Legislature(2003 - 2004)

03/19/2003 01:32 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 19, 2003                                                                                         
                           1:32 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Ralph Seekins, Chair                                                                                                    
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
Senator Hollis French                                                                                                           
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Scott Ogan, Vice Chair                                                                                                  
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 9                                                                                                               
"An Act relating to the evaluation and cleanup of sites where                                                                   
certain controlled substances may have been manufactured or                                                                     
stored; and providing for an effective date."                                                                                   
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 45                                                                                                              
"An Act relating to the Legislative Budget and Audit Committee."                                                                
     MOVED CSSB 45(JUD) OUT OF COMMITTEE                                                                                        
                                                                                                                                
SENATE JOINT RESOLUTION NO. 3                                                                                                   
Proposing amendments to the Constitution of the State of Alaska                                                                 
relating to an appropriation limit and a spending limit.                                                                        
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 2                                                                                                               
"An Act relating to recovery of civil damages from the parents                                                                  
or legal guardian of a minor; and providing for an effective                                                                    
date."                                                                                                                          
     HEARD AND HELD                                                                                                             
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
SB 9 - See State Affairs minutes dated 2/11/03                                                                                  
SB 45 - See Judiciary minutes dated 3/12/03                                                                                     
SB 2 - See HESS minutes dated 2/24/03 and Judiciary minutes                                                                     
     dated 3/17/03                                                                                                              
SJR 3 - No previous action to record.                                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Mr. Tim Biggane                                                                                                                 
Fairbanks North Star Borough                                                                                                    
PO Box 71267                                                                                                                    
Fairbanks, Alaska 99707                                                                                                         
POSITION STATEMENT:  Supports SB 9                                                                                            
                                                                                                                                
Sgt. Ronald Wall                                                                                                                
Alaska State Troopers                                                                                                           
Department of Public Safety                                                                                                     
PO Box 111200                                                                                                                   
Juneau, AK  99811-1200                                                                                                          
POSITION STATEMENT:  Supports SB 9                                                                                            
                                                                                                                                
Elise Hsieh                                                                                                                     
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Answered questions about SB 9                                                                            
                                                                                                                                
Larry Dietrick                                                                                                                  
Department of Environmental Conservation                                                                                        
410 Willoughby                                                                                                                  
Juneau, AK 99801-1795                                                                                                           
POSITION STATEMENT:  Answered questions about SB 9                                                                            
                                                                                                                                
Brad Thompson                                                                                                                   
Department of Administration                                                                                                    
PO Box 110200                                                                                                                   
Juneau, AK  99811-0200                                                                                                          
POSITION STATEMENT:  Answered questions about SB 9                                                                            
                                                                                                                                
Senator Lyda Green                                                                                                              
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of SB 45                                                                                          
                                                                                                                                
Steve Branchflower                                                                                                              
Alaska Office of Victims' Rights                                                                                                
1007 West 3rd Avenue, Suite 205                                                                                                 
Anchorage, Alaska  99501-1936                                                                                                   
POSITION STATEMENT:  Answered questions about SB 45                                                                           
                                                                                                                                
Jacqueline Tupou                                                                                                                
Staff to Senator Green                                                                                                          
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Answered questions about SB 45                                                                           
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-9, SIDE A                                                                                                             
                                                                                                                                
CHAIR  RALPH   SEEKINS  called   the  Senate  Judiciary   Standing                                                            
Committee  meeting to  order at  1:32 p.m.  Present were  Senators                                                              
Ellis,  French and  Chair Seekins.  Senator Ogan  was excused  and                                                              
Senator  Therriault arrived  shortly thereafter.  The first  order                                                              
of business to come before the committee was SB 9.                                                                              
                                                                                                                                
           CSSB 9(STA)-CLEANUP OF ILLEGAL DRUG SITES                                                                        
                                                                                                                                
SENATOR  GRETCHEN  GUESS,  sponsor  of  SB 9,  told  members  that                                                              
version  V  was  before  the  committee  and  gave  the  following                                                              
explanation.                                                                                                                    
                                                                                                                                
SB 9 establishes  standards and guidelines to ensure  that illegal                                                              
drug labs  are cleaned up  and safe before  reoccupation. SB  9 is                                                              
the   companion  bill   to  Representative   Holm's   legislation.                                                              
Currently, when  law enforcement makes  a bust of an  illegal lab,                                                              
it  takes  out the  mass  chemicals  and  posts  a notice  on  the                                                              
building  stating that  it was an  illegal lab  site. The  process                                                              
ends at that  point because Alaska has no standards  or guidelines                                                              
to ensure that  the dwelling is cleaned  further.  SB 9  sets up a                                                              
procedure  for  cleanup  that  provides   the  owner  with  a  few                                                              
options. The owner  could appeal that there was a  lab bust in the                                                              
building and  if the owner wins  the appeal, no further  action is                                                              
necessary. Second,  the owner could  secure and test  the property                                                              
for  contaminants. If  high levels  of chemicals  were found,  the                                                              
property  would  be  cleaned up,  retested,  and  reoccupied.  The                                                              
third  option is  to  test the  property  after  the cleanup.  The                                                              
Department of  Environmental Conservation  (DEC) would act  as the                                                              
oversight  agency  and  the  Oil  Spill  and  Prevention  Division                                                              
within  DEC  could  most efficiently  provide  the  standards  and                                                              
guidelines  for testing  and decontamination.  The division  would                                                              
provide  a  list of  companies  eligible  to  do the  testing  and                                                              
sampling,   but  the  division   would  set   up  guidelines   for                                                              
decontamination  so  the  homeowner  could  do that  work  him  or                                                              
herself.                                                                                                                        
                                                                                                                                
SENATOR   GUESS  informed   members  that   the  law   enforcement                                                              
community   proposed  one   of  the  changes   in  the   committee                                                              
substitute  (CS). Because  drugs  change from  year  to year,  the                                                              
chemicals listed  in the original bill are  incomplete. Therefore,                                                              
the CS  provides that the Department  of Public Safety  (DPS) will                                                              
provide  a  list   of  chemicals  to  DEC  each   year  for  which                                                              
guidelines will be  set. That will ensure that the  tests are done                                                              
for the drugs that are being used in illegal labs.                                                                              
                                                                                                                                
SENATOR  GUESS   pointed  out  that  these  dwellings   cannot  be                                                              
reoccupied  until a  property owner  has self  certified that  the                                                              
procedures  were carried  out and  the  property may  not be  sold                                                              
without  full disclosure.    She noted  this  legislation has  had                                                              
seven  or eight  hearings  in the  last three  years  and she  has                                                              
found consistent  and good discussion  regarding why  the property                                                              
owner  is  being  blamed  when   a  renter  typically  causes  the                                                              
problem. This  bill contains  a provision  that says the  renter's                                                              
lease is  not void if  the renter caused  the problem.  A property                                                              
owner  also has  recourse  in damage  deposits  and civil  actions                                                              
that  can be  recovered  for any  damage.  If  criminal action  is                                                              
involved,  the  property  owner  could  request  restitution.  The                                                              
Division  of  Legal Services  believes  there  is a  good  chance,                                                              
under the  current landlord tenant  law, that renters  are already                                                              
under  this obligation,  but  there are  no  guidelines to  ensure                                                              
that a  dwelling is decontaminated.  She said this  issue requires                                                              
a policy  call and,  unless one  believes it  is the  government's                                                              
responsibility to clean  up illegal drug sites, the  onus must lay                                                              
with the  property owner.  The Legislature  can give the  property                                                              
owner  as much  recourse as  possible to  recoup costs  or it  can                                                              
allow  reoccupation of  the contaminated  dwelling.  She said  she                                                              
believes it is more  critical that a renter know  that a home does                                                              
not contain hazardous material.                                                                                                 
                                                                                                                                
SENATOR  GUESS  told members  SB  9 has  the  support  of the  law                                                              
enforcement community.                                                                                                          
                                                                                                                                
CHAIR SEEKINS  told members  that Tim  Biggane from the  Fairbanks                                                              
North  Star  Borough and  Sergeant  Ronald  Wall from  the  Alaska                                                              
State  Troopers   were  available  on  teleconference   to  answer                                                              
questions.                                                                                                                      
                                                                                                                                
SENATOR  ELLIS stated  support for  the legislation  and asked  if                                                              
Anchorage, Fairbanks,  and the Mat-Su Borough continued  to be the                                                              
hotspots for methamphetamine production in Alaska.                                                                              
                                                                                                                                
SENATOR  GUESS told  members  that to  her  knowledge, there  have                                                              
been  13  busts so  far  this  year. Since  the  Anchorage  Police                                                              
Department (APD)  started cracking  down, a lot  of labs  moved to                                                              
the Mat-Su  and Kenai  areas. Ketchikan and  Juneau have  also had                                                              
illegal drug lab busts in the past year.                                                                                        
                                                                                                                                
SENATOR FRENCH  asked if  this legislation  would apply  to hotels                                                              
and motels as well as apartment rentals.                                                                                        
                                                                                                                                
SENATOR GUESS said it would.                                                                                                    
                                                                                                                                
SENATOR FRENCH  asked for  an estimate  of the  cost of  a typical                                                              
cleanup.                                                                                                                        
                                                                                                                                
SENATOR  GUESS  said  her  research  shows  the  typical  cost  of                                                              
testing  and  cleanup  runs between  $2,000  and  $5,000.  Testing                                                              
costs about  $200 per chemical and  six chemicals are  included in                                                              
the new chemical  list. She talked to a cleanup  company in Juneau                                                              
that would  charge 70 cents  per square foot.   She said  the cost                                                              
would vary  due to the size of  the area and whether  a "suitcase"                                                              
or contained lab was used.                                                                                                      
                                                                                                                                
SENATOR  FRENCH  asked  if  owners  who want  to  do  the  cleanup                                                              
privately could get a cleanup manual from DEC.                                                                                  
                                                                                                                                
SENATOR  GUESS said  DEC has  to  have decontamination  guidelines                                                              
that  must  be followed.  The  Juneau  business  told her  that  a                                                              
typical cleanup would  involve blasting the paint  from the walls,                                                              
repainting, resealing and removing the carpet.                                                                                  
                                                                                                                                
SENATOR THERRIAULT asked,  if the bill allows for the  sale of the                                                              
property with  full disclosure, why  it can't be rented  with full                                                              
disclosure. He also  asked how long the disclosure  time period is                                                              
in effect  and whether it remains  with the property  forever even                                                              
though it was officially cleaned up.                                                                                            
                                                                                                                                
SENATOR GUESS  said that even if  a property is sold,  it couldn't                                                              
be reoccupied  until it is cleaned.   Regarding the  timeframe for                                                              
disclosure,  she said  that once  it's  been cleaned  and DEC  has                                                              
approved the test results, "it goes off of the list."                                                                           
                                                                                                                                
SENATOR THERRIAULT  asked whether  he as the  owner of  a recently                                                              
busted drug lab could reoccupy the property.                                                                                    
                                                                                                                                
SENATOR GUESS  said she  does not  know if  anyone could  stop the                                                              
owner  from reoccupying  the  property, but  the  owner could  not                                                              
allow anyone else to reoccupy it.                                                                                               
                                                                                                                                
SENATOR THERRIAULT  asked if the state cannot stop  the owner from                                                              
reoccupying the  property and the  owner sold it, whether  the new                                                              
owner could occupy it.                                                                                                          
                                                                                                                                
SENATOR  GUESS said  to her knowledge  the state  cannot stop  the                                                              
owner from  occupying the property,  but the state could  stop the                                                              
owner from having anyone else occupy it.                                                                                        
                                                                                                                                
CHAIR  SEEKINS  asked  if  that  would apply  even  if  the  owner                                                              
disclosed  the  situation and  the  tenant  agreed to  assume  the                                                              
risk.                                                                                                                           
                                                                                                                                
SENATOR GUESS  said that  it would.  She surmised that  situations                                                              
would arise  where people might  not be  able to afford  any other                                                              
housing.  Offering  a  waiver  provision   would  delve  into  the                                                              
landlord tenant law and other things she did not explore.                                                                       
                                                                                                                                
SENATOR  THERRIAULT  noted  that Senator  Guess  mentioned  higher                                                              
dangers  to  infants because  of  crawling  on carpets  and  asked                                                              
whether methamphetamine  is absorbed through the  skin and whether                                                              
the  concern  is  with  the  end   product  only  or  all  of  its                                                              
components that might have been spilled in the making.                                                                          
                                                                                                                                
SENATOR GUESS  said that  all of  the drugs on  the list  could be                                                              
absorbed through  the skin and  from breathing. The  common health                                                              
concerns  are   skin  burns,   eye  irritation,  and   respiratory                                                              
problems from inhaling the chemicals.                                                                                           
                                                                                                                                
SENATOR  THERRIAULT  pointed  out  that different  sections  of  a                                                              
house, such as a  garage, could be separated from  the living area                                                              
by doors.  He asked  whether all of  the restrictions  would apply                                                              
to the entire house if the activity took place in the garage.                                                                   
                                                                                                                                
SENATOR  GUESS said  they do  and  she hasn't  grappled with  that                                                              
issue  because she  doesn't know  what chemicals  might seep  into                                                              
the dwelling.  In that  situation, she  would assume the  landlord                                                              
would  test immediately  to find  out whether  chemicals exist  in                                                              
the dwelling.                                                                                                                   
                                                                                                                                
CHAIR  SEEKINS  asked if  the  entire  hotel  would be  closed  if                                                              
someone set up a lab in one room.                                                                                               
                                                                                                                                
SENATOR GUESS  said the previous  committee discussed  this issue.                                                              
At this  point, it  applies to  the dwelling,  which would  be the                                                              
hotel room and  not the entire complex. Law  enforcement officials                                                              
are  trained to  be able  to tell  whether other  rooms have  been                                                              
impacted.  They  would  inform the  property  owner  if  adjoining                                                              
ducting and  other systems  could have  impacted other  rooms. She                                                              
explained that this  bill is focused on the place  of activity and                                                              
law  enforcement officials  feel  competent  to determine  whether                                                              
any other areas might be contaminated.                                                                                          
                                                                                                                                
CHAIR  SEEKINS   asked  Senator   Guess  whether  she   considered                                                              
mandatory restitution  from the person  that caused the  damage as                                                              
part of the sentencing                                                                                                          
                                                                                                                                
SENATOR GUESS  said that  according to testimony  in the  past, an                                                              
owner  could   get  restitution  now   if  there  is   a  criminal                                                              
proceeding. She  looked into including a restitution  provision in                                                              
the  bill to  ensure that  it is  required,  but was  told by  the                                                              
Division  of  Legal  Services  it   was  unnecessary  because  the                                                              
property owner  has that  vehicle along with  a civil  vehicle and                                                              
damage deposits.                                                                                                                
                                                                                                                                
CHAIR SEEKINS  expressed concern  that using  a civil  vehicle may                                                              
cost  as much  to recover  as the  restitution is  worth. He  said                                                              
because the  state will be  requiring the  owner to bear  the cost                                                              
of cleanup,  it should  mandate restitution  from whomever  caused                                                              
the damage as part of the sentence.                                                                                             
                                                                                                                                
SENATOR FRENCH  said it is  virtually guaranteed  that restitution                                                              
would be  ordered as  part of a  sentence. He  said a  judge would                                                              
have  to  take  into  account  a  person's  ability  to  pay,  but                                                              
restitution  would be  ordered as  part of  the criminal  sentence                                                              
and, if any assets are available, the owner could recover.                                                                      
                                                                                                                                
SENATOR DYSON  said the Senate  HESS Committee discussed  the same                                                              
question and Senator  French's answer is correct.  However, he had                                                              
to remind  himself that the  primary intention of  the legislation                                                              
is the safety of the next occupants.                                                                                            
                                                                                                                                
CHAIR SEEKINS  said he agrees  with Senator Guess's  intention; he                                                              
is just trying  to protect the  innocent party. He then  asked why                                                              
this legislation  is not  being used to  address other  homes that                                                              
contain  health  hazards  that  are  not  the  result  of  illegal                                                              
activities.                                                                                                                     
                                                                                                                                
SENATOR GUESS  said that  when researching  this issue,  she found                                                              
that  other laws  provide a  tremendous amount  of coverage.  This                                                              
legislation is focused on solving one problem.                                                                                  
                                                                                                                                
CHAIR  SEEKINS noted  that no  other  laws have  "the teeth"  this                                                              
bill has.                                                                                                                       
                                                                                                                                
SENATOR   GUESS  offered   to  provide   Chair   Seekins  with   a                                                              
comprehensive  list of how  the state  deals with other  hazardous                                                              
materials within dwellings.                                                                                                     
                                                                                                                                
SENATOR FRENCH  asked Sergeant Wall  where the responsibility  for                                                              
the cleanup of methamphetamine labs falls right now.                                                                            
                                                                                                                                
SENATOR  FRENCH  said  in  many  cases  the  labs  are  not  being                                                              
cleaned.  The residences  are being reoccupied  shortly after  the                                                              
labs are discovered and dismantled.                                                                                             
                                                                                                                                
SENATOR FRENCH  asked if law  enforcement officials haul  away the                                                              
obvious remnants and the trace materials stay behind.                                                                           
                                                                                                                                
SERGEANT  WALL said  that is  correct.  Law enforcement  officials                                                              
remove  gross contaminants  and  items that  contain  contaminants                                                              
from the residence.  The Drug Enforcement Agency  (DEA), through a                                                              
federal  program,   has  a  company  that  packages   and  removes                                                              
contaminants,  but that  company  never sets  foot  inside of  the                                                              
residence.                                                                                                                      
                                                                                                                                
SENATOR GUESS  told members that  she has found two  situations to                                                              
be the most common.  The first is one in which  the property owner                                                              
does not  care and re-rents the  property. The other  situation is                                                              
one in which the  property owner does care, but has  nowhere to go                                                              
for information.  She recalled  a case in  Juneau where  the owner                                                              
was unable  to get information from  state or city agencies  so he                                                              
gutted  the house  and  burned the  damaged  material because  the                                                              
city  dump would  not take  it. The owner  was then  fined by  the                                                              
state for doing  so. She said currently there's no  way of knowing                                                              
the standard to which a place is cleaned.                                                                                       
                                                                                                                                
SENATOR  THERRIAULT questioned  whether  the wall  paint would  be                                                              
sand blasted  down  to sheetrock  or whether  the walls are  being                                                              
steam cleaned.                                                                                                                  
                                                                                                                                
SENATOR GUESS  said she  was told  the paint  needs to  be removed                                                              
down to  the sheetrock  and the  sheetrock needs  to be  resealed.                                                              
The same applies  to the carpet;  the pad needs to be  removed and                                                              
the floor  needs to  be resealed before  new carpet  is installed.                                                              
She noted that  law enforcement officers have testified  that they                                                              
can  detect methamphetamine  in  the walls  after  they have  been                                                              
repainted.                                                                                                                      
                                                                                                                                
CHAIR SEEKINS  asked if the goal  of sealing would be  to trap the                                                              
chemicals within the sheetrock.                                                                                                 
                                                                                                                                
SENATOR  GUESS said  that repainting  or steam  blasting does  not                                                              
trap the chemicals.                                                                                                             
                                                                                                                                
CHAIR SEEKINS asked Elise Hsieh and Tim Biggane to comment.                                                                     
                                                                                                                                
MS. ELISE  HSIEH, Assistant  Attorney General,  Department  of Law                                                              
(DOL),  told  members that  in  response  to an  earlier  question                                                              
about whether the  owner could reoccupy the property,  language on                                                              
page  4  in subsection  (c)  reads,  "...or,  being the  owner  of                                                              
property, knowingly  occupies or  uses the property,  in violation                                                              
of this  section is  guilty of  a class  A misdemeanor."  She said                                                              
who  would  prosecute  and  enforce   that  provision  is  another                                                              
matter.                                                                                                                         
                                                                                                                                
CHAIR  SEEKINS asked  if knowingly  jeopardizing the  health of  a                                                              
child is legal in Alaska statutes.                                                                                              
                                                                                                                                
MS. HSIEH said she  is not as familiar with that  area of law, but                                                              
she assumes  there are statutes  with general language  that would                                                              
apply to that situation.                                                                                                        
                                                                                                                                
MR.  TIM  BIGGANE,   Director  of  Emergency  Operations   in  the                                                              
Fairbanks  North Star  Borough,  told members  that  this bill  is                                                              
necessary   because  chronic  exposure   to  methamphetamine   lab                                                              
chemicals or byproducts  has the potential to cause  both long and                                                              
short   term   health   problems.    Children   are   particularly                                                              
susceptible to  the residue of  chemicals used during  manufacture                                                              
that remain  in furniture,  window treatments,  carpets and  other                                                              
places. His  office has  been involved  with owners of  facilities                                                              
used as  drug labs. About  50 percent of  the owners want  to know                                                              
what  needs to  be  done  to clean  the  property.  He stated  his                                                              
division  supports this  legislation  as does  the  mayor and  the                                                              
assembly.                                                                                                                       
                                                                                                                                
2:10 p.m.                                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT  asked  if   all  of  the  furniture  must  be                                                              
destroyed or whether it can be certified as clean.                                                                              
                                                                                                                                
SENATOR  GUESS   said  she  would  look  to   DEC's  contamination                                                              
guidelines  for   an  answer  and   would  get  back   to  Senator                                                              
Therriault.                                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT remarked  that if  the paint  must be  scraped                                                              
off  of the  walls, he  couldn't  imagine what  would  be done  to                                                              
clean a mattress.                                                                                                               
                                                                                                                                
CHAIR  SEEKINS  asked if  DEC  provided  draft guidelines  or  any                                                              
indication of what may be involved.                                                                                             
                                                                                                                                
SENATOR  GUESS  said  DEC  hasn't, but  other  states  have  draft                                                              
guidelines.                                                                                                                     
                                                                                                                                
MR. LARRY  DIETRICK, Acting Director  of the Spill  Prevention and                                                              
Response Division,  DEC, explained to members that  the guidelines                                                              
would be  chemical-specific so there  is a big difference  between                                                              
the  cleanup   requirements  for  lead-based  paint,   a  volatile                                                              
organic   compound  cleanup,   or   more  sophisticated   chemical                                                              
compounds.  DEC  would  approach   the  guidelines  based  on  the                                                              
compounds that have  been encountered in these  labs. The standard                                                              
for  children's exposure  would  be used.  DEC  would specify  the                                                              
analytic  methods,   the  sampling  protocols,  and   the  cleanup                                                              
guidelines.  DEC has  looked at  guidelines used  in other  states                                                              
and found  that the State  of Missouri  has a very  simple cleanup                                                              
guideline  that is  very  general and  not  chemical specific.  He                                                              
pointed out that  a large laboratory using a  variety of chemicals                                                              
and adjoining  ventilation systems in  a condo unit would  be much                                                              
more complicated  to clean up.  He repeated that  guidelines would                                                              
be  driven by  the types  of chemicals  and the  setting in  which                                                              
they are  found. DEC will  propose guidelines that  address simple                                                              
to  complex  situations and  the  guidelines  may be  modified  or                                                              
upgraded later on if a more elaborate scenario occurs.                                                                          
                                                                                                                                
CHAIR  SEEKINS  asked  Mr.  Dietrick  to  provide  copies  of  the                                                              
guidelines used by other states.                                                                                                
                                                                                                                                
SENATOR THERRIAULT  asked if  anything in  the bill would  trigger                                                              
use of the 470 fund.                                                                                                            
                                                                                                                                
MR.  DIETRICK replied,  "From the  response  perspective, we  stay                                                              
outside  of private  dwellings.  That's a  problem for  us and  we                                                              
can't  legally  go into  a  private  dwelling  - that's  a  search                                                              
warrant situation for  us...." He said DEC has  responded to these                                                              
home  lab  situations  when  the   contamination  spreads  to  the                                                              
outside environment, such as in the groundwater.                                                                                
                                                                                                                                
SENATOR  THERRIAULT asked  if there  would  be any  way the  owner                                                              
could ask DEC to help and pick up the tab.                                                                                      
                                                                                                                                
MR.  DIETRICK said  if the  owner asks  for technical  assistance,                                                              
DEC tries  to provide  it,  but if DEC  was in  a regulatory  mode                                                              
that would be another situation.                                                                                                
                                                                                                                                
SENATOR THERRIAULT  asked if  the homeowner  would have  access to                                                              
the [470] account.                                                                                                              
                                                                                                                                
MR. DIETRICK said the owner would not.                                                                                          
                                                                                                                                
There  being no  further questions,  Chair Seekins  said he  would                                                              
compare SB 45  and Representative Holm's bill,  get the guidelines                                                              
from DEC, and bring the bill before the committee again.                                                                        
                                                                                                                                
SENATOR GUESS asked if public testimony was closed.                                                                             
                                                                                                                                
CHAIR SEEKINS  said he would always  try to accommodate  those who                                                              
want to give public testimony.                                                                                                  
                                                                                                                                
SB 45 was held in committee.                                                                                                    
                                                                                                                                
                                                                                                                                
          SB   2-PARENT LIABILITY FOR DAMAGE BY CHILD                                                                       
                                                                                                                                
SENATOR DYSON,  sponsor of  SB 2,  informed members he  introduced                                                              
this legislation  at the request  of several school  districts and                                                              
the Alaska  Association of School  Boards (AASB).  It  removes the                                                              
liability  limit of  $10,000 for  acts  of vandalism.  He said  he                                                              
originally viewed this  legislation as a simple matter,  but as he                                                              
began  "stumbling  around  in  the legal  woods,"  he  stepped  on                                                              
several other issues he was unaware of.                                                                                         
                                                                                                                                
TAPE 03-9, SIDE B                                                                                                             
                                                                                                                              
SENATOR DYSON  informed members  that if  version S  of SB  2 were                                                              
adopted,  it  would  be  used  as  a  partial  revisor's  bill  to                                                              
eliminate  some of  the  ambiguities  in the  law.  It would  also                                                              
establish that  a court  should pursue the  minor that  did damage                                                              
before  pursuing  the  parent.   It  also  clarifies  that  foster                                                              
parents,  subsidized  legal  guardians,  and  subsidized  adoptive                                                              
parents are  not held liable for  the actions of  the behaviorally                                                              
challenged children  for which they have accepted  responsibility.                                                              
He  asked  that the  committee  adopt  version  S as  the  working                                                              
document.                                                                                                                       
                                                                                                                                
SENATOR  THERRIAULT  moved to  adopt  version  S of  SB  2 as  the                                                              
working document.  There being no objection, it was so ordered.                                                                 
                                                                                                                                
SENATOR DYSON explained the changes in version S as follows:                                                                    
                                                                                                                                
   · Section 1 deletes the $10,000 limit on parental liability                                                                  
     in existing law                                                                                                            
   · Section 2(c) exempts the legal guardian from liability                                                                     
                                                                                                                                
SENATOR DYSON  said that  provision created  a lot of  discussion.                                                              
He misspoke  at the  first hearing  when he  said legal  guardians                                                              
would not be  liable for the actions  of a child who  was actually                                                              
a ward  of the state.   Subsequently he  found two cases  that are                                                              
contradictory.   Section  2(c) will  set that  matter straight  in                                                              
statute. The  Division of  Family and  Youth Services  (DFYS) does                                                              
not  have insurance,  but  the  state  does have  risk  management                                                              
insurance  to  provide  protection. He  continued  explaining  the                                                              
changes in version S.                                                                                                           
                                                                                                                                
   · Section 3 clarifies that legal guardians are held harmless.                                                                
     Subsection  (b) specifies that  parents who  adopt a  hard to                                                              
     place child  are also held harmless. Most  of those adoptions                                                              
     are subsidized  because the children are likely  to end up in                                                              
     an institution  or group home if the adoptive  parents do not                                                              
     get help.                                                                                                                  
   · Subsection (d)(2) is new and clarifies that action may be                                                                  
     taken against the child.                                                                                                   
                                                                                                                                
SENATOR  DYSON said  that since  he  introduced the  bill, he  has                                                              
received a  number of calls asking  him why the law will  go after                                                              
the parent and not  the child who did the damage.  The Division of                                                              
Legal Services  told him  that one  could go  after the  child and                                                              
the  child's  assets,  including  dividends,  until  the  debt  is                                                              
satisfied. He said  he is very pleased with the  latest version of                                                              
the  bill  as it  accomplishes  several  things  that need  to  be                                                              
addressed  and   provides  a  clear   trail  for   holding  people                                                              
accountable.                                                                                                                    
                                                                                                                                
SENATOR THERRIAULT  asked if this language ties  the exemption for                                                              
the legal  guardian  to state placed  children  only or whether  a                                                              
family member  who acts  as a  legal guardian,  such as  an uncle,                                                              
would be exempt.                                                                                                                
                                                                                                                                
MR.  BRAD THOMPSON,  Director of  Risk  Management, Department  of                                                              
Administration (DOA),  said that Senator Therriault's  question is                                                              
answered  in  existing   statute,  AS  13.26.070.   It  reads,  "A                                                              
guardian  is  not  liable  to  third  persons  by  reason  of  the                                                              
parental  relationship for  acts  of the  ward." That  is the  law                                                              
Senator Dyson  is trying to correct  because it conflicts  with AS                                                              
34. He  does not  believe it  is restricted  to guardians  through                                                              
the state's activity.                                                                                                           
                                                                                                                                
SENATOR FRENCH  said Senator Therriault's  question brings  up the                                                              
most interesting  policy call this  legislation makes,  that being                                                              
that  it   exempts  guardians  trying   to  "do  good,"   such  as                                                              
grandparents.                                                                                                                   
                                                                                                                                
SENATOR  ELLIS said  he understands  denying a  student loan  to a                                                              
child involved  in a bad act until  the debt is made  good, but he                                                              
asked  for  an  explanation  of  how a  child's  assets  would  be                                                              
attached.                                                                                                                       
                                                                                                                                
SENATOR DYSON said  he assumes that is within  the court's purview                                                              
to decide  what is  appropriate.  He expects  it would most  often                                                              
apply to a teenage minor who might own a car.                                                                                   
                                                                                                                                
SENATOR ELLIS  asked if the  child would  be required to  pay back                                                              
100 percent  of the  debt owed  before benefiting  from a  student                                                              
loan or any other state benefit.                                                                                                
                                                                                                                                
SENATOR DYSON replied  it is best to leave those  decisions to the                                                              
court.                                                                                                                          
                                                                                                                                
SENATOR  THERRIAULT  said  he worked  on  the  original  statutory                                                              
language and  at that time he heard  from quite a few  parents who                                                              
said  that the  state wouldn't  let them  control their  children,                                                              
but the  state would  hand them  the bill for  damage done  by the                                                              
children.  Those parents  cautioned they  would use  section  2 of                                                              
the  statute so  that  when  the children  went  to  a movie,  the                                                              
parents  would call  the police  and report them  as runaways.  He                                                              
asked if Senator Dyson has heard similar comments.                                                                              
                                                                                                                                
SENATOR DYSON  said he hasn't  but a similar  bill is  working its                                                              
way  through   the  House.     In   testimony  before   the  House                                                              
committees,  people have  said that  the  first recourse  is to  a                                                              
homeowner's  policy, and  if the  $10,000 limit  is removed,  some                                                              
homeowners'  policies may  increase.  He also  heard from  parents                                                              
who said  the state  would not  protect them  when their  children                                                              
are  abusive, but  wants  to take  everything  they  own if  their                                                              
children do damage elsewhere.                                                                                                   
                                                                                                                                
SENATOR  FRENCH noted  that a judge  might not  read the  recovery                                                              
against  the minor  provision  to mean  that  the entire  judgment                                                              
must be put on  the minor so the court would  have to collect from                                                              
the parents.   He  questioned whether  the bill  should contain  a                                                              
provision that  says the  liability is  joint and severable.  That                                                              
way, the  court would proceed against  both in tandem,  and if the                                                              
minor has easily recoverable assets, those would be taken first.                                                                
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
2:40 p.m.                                                                                                                     
                                                                                                                                
SENATOR  ELLIS  asked if  the  committee  has information  on  the                                                              
largest dollar amount of an act of youth-induced vandalism.                                                                     
                                                                                                                                
SENATOR DYSON  said he received  some information from  his school                                                              
district  and  believes  the  amount   was  between  $300,000  and                                                              
$400,000.                                                                                                                       
                                                                                                                                
SENATOR  ELLIS  said  he participated  in  discussions  about  the                                                              
original  legislation when  the amount was  increased from  $2,000                                                              
to $10,000. This  proposal is to have no limit. He  said he agrees                                                              
with  Senator Dyson  that  he resents  paying  for other  people's                                                              
children  who are out  of control,  but he  encouraged members  to                                                              
seriously  consider the  consequences  of  changing the  liability                                                              
limit amount from $10,000 to no limit.                                                                                          
                                                                                                                                
SENATOR  DYSON  told  members  the   House  version  of  the  bill                                                              
contains  a $25,000  limit and  he  believes this  issue would  be                                                              
dealt  with in  conference  committee. He  said  all that  parents                                                              
have is  classic bankruptcy  protection that  allows them  to keep                                                              
equity in their home.                                                                                                           
                                                                                                                                
CHAIR SEEKINS  said he hates to  see any family come to  that, but                                                              
he  hates  to  burden  the  public   with  the  activities  of  an                                                              
unsupervised  child.     He  said  this  bill   would  provide  an                                                              
incentive for  parents to  know whom their  children are  with and                                                              
where they are.  SB 2 was held in committee.                                                                                    
                                                                                                                                
          SJR 3-CONST AM: APPROPRIATION/SPENDING LIMIT                                                                      
                                                                                                                                
SENATOR  DYSON,  sponsor  of  SJR  3,  told  members  that  former                                                              
Senator  Donley  proposed  a constitutional  spending  limit  last                                                              
year  when  the  Legislature was  discussing  the  state's  fiscal                                                              
difficulties. It passed  the Senate but not the House.  As he read                                                              
through  Senator  Donley's  committee  discussions  and  notes  he                                                              
found   that  in   1981   a  previous   constitutional   amendment                                                              
established a spending  limit with an escalator  clause that would                                                              
have  set last  year's  general  fund spending  limit  at over  $6                                                              
billion. It also  contained a provision that if  court interpreted                                                              
that the  spending limit was reached,  one-third must be  spent on                                                              
capital  projects.  The  upshot is  that  constitutional  spending                                                              
limits never worked.                                                                                                            
                                                                                                                                
SENATOR DYSON  explained that Senator  Donley's proposal  said any                                                              
spending  increase would  be limited  to 4 percent  of the  amount                                                              
spent  two years  earlier.  To spend  another  2  percent, a  two-                                                              
thirds vote  was required and  to spend  2 percent beyond  that, a                                                              
three-quarter vote was required.                                                                                                
                                                                                                                                
SJR 3  is virtually  the same  resolution that  passed the  Senate                                                              
last year.  It excludes  payments to  the railroad, the  permanent                                                              
fund,  money traded  between state  agencies,  dividends and  pass                                                              
through  money from  the  federal government.  It  will require  a                                                              
supermajority  vote to  increase the  budget more  than 4  percent                                                              
every two years.                                                                                                                
                                                                                                                                
2:49 p.m.                                                                                                                     
                                                                                                                                
SENATOR THERRIAULT  asked if SJR 3 is a reintroduction  of Senator                                                              
Donley's resolution.                                                                                                            
                                                                                                                                
SENATOR DYSON said it is.                                                                                                       
                                                                                                                                
SENATOR ELLIS noted  that Governor Murkowski has said  he does not                                                              
support  a  constitutional  spending  limit because  he  plans  to                                                              
exercise fiscal discipline.  He asked Senator Dyson  if he changed                                                              
the Governor's mind.                                                                                                            
                                                                                                                                
SENATOR  DYSON   said  he   has  not.   He  has  had   significant                                                              
discussions  with  Ms. Frasca  of  the  Office of  Management  and                                                              
Budget (OMB)  and he  hopes someone  from the Administration  will                                                              
be present today to suggest improvements.                                                                                       
                                                                                                                                
SENATOR  THERRIAULT  said  the constitution  expressly  gives  the                                                              
Legislature the  power, without interaction with  the Governor, so                                                              
it is not necessary to change his mind.                                                                                         
                                                                                                                                
SENATOR ELLIS said although it is not required, it is advisable.                                                                
                                                                                                                                
SENATOR FRENCH  referred to  a statement  made earlier  by Senator                                                              
Dyson about  how governments have  a hard time breaking  the habit                                                              
of spending  other's money and remarked  that Alaska is  a perfect                                                              
example of  the fallacy of  that position because  the Legislature                                                              
has cut spending over the last decade.                                                                                          
                                                                                                                                
SENATOR  DYSON  said  it  is quite  surprising  to  see  that  the                                                              
Legislature  is spending  less now  per  capita than  it was  pre-                                                              
Prudhoe Bay. However,  he does not believe the  general population                                                              
believes   that   legislators    are   trustworthy   without   the                                                              
Legislature  voluntarily  putting  significant  restrictions  upon                                                              
itself.  He said  he hopes  the Legislature  acts responsibly  and                                                              
doesn't need  to impose the  limit. However, Senator  Donley found                                                              
that for  the spending  limit to come  into play, the  Legislature                                                              
would  have to  spend more  money  than what  is allowed,  someone                                                              
would have  to file suit,  and the court  would have to  rule that                                                              
the Legislature acted unconstitutionally.                                                                                       
                                                                                                                                
SENATOR ELLIS  asked Senator Dyson  if he said this  resolution is                                                              
largely a public relations exercise to build trust.                                                                             
                                                                                                                                
SENATOR  DYSON  said he  believes,  and  it was  Senator  Donley's                                                              
position,  that   this  must  be   done  to  build   the  public's                                                              
confidence  that the  Legislature is  operating within  boundaries                                                              
that are not  easily mutable. He said he suspects  everyone agrees                                                              
something needs to  be done to bring in more  revenue, but Senator                                                              
Donley  believes  the public  will  not  support any  new  revenue                                                              
sources unless  they trust  the Legislature  with their  money. He                                                              
said this  would help. His last  point was that someone  must take                                                              
court  action to  impose the  limit  and he  suspects that  action                                                              
will seldom be invoked, but it's a good exercise in discipline.                                                                 
                                                                                                                                
SENATOR FRENCH  asked Senator Dyson  for a copy of  the background                                                              
materials he referenced.                                                                                                        
                                                                                                                                
SENATOR THERRIAULT  said  that Senator Donley  was concerned  that                                                              
the public  was convinced  that the  Legislature had been  prudent                                                              
and  would  continue to  be  prudent.  He  asked if  the  existing                                                              
spending limit  set $2.5 billion as  the base and ratcheted  it up                                                              
every year.                                                                                                                     
                                                                                                                                
SENATOR  DYSON   said  that  is  correct;  the   escalator  clause                                                              
provides for inflation and population increases.                                                                                
                                                                                                                                
SENATOR THERRIAULT  said  that points out  why statutory  programs                                                              
should never automatically  be inflation proofed  - spending would                                                              
shoot through the roof.                                                                                                         
                                                                                                                                
There  being no  further  questions  or testimony,  Chair  Seekins                                                              
told  members   he  would  bring   this  legislation   before  the                                                              
committee at a  later time. He then announced  the committee would                                                              
take up SB 45.                                                                                                                  
                                                                                                                                
               SB 45-LB&A CRIMES AND COOPERATION                                                                            
                                                                                                                                
SENATOR  LYDA  GREEN,  sponsor  of  SB 45,  told  members  that  a                                                              
proposed committee  substitute version Q was prepared  and was the                                                              
result  of   concerns  expressed   during  a  previous   committee                                                              
hearing.                                                                                                                        
                                                                                                                                
SENATOR  THERRIAULT  made  a motion  to  adopt  version Q  as  the                                                              
working document.                                                                                                               
                                                                                                                                
There being no  objection, Chair Seekins announced  that version Q                                                              
was before the committee.                                                                                                       
                                                                                                                                
SENATOR GREEN gave  the following explanation of  the changes made                                                              
in version Q:                                                                                                                   
                                                                                                                                
   · the felony status was changed to a misdemeanor throughout,                                                                 
     and accomplishes the same purpose                                                                                          
  · the term "public employee" was changed to "state employee"                                                                  
   · on line 21 of page 2, the expression, "an appointing                                                                       
     authority may appoint" includes all state employees                                                                        
   · Section 4 on line 23 of page 2 adds to current statutory                                                                   
     language   so   that   whistleblower   status   would   cover                                                              
     interference  or any failure  to cooperate  with an  audit or                                                              
     other matter  within the authority of the  Legislative Budget                                                              
     and Audit Committee.                                                                                                       
                                                                                                                                
CHAIR SEEKINS asked Senator Green about the proposed amendments.                                                                
                                                                                                                                
SENATOR   GREEN  explained   that  Senator   Therriault  has   one                                                              
amendment that  contains some deletions  and the  other amendments                                                              
pertain to changes in the reporting authority.                                                                                  
                                                                                                                                
SENATOR ELLIS  asked Senator  Green the  level of misdemeanor  and                                                              
the maximum penalty it carries.                                                                                                 
                                                                                                                                
SENATOR  GREEN said  the penalty  is  a class  A misdemeanor.  She                                                              
deferred to Mr. Branchflower for further details.                                                                               
                                                                                                                                
MR.  STEVE BRANCHFLOWER,  Office of  Victims' Rights,  Legislative                                                              
Affairs Agency,  told members that  a class A misdemeanor  carries                                                              
a maximum jail term  of one year and a maximum  fine of $2,000 and                                                              
would  be for  hindering the  Legislative Budget  and Audit  (LBA)                                                              
Committee  in the first  degree. The  second degree  is a  class B                                                              
misdemeanor  with a  maximum  penalty of  90  days in  jail and  a                                                              
fine.                                                                                                                           
                                                                                                                                
SENATOR  GREEN asked  Mr.  Branchflower to  describe  how a  court                                                              
would handle the probable sentence.                                                                                             
                                                                                                                                
MR.  BRANCHFLOWER  said  it  would  depend  on  a  person's  prior                                                              
criminal history.  Neither statute would subject  the defendant to                                                              
presumptive sentencing  because that  only applies to  felonies. A                                                              
judge  would  have  total  discretion in  terms  of  fashioning  a                                                              
sentence.  The judge  would look  to the  person's background  and                                                              
consider  the  arguments. The  court  could  also request  a  pre-                                                              
sentence report.                                                                                                                
                                                                                                                                
SENATOR  ELLIS  asked  if,  upon  conviction,  there  could  be  a                                                              
significant find and  someone could conceivably go to  jail for up                                                              
to one year.                                                                                                                    
                                                                                                                                
MR.  BRANCHFLOWER   said  that  is  correct  for   a  first-degree                                                              
conviction for a class A misdemeanor.                                                                                           
                                                                                                                                
SENATOR  ELLIS asked  if that is  the charge  for not  cooperating                                                              
with the LBA committee.                                                                                                         
                                                                                                                                
MR. BRANCHFLOWER said  it would be for violation  of AS 11.56.870,                                                              
hindering the LBA committee as a state employee.                                                                                
                                                                                                                                
CHAIR   SEEKINS   asked  if   hindering   means   more  than   not                                                              
cooperating.                                                                                                                    
                                                                                                                                
MR.  BRANCHFLOWER said  that  is correct:  hindering  contemplates                                                              
all of the  conduct that is set out  on the top of page  2, so the                                                              
person would  have to actively obstruct  as opposed to  failure to                                                              
provide information in response to a request.                                                                                   
                                                                                                                                
SENATOR  ELLIS asked  what  the underlying  rationale  is for  the                                                              
heavy hand  in regard to  the LBA Committee  and not to  the other                                                              
standing legislative committees.                                                                                                
                                                                                                                                
MS. JACQUELINE  TUPOU, staff to  Senator Green, told  members that                                                              
an amendment  proposed by  Senator Therriault  might resolve  that                                                              
concern  by adding  another  layer  to this  process  so that  the                                                              
consequences do not happen immediately.                                                                                         
                                                                                                                                
SENATOR THERRIAULT  moved to adopt  Amendment 1 and asked  that it                                                              
be considered  a conceptual  amendment to  give the legal  drafter                                                              
some leeway for corrections.                                                                                                    
                                                                                                                                
SENATOR ELLIS objected.                                                                                                         
                                                                                                                                
SENATOR  THERRIAULT  told  members  that  when he  looked  at  the                                                              
language on  page 2,  lines 3 and  4, he  was concerned  about who                                                              
the words  "committee or its staff"  referred to. As  the outgoing                                                              
chair of  the LBA Committee,  his staff  consisted of  the auditor                                                              
and all  of her personnel, the  fiscal analyst and  his personnel,                                                              
and the  Senator's personal  staff as well  as a committee  person                                                              
who interacted  between his  office and  the others. In  addition,                                                              
all of the  LBA Committee members  had a staff member.  He did not                                                              
feel  it was  appropriate that  a request  from any  one of  those                                                              
members  or   their  staff  would   trigger  this   provision  and                                                              
jeopardize  their  employment  and  subject  them to  a  fine.  He                                                              
explained that Amendment  1 would replace the words  "committee or                                                              
its  staff"  with  "the legislative  auditor  or  the  legislative                                                              
fiscal  analyst".   He advised that  Pat Davidson  and David  Teal                                                              
now  hold those  positions.  Therefore,  if  their shops  make  an                                                              
official  request   for  information,  this  provision   would  be                                                              
triggered  if the  information  were withheld.  He  noted that  he                                                              
could  envision departments  wanting  to protect  social  security                                                              
numbers,  income information,  or  other confidential  information                                                              
from  his  staff because  they  don't  work  under any  canons  of                                                              
confidentiality. However,  the Legislative Budget and  Audit staff                                                              
and  the  Legislative  Finance  staff do  so  agencies  should  be                                                              
comfortable  sharing that  information with  those two  divisions.                                                              
The wording of Amendment 1 solves his concern.                                                                                  
                                                                                                                                
SENATOR ELLIS said  that Amendment 1 is a huge  improvement and he                                                              
withdrew his objection.                                                                                                         
                                                                                                                                
CHAIR  SEEKINS   announced  that  Amendment  1  as   a  conceptual                                                              
amendment was adopted.                                                                                                          
                                                                                                                                
SENATOR  GREEN told  members that  Section 5  was incorporated  at                                                              
Senator Therriault's request.                                                                                                   
                                                                                                                                
MS. TUPOU  explained that  Section 5 is  a housekeeping  issue. In                                                              
1980 when  the permanent fund board  was established, there  was a                                                              
provision  requiring legislative  confirmation  of board  members.                                                              
It also  provided that  LBA would  hold some  public hearings  and                                                              
offer  recommendations on  the  nominees. In  1982,  a court  case                                                              
decision declared  that provision  unconstitutional. She  surmised                                                              
that  provision   was  removed  elsewhere  but   because  computer                                                              
programs did  not provide word search  abilities at that  time, it                                                              
was never removed from these sections of statute.                                                                               
                                                                                                                                
CHAIR SEEKINS  noted that  Section 5 was  already adopted  as part                                                              
of version Q.                                                                                                                   
                                                                                                                                
MS. TUPOU  told members that Amendment  1 would add  another layer                                                              
so that if an  auditor didn't get the requested  information, they                                                              
would notify  Ms. Davidson who would  make the official  call. The                                                              
violation would be  triggered if her request went  unanswered. The                                                              
person must be a public servant, which implies public trust.                                                                    
                                                                                                                                
SENATOR ELLIS recalled  serving on the Senate  Judiciary Committee                                                              
with Senator  Taylor who was frustrated  that he didn't  have more                                                              
power to  obtain information. That  is what prompted  his question                                                              
about why  these powers  and potential  penalties would  not apply                                                              
to other legislative committees.                                                                                                
                                                                                                                                
TAPE 03-10, SIDE A                                                                                                            
3:14 p.m.                                                                                                                     
                                                                                                                                
SENATOR  GREEN said  that  has to  do  with the  role  of the  LBA                                                              
Committee,  and   Legislative  Finance   partners  with   the  LBA                                                              
Committee  in doing investigative  work.  That standard is  higher                                                              
because  often  investigations  are  the  result  of  questionable                                                              
activity.                                                                                                                       
                                                                                                                                
SENATOR ELLIS  asked Senator  Green why she  changed her  mind and                                                              
changed the felony charge to a misdemeanor charge.                                                                              
                                                                                                                                
SENATOR GREEN said  after she left the last meeting,  it dawned on                                                              
her that  the real  question is  what is  the appropriate  penalty                                                              
that would  get the desired result  and act as an incentive  for a                                                              
person to cooperate.                                                                                                            
                                                                                                                                
SENATOR  FRENCH   expressed  concern  that  this   is  a  criminal                                                              
prosecution   that   could  be   used   to  punish   someone   for                                                              
discouraging  full   cooperation.    He  provided   the  following                                                              
hypothetical example.   Two department  employees are ready  to go                                                              
home  at 4:30  and  an  LBA auditor  calls  and requests  a  large                                                              
report right  then.  One of  the employees suggests they  say they                                                              
are  too  busy  to  get  to it  today.    That  employee  has  now                                                              
discouraged  the  other  worker  from  fully  cooperating  with  a                                                              
legislative  auditor.   He  said  that  may  seem like  a  trivial                                                              
example,  but that person  could be  prosecuted for  a crime.   He                                                              
said  the real  weapon is  a person's  job.   If a  person is  not                                                              
doing his or her  job and is malingering instead  of making copies                                                              
for an auditor,  that person should be fired.   He maintained that                                                              
no judge  would  put anyone  in jail for  breaking  this law.   He                                                              
said that losing  one's job as a consequence seems to  him to be a                                                              
more realistic approach to the problem.                                                                                         
                                                                                                                                
CHAIR SEEKINS  countered that  he does not  think any  judge would                                                              
convict anyone  of a  crime for  putting off  a request  until the                                                              
following  morning.     He  asked  Senator  French   if  he  would                                                              
prosecute such a case.                                                                                                          
                                                                                                                                
SENATOR FRENCH said  judges do not convict; juries  do. He said he                                                              
frequently  goes before juries  and tells  them their  decision to                                                              
make  is not  whether  this is  a big  or  small violation,  their                                                              
decision is whether the law has been broken.                                                                                    
                                                                                                                                
CHAIR  SEEKINS asked  if  the prosecutor's  office  would take  on                                                              
such a case considering its budget constraints.                                                                                 
                                                                                                                                
SENATOR FRENCH  said it would  not.  He  said the addition  to the                                                              
whistleblower statute is a great improvement.                                                                                   
                                                                                                                                
SENATOR THERRIAULT  said, as past  Chair of the LBA  Committee, he                                                              
would have asked  the auditor whether the report  was provided the                                                              
next day  or whether  the employees  were cooperating.   He  noted                                                              
the  thing  that   differentiates  Legislative  Finance   and  the                                                              
Legislative  Budget and  Audit  Committee  from other  legislative                                                              
committees   is  that   those  shops   are  professional   ongoing                                                              
operations.   The  make-up  of  legislative committees  and  staff                                                              
changes  regularly.    He  asked members  to  recognize  that  the                                                              
directors  of both  agencies  would be  involved  in the  decision                                                              
about whether or not a violation occurred.                                                                                      
                                                                                                                                
SENATOR  GREEN added  that she has  been impressed  that an  audit                                                              
might take  six months to  a year and  information is  not usually                                                              
expected within the same day.                                                                                                   
                                                                                                                                
SENATOR  THERRIAULT  made  a  motion to  move  CSSB  45(JUD)  from                                                              
committee with four  zero fiscal notes and the  understanding that                                                              
committee  staff  would review  the  final  work product  when  it                                                              
comes  back from  the Division  of  Legal Services  and, if  staff                                                              
thinks  it contains  anything more  than what  was discussed,  the                                                              
bill would be brought back before the committee.                                                                                
                                                                                                                                
CHAIR  SEEKINS  announced  that  with  no  objection,  the  motion                                                              
carried.  There  being no  further  business  to come  before  the                                                              
committee, he adjourned the meeting at 3:22 p.m.                                                                                

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