would be to place the people in an             
 alternative arrangement with solid community support.  He noted in            
 this particular case, he will be meeting with the family in an                
 attempt to design a system using community support for their son.             
 This approach is based on DHSS' experience over the last five years           
 and has been successful.                                                      
 CHAIRMAN TAYLOR stated the committee intends to move SB 321 out of            
 committee and have the next committee work on proposed amendments.            
 He asked DOL to submit the definition mentioned.                              
 Number 380                                                                    
 SENATOR GREEN asked if DHSS can require a family to participate in            
 its programs before an incident occurs.  She believed there should            
 be a level of responsibility placed on the guardian.                          
 MR. JOHNSON replied DHSS does not have that authority because                 
 developmentally disabled clients are served on a voluntary basis.             
 A guardian cannot force a client to participate either.                       
 DAVID MALTMAN, Director of the Governor's Council on Disabilities             
 and Special Education commented most Council members are parents of           
 developmentally disabled individuals and are concerned for the                
 children and families who have been affected by this incident.                
 However, the sense of outrage must be tempered by the fact that               
 people with limited capacities, particularly people with                      
 developmental disabilities, are no more dangerous to children than            
 anyone else.  There is no evidence that men with mental retardation           
 commit sexual assaults at a higher rate than other men in the                 
 general population, and are actually more likely to be victims of             
 such behavior.  Existing programs deal with difficult clients, and            
 have done a fine job of supervision and monitoring.  Had this                 
 abuser been enrolled, it is unlikely this incident would have                 
 occurred.  There are waiting lists for these programs, however.               
 Committing people to API will not solve the problem.  The Council             
 is very concerned about minimizing risks to the community.  He                
 asked the committee to allow more time to look at what other states           
 are doing, and the services they provide.                                     
 Senator Ellis arrived at 2:40 p.m.                                            
 CHAIRMAN TAYLOR thanked Mr. Maltman and explained it was not his              
 intent to cast dispersions at developmentally disabled people.  He            
 noted Senator Miller and he would like to work on this problem                
 further.  He suggested Mr. Maltman contact the State of Idaho for             
 suggestions and information.                                                  
 MR. MALTMAN added the State of Vermont has a statute that addresses           
 this problem for offenders with mental retardation which he would             
 provide to committee members.                                                 
 Number 454                                                                    
 LYNN STIMLER, representing the ACLU, agreed with Ms. Otto's                   
 testimony.  She was concerned the bill will miss the offenders it             
 is intended to catch because the statute is premised on the                   
 assumption that people can be confined if competency can or will be           
 restored.  She believed that in the committee's rush to pass the              
 bill to the Senate Rules Committee, the bill may target people it             
 was not intended to include.                                                  
 CHAIRMAN TAYLOR asked Ms. Stimler to provide input on the                     
 definition to committee staff.                                                
 Number 479                                                                    
 RICHARD RAINEY, Executive Director of the Alaska Mental Health                
 Board, asked the committee to consider the fact that the bill could           
 create a population new to the mental health system that would                
 require services that are not available.  Those services may come             
 at the expense of existing services.  The system that currently               
 exists, and is envisioned for the future, is the result of a long             
 and sometimes tortuous planning process involving mental health               
 consumers, providers, and state agencies.  API is a critical                  
 element in that system.  If the mission of API is to provide                  
 tertiary care to mentally ill individuals who cannot be treated in            
 their communities, he is concerned this change will involve taking            
 resources from that program.                                                  
 CHAIRMAN TAYLOR asked Mr. Rainey if he agreed that only one or two            
 people per year may fall into this category.  MR. RAINEY replied              
 there is some concern that the population will end up being larger.           
 CHAIRMAN TAYLOR felt the individuals the bill is directed toward              
 are fairly functional, and that small modifications to existing               
 programs may be able to provide a higher level of security.  MR.              
 RAINEY stated he would not be as concerned if those people are not            
 placed at API.                                                                
 DOROTHY PEAVEY, the Executive Director for Mental Health Consumers            
 of Alaska, believes SB 321 would affect mentally ill people                   
 indirectly.  SB 321 was introduced as a hasty response to an                  
 unfortunate situation.  Persons with severe mental retardation with           
 criminal tendencies need constant supervision.  Such supervision              
 can be provided in a psychiatric hospital or in long-term                     
 residential care, however both options are expensive and finite in            
 availability.  Community placement is a viable solution and several           
 agencies have experience serving clients with such histories.  She            
 believed this population and guardians should be held responsible             
 for criminal behavior.  She urged the committee to find a solution            
 that does not include civil commitment and utilization of resources           
 that are already overcommitted.                                               
 SENATOR MILLER moved SB 321 out of committee with individual                  
 recommendations.  Senator Adams objected because he believed the              
 Senate Judiciary Committee should at least define "mental                     
 incompetence" and review the fiscal note from API.                            
 The motion carried with Senators Taylor, Green and Miller voting              
 "yea," and Senators Miller and Ellis voting "nay."                            
             HB 104 DISCLOSURE OF JUVENILE RECORDS                            
 REPRESENTATIVE PETE KOTT, sponsor of HB 104, explained the proposed           
 committee substitute eliminates material added by the Senate HESS             
 committee because it interfered with federal funding.                         
 CHAIRMAN TAYLOR clarified the proposed committee substitute is                
 labelled 276-J Chenoweth, 4/10/96.                                            
 SENATOR MILLER moved the adoption of the proposed committee                   
 substitute in lieu of the original bill.  SENATOR ADAMS objected              
 and asked for verification of the federal funding issue from the              
 Department of Health and Social Services.                                     
 REPRESENTATIVE KOTT explained the bill addresses some of the                  
 juvenile crime problems by allowing for the release of information            
 on juveniles, on request, if the crime committed is classified as             
 a felony if committed by an adult.  In addition, the committee                
 substitute also allows release of the parents' names to ensure                
 proper identification of the juvenile, and to place some                      
 responsibility on the parents for controlling the behavior of their           
 Number 581                                                                    
 DIANE WORLEY, Director of the Division of Family and Youth Services           
 in DHSS, testified she is pleased with the proposed committee                 
 substitute as the previous version of the bill did interfere with             
 $7 million in federal funding.  She expressed concern about                   
 disclosure of juvenile records in general, and the broadness of the           
 disclosure provision in HB 104.  DFYS believes, at this time, some            
 information should be disclosed, but this legislation allows                  
 disclosure at the time of arrest, and does not include any specific           
 ages.  If a minor was found to be innocent at a later date, there             
 is no recourse for publishing that information.  Adolescents make             
 mistakes, but often shape up if they have strong support in their             
 home environment.  This bill could lead to stereotyping, or                   
 identifying adolescents as criminals, when the situation could have           
 been self-correcting.                                                         
 SENATOR ADAMS asked Ms. Worley if a statutory age limit exists.               
 MS. WORLEY was unsure, and added many of the bills circulating                
 contain different age limits.                                                 
 Number 549                                                                    
 LAURIE OTTO, Deputy Attorney General of the Department of Law,                
 explained different statutes contain different age limits, for                
 example juveniles can be finger printed at age 14.  There is no               
 existing statutory provision for disclosure.  The Department of Law           
 also opposes the disclosure of an arrest because no information can           
 be released about the case afterward, according to statute.                   
 SENATOR ELLIS asked whether the names of parents who have                     
 voluntarily emancipated their children would be released.                     
 MS. OTTO replied they would.                                                  
 Number 505                                                                    
 LYNN STIMLER questioned whether Title 4E funds would be lost if               
 arrests are reported, under the current configuration of DFYS.                
 CHAIRMAN TAYLOR responded that is correct.                                    
 MS. STIMLER stated the ACLU would be very concerned about reporting           
 an arrest rather than a conviction.  She asked Representative Kott            
 what the rate of false arrests, or arrests that do not result in              
 convictions, of juveniles are.                                                
 CHAIRMAN TAYLOR intervened, and explained version J is Section 3 of           
 the previous bill.                                                            
 ROGER POPPE, legislative aide to Representative Kott, estimated the           
 number of arrests without convictions is about one percent.  He               
 explained the bill allows the Department of Public Safety to                  
 release the names of juvenile arrests.  Although the sponsor agreed           
 it was unfair to release the arrest information without follow up,            
 DFYS received a determination from the federal government that                
 prohibits information from being released by DFYS or the courts.              
 CHAIRMAN TAYLOR stated that although there may be a lot of contact            
 between police and juveniles, in the majority of cases, a report is           
 made to DFYS who handles the case from that point.                            
 MS. STIMLER emphasized ACLU is concerned about the piecemeal                  
 approach toward the release of juvenile records by the legislature.           
 Many bills are circulating that do not reconcile with each other.             
 If release of material short of a conviction is allowed, there will           
 be a due process problem.  She cautioned that this bill is                    
 premature without the Governor's Task Force recommendations.  She             
 repeated that this bill will give power to an agency that has only            
 been given to the courts in the past.                                         
 CHAIRMAN TAYLOR commented that many other states can release                  
 information, without a threat of loss of federal funds, about a               
 juvenile's arrest and conviction, or non-conviction, because they             
 have separate departments for juveniles with civil concerns and               
 juveniles with criminal concerns.  He stated that approach may be             
 used in the future, and agreed that the state is currently using a            
 piecemeal approach.                                                           
 SENATOR ADAMS removed his objection to the adoption of the                    
 committee substitute, therefore it was so ordered.                            
 SENATOR GREEN moved SCSHB 104(JUD) out of committee with individual           
 recommendations.  SENATOR ADAMS objected.  The motion carried with            
 Senators Taylor, Green and Miller voting "yea," and Senator Adams             
 voting "nay."                                                                 
          HB 311 MINERS:  PAY & MAXIMUM HOURS OF WORK                         
 DOUG ROBERTS, Mayor of Wrangell, stated support for HB 311 as it             
 will provide an employment opportunity for Southeast Alaskans.                
 Kennecott Greens Creek Mining Co. representatives came to Wrangell            
 recently to discuss work opportunities at the mine.  With an                  
 unemployment rate of about 30 percent in Wrangell, that industry              
 can provide much needed jobs.                                                 
        SB 320 NEW SUPERIOR COURT JUDGE FOR DILLINGHAM                        
 CHAIRMAN TAYLOR announced the committee would hear SB 320 at this             
 time to accommodate people listening on the teleconference.                   
 KELLY HUBER, staff to Senator Halford, stated SB 320 was introduced           
 by the Senate Finance Committee to increase the number of Superior            
 Court judges in the Third Judicial District with the intent of                
 locating that position Dillingham.  This issue has been discussed             
 extensively in the House.  The Department of Law supports SB 320 as           
 it will meet the needs of Dillingham and surrounding areas.                   
 LAURIE OTTO informed the committee the Department of Law strongly             
 supports SB 320 and offered to discuss the reasons provided in the            
 letter sent to committee members from the Attorney General.                   
 ART SNOWDEN, Administrative Director of the Judicial Branch, stated           
 if SB 320 is enacted, the Judicial System intends to create a new             
 position in Dillingham, however under the Constitution, a new                 
 position can only be created for the Third Judicial District.  The            
 Court System supports SB 320, as it would provide a judge in the              
 Third District to train magistrates.  Dillingham is a magnet                  
 community for Bethel, Nome, and Kotzebue.  It will also provide               
 relief for Anchorage judges who must travel to those areas.                   
 CHAIRMAN TAYLOR noted, for the record, Senator Lyman Hoffman has              
 submitted a two-page letter to committee members in strong support            
 of SB 320.                                                                    
 REPRESENTATIVE IVAN IVAN also noted his support for the record.               
 SENATOR ADAMS moved SB 320 out of committee with individual                   
 recommendations.  There being no objection, the motion carried.               
          HB 311 MINERS:  PAY & MAXIMUM HOURS OF WORK                         
 CLYNTON NAUMAN, General Manager of the Kennecott Greens Creek Mine            
 on Admiralty Island testified in support of HB 311, which extends             
 the number of hours a person can work underground from eight to               
 ten, at the face.  Greens Creek plans to reopen in the fourth                 
 quarter of 1996, and at that time will have about 250 employees.              
 Greens Creek currently hires 150 employees, 80 percent are                    
 Alaskans. If HB 311 passes, Greens Creek intends to offer jobs to             
 qualified people in Southeast Alaska, subsidize transportation                
 costs from their home community to Admiralty Island where they                
 would be housed for possibly 20 days, and transport them back to              
 their communities for 10 days.  This plan would avoid a housing               
 problem in Juneau, and allow people from Southeast to work without            
 relocating their families.  If HB 311 does not pass, and Greens               
 Creek is locked into eight hour underground shifts, it will have to           
 run three shifts per day which will change the economics of the               
 MR. NAUMAN explained Greens Creek is requesting a change to ten               
 hours in statute, rather than using the variance method proposed by           
 the Department of Labor, because to implement the Southeast hire              
 plan, Greens Creek will need to construct facilities with a cost of           
 several million dollars.  Greens Creek needs the certainty of a               
 statute in order to amortize that investment and needs the                    
 stability and two-shift rotation in order to provide sustained,               
 lower operating costs that will eventually provide more job                   
 security for employees by allowing Greens Creek to withstand                  
 volatility in a commodities market and in the global marketplace.             
 A permit approach is less certain, and contains vague requirements,           
 such as whether changing the eight hour underground work day to ten           
 hours is in the best interest of the workers of the state.  That              
 will be difficult to determine before the workers are doing it.               
 Greens Creek does not believe that standard is objective.  Greens             
 Creek is also uncertain about the length of the permit and the                
 possibility of revocation.   Permit regulations do not exist at               
 this time, yet Greens Creek is ready to hire at this time.  Greens            
 Creek has spent considerable time with Commissioner Cashen trying             
 to find common ground and appreciates the effort he has made, but             
 needs the certainty of a statute to make the necessary investments.           
 A ten-hour work day is safe, and promotes an opportunity for                  
 Alaskan jobs for qualified people, reduces the economic exposure of           
 Greens Creek to inevitable fluctuations in the market, and allows             
 it to be competitive on a global basis.                                       
 Number 263                                                                    
 WENDY NATKONG, representing the workforce at Greens Creek Mine,               
 submitted a letter to the editor she wrote to the Juneau Empire               
 which was endorsed by 34 underground workers at the Greens Creek              
 Mine, and a petition signed by 128 Greens Creek employees.  As the            
 medical coordinator, she does not believe safety is an issue with             
 this bill.  The original restriction on hours worked at the face of           
 a mine was legislated in 1913; working conditions have improved               
 substantially since that time.  Current Greens Creek workers only             
 spend about six hours at the face of the mine.  Greens Creek                  
 employees support this measure because it will decrease the amount            
 of commuting time to Admiralty, will allow for more time with their           
 families, and for more productive shifts.  The employees understand           
 this schedule will not be dictated; that will be allowed to present           
 proposals for the schedule to the management.                                 
 BERNIE MILLER, Executive Director of the Southeast Conference,                
 testified in support of HB 311 because it will make it easier for             
 mining companies in Southeast Alaska to hire local residents.  The            
 economy in Southeast Alaska has changed dramatically in the last              
 few years, and further changes may occur in the immediate future.             
 The visitor industry has grown steadily, the timber industry has              
 contracted significantly, and the fishing industry is confronted by           
 new challenges daily.  If mining companies are afforded the                   
 conditions they need to run a camp-type operation, workers will be            
 able to commute from where they live now.  More jobs should go to             
 Southeasterners as a result which could be critical to the well               
 being of communities in Southeast if further economic dislocations            
 occur.  For the Southeast Conference, the bottom line is high                 
 paying, full-time, private sector jobs.  The Conference has no                
 preference with respect to whether the relief mining companies need           
 comes in statute or regulation, so long as companies operating in             
 Southeast Alaska can hire people who live here.                               
 Number 189                                                                    
 ED FLANAGAN, Deputy Commissioner of the Department of Labor, stated           
 DOL supports the concept of allowing a ten-hour work day.                     
 Commissioner Cashen has met with all of the mining interests that             
 are proposing projects in the area and is personally interested in            
 mining, however believes this legislation to be special interest              
 because it meets the concerns of one company, however valid,                  
 despite the fact that those concerns can be met under an acceptable           
 alternative.  The variance procedure is not a permit: variances are           
 routinely granted under Title 18, Chapter 60, for all OSHA                    
 regulations.  For example, OSHA regulations ban night blasting,               
 which would be a critical problem in Prudhoe Bay in the winter,               
 therefore DOL grants a variance.                                              
 MR. FLANAGAN continued.  If HB 311 is enacted, this change will not           
 only apply to Greens Creek, it will apply to every mine in the                
 state.  The law passed in 1913 may be old but has stood the state             
 in good stead all of this time.  In this community alone, there               
 were three fatalities since 1989 in other mines in the development            
 phase.  Mining is a hazardous industry, however responsible                   
 companies can allow for safety to ensure that fatigue is not a                
 factor.  The Greens Creek camp is not a done deal.  In previous               
 testimony, Mr. Nauman stated his workers spend a 12 hour day to do            
 5.7 hours of work at the face.  Those workers could be working up             
 to 8 hours at the face at this time.  If Greens Creek does not put            
 in its camp, the workers will be putting in a 16 hour day.  The               
 variance procedure is responsive, and although it is time consuming           
 on occasion, the Commissioner could issue an interim order ex parte           
 and grant the variance pending resolution of the formal variance              
 MR. FLANAGAN stated DOL commends Green Creek for trying to hire               
 Southeast residents, however repeated the variance procedure can              
 address Greens Creek's concerns.   He was unaware of any variances            
 revoked by DOL.  He thanked the committee for their time.                     
 Number 103                                                                    
 GARY PAXTON, Sitka City Manager, testified via teleconference.                
 Greens Creek representatives recently came to Sitka for a two-hour            
 briefing on its hiring plan.  The meeting had a substantial                   
 turnout.  The City and Borough of Sitka supports HB 311.                      
 KEITH PERKINS, Sitka Assembly Member, voiced support for HB 311.              
 Many people in Sitka are looking for work as Sitka has had a soft             
 landing but its economy has finally hit bottom.  The potential for            
 high paying blue collar jobs is important for this reason.                    
 JENNIFER TENNY, testifying from Ketchikan, commented her husband              
 was laid off as a logger, and recently became employed by Greens              
 Creek Mine.  HB 311 would allow her family to continue to work and            
 live in Southeast Alaska.  Because of the price and scarcity of               
 housing in Juneau, she is not able to move her family.  If he could           
 work 20 days on and 10 off, the family could remain where they are.           
 Her husband worked in two mines in Montana, one an underground                
 mine.  In both mines, he worked ten hour shifts, and sometimes 12             
 hours.  He also worked in the sawmill industry with ten hour                  
 shifts.  In 17 years of working full-time, he has never had a time-           
 loss accident.  Safety lies in the environmental and attitude that            
 both the employee and employer must participate in.  If a company             
 spends time and resources in making a workplace safe, conditions              
 will be as safe as possible.                                                  
 TAPE 96-35, SIDE A                                                            
 Number 000                                                                    
 MS. TENNY did not believe conditions are any more dangerous in a              
 mine than they are in a sawmill, and questioned whether the 1913              
 was a special interest law to begin with.                                     
 SENATOR GREEN moved CSHB 311(JUD) out of committee with individual            
 recommendations.  There being no objection, the motion carried.               
       HJR 52 CIRCUIT COURT OF APPEALS FOR 12TH CIRCUIT                       
 SENATOR ADAMS moved to remove lines 13-16 of page 2, because he did           
 not believe specific cases should be cited in the resolution unless           
 the legislature is willing to pass a subsistence bill.  Removing              
 those lines will not harm the legislation.                                    
 There being objection to the motion, a roll call vote was taken               
 with Senators Miller, Green and Taylor voting "yea," and Senators             
 Ellis and Adams voting "nay."  The motion failed.                             
 SENATOR MILLER moved CSHJR 52(JUD)am out of committee with                    
 individual recommendations.  There being no objection, the motion             
 CHAIRMAN TAYLOR adjourned the meeting at 3:35 p.m.                            

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