Legislature(2005 - 2006)BUTROVICH 205

03/02/2005 08:30 AM JUDICIARY

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Moved CSSB 104(JUD) Out of Committee
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 2, 2005                                                                                          
                           8:47 a.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Gene Therriault                                                                                                         
Senator French                                                                                                                  
Senator Gretchen Guess                                                                                                          
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 104                                                                                                             
"An Act relating  to the crime of  misrepresenting permanent fund                                                               
dividend eligibility; requiring the  establishment of a permanent                                                               
fund  dividend  fraud investigation  unit  in  the Department  of                                                               
Revenue; and providing for an effective date."                                                                                  
     MOVED CSSB 104(JUD) OUT OF COMMITTEE                                                                                       
SENATE BILL NO. 84                                                                                                              
"An Act relating to the  confidentiality of investigations, court                                                               
hearings, and public agency records  and information in child-in-                                                               
need-of-aid  matters   and  certain  child   protection  matters;                                                               
relating  to  immunity  regarding disclosure  of  information  in                                                               
child-in-  need-of-aid  matters   and  certain  child  protection                                                               
matters; amending  Rules 3 and  22, Alaska  Child in Need  of Aid                                                               
Rules of Procedure; and providing for an effective date."                                                                       
     HEARD AND HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 104                                                                                                                  
SHORT TITLE: PERMANENT FUND DIVIDEND FRAUD                                                                                      
SPONSOR(s): SENATOR(s) SEEKINS                                                                                                  
02/14/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/14/05       (S)       STA, JUD                                                                                               
02/22/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
02/22/05       (S)       Heard & Held                                                                                           
02/22/05       (S)       MINUTE (STA)                                                                                           
02/24/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
02/24/05       (S)       Moved CSSB 104(STA) Out of Committee                                                                   
02/24/05       (S)       MINUTE (STA)                                                                                           
02/28/05       (S)       STA RPT CS 4DP SAME TITLE                                                                              
02/28/05       (S)       DP: THERRIAULT, ELTON, HUGGINS, DAVIS                                                                  
03/01/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/01/05       (S)       Heard & Held                                                                                           
03/01/05       (S)       MINUTE (JUD)                                                                                           
BILL: SB 84                                                                                                                   
SHORT TITLE: CHILD PROTECTION CONFIDENTIALITY                                                                                   
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
01/26/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/26/05       (S)       HES, JUD, FIN                                                                                          
02/07/05       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
02/07/05       (S)       Heard & Held                                                                                           
02/07/05       (S)       MINUTE (HES)                                                                                           
02/09/05       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
02/09/05       (S)       Moved CSSB 84(HES) Out of Committee                                                                    
02/09/05       (S)       MINUTE (HES)                                                                                           
02/14/05       (S)       HES RPT CS 4DP 1NR SAME TITLE                                                                          
02/14/05       (S)       DP: DYSON, ELTON, WILKEN, GREEN                                                                        
02/14/05       (S)       NR: OLSON                                                                                              
02/23/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
02/23/05       (S)       Scheduled But Not Heard                                                                                
02/24/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
02/24/05       (S)       Heard & Held                                                                                           
02/24/05       (S)       MINUTE (JUD)                                                                                           
WITNESS REGISTER                                                                                                              
Ms. Sharon Barton, Director                                                                                                     
Permanent Fund Division                                                                                                         
Department of Revenue                                                                                                           
PO Box 110400                                                                                                                   
Juneau, AK  99811-0400                                                                                                          
POSITION STATEMENT:  Testified in support of SB 104                                                                           
Mr. Dan Boone                                                                                                                   
Department of Revenue                                                                                                           
PO Box 110400                                                                                                                   
Juneau, AK  99811-0400                                                                                                          
POSITION STATEMENT:  Testified in support of SB 104                                                                           
Mr. Chris Poag, Attorney                                                                                                        
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Testified in support of SB 104                                                                           
Ms. Gail Voigtlander, Supervising Attorney                                                                                      
Anchorage Attorney General's office                                                                                             
1031 W. 4 Ave                                                                                                                   
Anchorage, AK 99501                                                                                                             
POSITION STATEMENT:  Commented on SB 84                                                                                       
Ms. Marcie Kennai                                                                                                               
Department of Health & Social Services                                                                                          
PO Box 110601                                                                                                                   
Juneau, AK  99801-0601                                                                                                          
POSITION STATEMENT:  Testified in support of SB 84                                                                            
Ms. Dianne Olson                                                                                                                
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Testified in support of SB 84                                                                            
Mr. Scott Calder                                                                                                                
Fairbanks, AK                                                                                                                   
POSITION STATEMENT:  Testified in opposition of SB 84                                                                         
ACTION NARRATIVE                                                                                                              
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting to  order at 8:47:41 AM.  Present were Senators                                                             
Hollis French,  Charlie Huggins, Gene Therriault,  Gretchen Guess                                                               
and Chair Ralph Seekins.                                                                                                        
              SB 104-PERMANENT FUND DIVIDEND FRAUD                                                                          
8:47:41 AM                                                                                                                    
CHAIR SEEKINS announced SB 104 to be up for consideration.                                                                      
SENATOR HUGGINS moved to adopt Version \I as the working                                                                        
document. With no objections, the motion carried.                                                                               
8:49:13 AM                                                                                                                    
CHAIR SEEKINS asked Sharon Barton to comment on Version \I.                                                                     
MS. SHARON BARTON, director, Permanent  Fund Division (PFD), told                                                               
members  the  legal  drafter  worked   the  PFD  violations  into                                                               
existing law.  The intent  of including  the language  on Section                                                               
10, paragraph (5) is, absent  that language, the court would have                                                               
the option of prosecuting PFD  violations as either a misdemeanor                                                               
or  a felony.  Version \I  clarifies that  PFD violations  can be                                                               
prosecuted under its own section.                                                                                               
MR.  CHRIS POAG,  attorney, Department  of  Law (DOL),  testified                                                               
Section 10,  paragraph (5)  does two  things. An  applicant might                                                               
submit  documentation  to accompany  an  application  to the  PFD                                                               
division.  However,  a  person  might  also  be  contacted  by  a                                                               
division employee  and provide  information verbally.  Section 10                                                               
addresses  phone  representations  because  currently  falsifying                                                               
information   on  the   phone  is   not  covered   under  unsworn                                                               
falsification. He  recommended changing the reference  on line 31                                                               
from AS 11.56.210 to AS 11.56.205.                                                                                              
8:52:13 AM                                                                                                                    
CHAIR  SEEKINS asked  whether  that change  would  mean a  person                                                               
convicted  of   a  felony  could   not  be  found  guilty   of  a                                                               
MR. POAG explained:                                                                                                             
     If  you submit  an  application and  it contains  false                                                                    
     information,  that's a  written or  recorded statement.                                                                    
     If  you call  the PFD  division on  the phone  and make                                                                    
     representations over  the phone -  oral representations                                                                    
     -  those   oral  representations  don't   constitute  a                                                                    
     violation  of  the  felony  act.   But  those  are  two                                                                    
     separate  acts  that  could be  two  separate  criminal                                                                    
     offenses, one being oral representation.                                                                                   
SENATOR  THERRIAULT asked  if  the  DOL wants  to  make sure  the                                                               
written violation should not be prosecuted as a misdemeanor.                                                                    
MR. POAG answered correct. He said  as the bill is written, there                                                               
is the  potential ambiguity that false  information could include                                                               
that written or recorded statement.                                                                                             
SENATOR THERRIAULT proposed Amendment 1:                                                                                        
     Page  4, line  31, delete  AS 11.56.210  and insert  AS                                                                    
With no objections, Amendment 1 was adopted.                                                                                    
8:53:47 AM                                                                                                                    
CHAIR SEEKINS asked  Ms. Barton if SB 104 gives  the PFD division                                                               
the ability to access the databases.                                                                                            
MS. BARTON said she did not know.                                                                                               
CHAIR SEEKINS advised the intent of  the committee was to pass SB                                                               
104 out of committee.                                                                                                           
SENATOR  GUESS  asked  Ms. Barton  whether  a  false  application                                                               
representing a child was covered.                                                                                               
MS. BARTON answered yes.                                                                                                        
8:55:26 AM                                                                                                                    
SENATOR  FRENCH asked  the number  of prosecutions  that occurred                                                               
last year.                                                                                                                      
MS. BARTON said there were  no state prosecutions and one federal                                                               
SENATOR  FRENCH asked  whether there  were no  state prosecutions                                                               
because the felony charge was not available.                                                                                    
MS. BARTON said the main reason  was the lack of such a provision                                                               
in the  statute. The federal  government is currently  attuned to                                                               
social security, mail  and wire fraud and so it  has two or three                                                               
Alaska cases under consideration.                                                                                               
8:57:34 AM                                                                                                                    
MR. POAG  said Alaska had one  state indictment but as  part of a                                                               
plea agreement there was no conviction for the PFD fraud charge.                                                                
SENATOR FRENCH asked Ms. Barton who would investigate PFD fraud.                                                                
MS. BARTON  advised that  chief investigator  Dan Boone  would be                                                               
8:59:12 AM                                                                                                                    
MR.  DAN   BOONE,  investigator,   Department  of   Revenue,  PFD                                                               
Division,  advised  the  committee  the  division  submitted  two                                                               
cases.  One  was  declined  and was  prosecuted  by  the  federal                                                               
government,  resulting  in  a  conviction.  The  other  case  was                                                               
resolved to a felony DUI  and the fraud convictions were dropped.                                                               
Currently the division is using  the federal government to obtain                                                               
prosecutions   because  state   law  does   not  provide   enough                                                               
enforcement power.                                                                                                              
CHAIR  SEEKINS asked  Mr.  Boone  the number  of  fraud cases  he                                                               
expects to investigate.                                                                                                         
MR.  BOONE indicated  ample opportunity  for prosecution.  Out of                                                               
the 1,600 fraud  tips the dividend received,  48 percent resulted                                                               
in an action.  SB 104 would mainly be used  to educate the public                                                               
and deter  people from falsifying  statements. The DOR  is headed                                                               
toward  using  online  applications  and  electronic  signatures,                                                               
which are  hard to  investigate. Educating the  public will  be a                                                               
priority,  as the  division  wants to  deter  people from  filing                                                               
false applications by  letting them know beforehand  they will be                                                               
committing a felony.                                                                                                            
9:02:09 AM                                                                                                                    
CHAIR SEEKINS asked  Ms. Barton how the public  would be notified                                                               
regarding falsifying applications.                                                                                              
MS. BARTON replied the  application contains conspicuous language                                                               
regarding consequences  of falsification.  That language  will be                                                               
"beefed up" if this law passes.                                                                                                 
SENATOR  HUGGINS  voiced  concern   about  college  students  and                                                               
military personnel  because of additional hurdles  they must pass                                                               
when applying for a dividend,  especially time delays experienced                                                               
by overseas military personnel.                                                                                                 
9:03:47 AM                                                                                                                    
MS.  BARTON said  students  submit a  form  from the  registrar's                                                               
office to  certify enrollment.  The division  is also  attuned to                                                               
the special needs of military  personnel and is liberal with time                                                               
extensions for  both students and  military personnel.  She noted                                                               
that  even  after  denial,  the  division  would  reconsider  the                                                               
circumstances. A  power of attorney can  also be used to  file an                                                               
application.  She  noted  a  new  law  passed  last  year  allows                                                               
military personnel to apply an  additional 90 days after they are                                                               
removed from an area where they receive combat pay.                                                                             
9:08:04 AM                                                                                                                    
SENATOR  HUGGINS asked  Ms.  Barton the  number  of students  and                                                               
military personnel who are not getting their dividends.                                                                         
MS. BARTON advised small numbers  of people are denied because of                                                               
inability  to  provide  proper  documentation.  The  majority  of                                                               
problems occur because people lose their documentation.                                                                         
9:10:26 AM                                                                                                                    
CHAIR  SEEKINS asked  whether it  was  an automatic  disqualifier                                                               
when someone moves to another state.                                                                                            
MS.  BARTON  replied  there  is   no  simple  question  regarding                                                               
eligibility.  Registering  to  vote  or applying  for  a  fishing                                                               
license in another  state disqualifies a person  from receiving a                                                               
SENATOR  HUGGINS commented  military personnel  are eligible  for                                                               
resident hunting and  fishing licenses in other  states. He hoped                                                               
that does not disqualify them.                                                                                                  
9:13:31 AM                                                                                                                    
CHAIR SEEKINS said he knows people  who never intend to come back                                                               
but draw a PFD.                                                                                                                 
SENATOR  FRENCH  asked  Mr.  Boone  the  number  of  total  cases                                                               
referred out of the division.                                                                                                   
MR. BOONE replied  that the division's goal is to  get money back                                                               
to the  state, not  to prosecute.  However, some  egregious cases                                                               
need to be prosecuted.                                                                                                          
9:17:43 AM                                                                                                                    
CHAIR SEEKINS asked Ms. Barton  whether she was satisfied with SB                                                               
MS. BARTON answered yes.                                                                                                        
SENATOR  THERRIAULT moved  CSSB  104(JUD) out  of committee  with                                                               
individual recommendations and zero  fiscal notes. There being no                                                               
objections, CSSB 104(JUD) passed out of committee.                                                                              
CHAIR SEEKINS announced a brief recess at 9:19:29 AM.                                                                         
CHAIR SEEKINS reconvened the meeting at 9:31:50 AM.                                                                           
             SB 84-CHILD PROTECTION CONFIDENTIALITY                                                                         
9:31:50 AM                                                                                                                    
CHAIR SEEKINS announced SB 84 to be up for consideration.                                                                       
SENATOR  HUGGINS  moved  to  adopt  Version  \F  as  the  working                                                               
document. Hearing no objections, the motion carried.                                                                            
CHAIR SEEKINS  asked Gail Voigtlander  to brief the  committee on                                                               
the immunity section of SB 84.                                                                                                  
MS.  GAIL VOIGTLANDER,  supervising attorney,  Anchorage Attorney                                                               
General's  Office,  introduced  the  changes  to  the  bill.  She                                                               
understood  the committee  was concerned  about  immunity in  the                                                               
original  Section  14. She  admitted  it  is difficult  to  draft                                                               
immunity  language.  The  substitute language  in  the  committee                                                               
substitute  is  designed to  ensure  defendants  move to  summary                                                               
judgment. The people at risk are court system employees.                                                                        
9:38:26 AM                                                                                                                    
SENATOR THERRIAULT asked where the other immunity section was.                                                                  
MS. VOIGTLANDER replied AS 47.35.810.                                                                                           
SENATOR THERRIAULT noted the new  language in Section 14 sets the                                                               
bar very high.                                                                                                                  
9:40:50 AM                                                                                                                    
SENATOR  FRENCH shared  Senator Therriault's  concern. He  voiced                                                               
disappointment   that   the   amendment  didn't   exclude   gross                                                               
negligence. However, the  jury will have to  review whether gross                                                               
negligence occurred.                                                                                                            
CHAIR SEEKINS advised he is open to amending the bill.                                                                          
SENATOR  THERRIAULT referred  to AS  09.50.250 and  AS 09.50.253,                                                               
both  of  which  address  immunity   clauses.  He  suggested  the                                                               
committee look  at other immunity  clauses, which are  already in                                                               
the statutes.                                                                                                                   
CHAIR SEEKINS  asked if other  areas in the statutes  cover state                                                               
SENATOR THERRIAULT  answered AS 09.50.253 specifically  refers to                                                               
state employees.                                                                                                                
9:44:22 AM                                                                                                                    
CHAIR  SEEKINS said  the umbrella  includes  municipal and  state                                                               
SENATOR  THERRIAULT   commented  AS   47.35.810  says   a  person                                                               
operating  under agreement  with  the department  is immune  from                                                               
civil liability.                                                                                                                
9:45:07 AM                                                                                                                    
SENATOR  FRENCH   offered  to   have  the   Legislative  Research                                                               
Department do  a summary  of the immunity  clauses in  the Alaska                                                               
statutes to make sure the standards all mesh.                                                                                   
CHAIR SEEKINS said he understands  the importance of indemnifying                                                               
employees who need  to work within the scope  of their employment                                                               
and the legitimate best interest of the child.                                                                                  
9:47:27 AM                                                                                                                    
SENATOR THERRIAULT said malice is intentional.                                                                                  
CHAIR SEEKINS suggested  asking the drafter to  make sure Section                                                               
14  sets the  same  standard  as that  for  other state  employee                                                               
immunities, and also includes municipal employees.                                                                              
9:48:33 AM                                                                                                                    
MR. SCOTT CALDER  testified the purpose of SB 84  is sided toward                                                               
the Department  of Health and  Social Services (DHSS).  The image                                                               
problem that DHSS has is  self-imposed. State liability is a good                                                               
discussion  to have.  Negative instances  occur  within DHSS.  He                                                               
voiced concern  that DHSS  is able  to run the  show. He  said he                                                               
does not  trust DHSS to divulge  the truth and the  public is not                                                               
able to correct any false information that may be exposed.                                                                      
9:54:02 AM                                                                                                                    
MR. CALDER  said parents  should be able  to obtain  and evaluate                                                               
any information  that DHSS has.  Many parents have been  shut out                                                               
of the process. The committee  must carefully consider any matter                                                               
where a child is held by the state.                                                                                             
9:57:12 AM                                                                                                                    
SENATOR  THERRIAULT  reviewed SB  84  for  drafting purposes  and                                                               
pointed  out that  Section 11  needs clarification  as to  who is                                                               
covered with immunity.                                                                                                          
Ms. DIANNE  OLSON, senior attorney, Anchorage  Attorney General's                                                               
office,  explained  Section 11  was  read  together with  another                                                               
SENATOR THERRIAULT said he wanted to make sure it was standard.                                                                 
CHAIR  SEEKINS  perceived  it   allows  sharing  of  confidential                                                               
information to people with a legitimate interest.                                                                               
MS. OLSON said  there are no regulations pertaining to  who has a                                                               
legitimate interest.                                                                                                            
SENATOR  GUESS  asked  Ms.  Olson why  Section  3,  lines  18-26,                                                               
doesn't include other parties.                                                                                                  
MS. OLSON answered  under AS 47.10 the person to  be protected is                                                               
the child. The minor is the  subject of the chapter. The concerns                                                               
that Senator Guess referenced could be brought up in court.                                                                     
10:01:50 AM                                                                                                                   
SENATOR GUESS asked Ms. Olson if the courts have leeway.                                                                        
MS. OLSON replied yes.                                                                                                          
SENATOR  GUESS asked  why the  guardian ad  litem was  removed on                                                               
Page 5, line 24.                                                                                                                
MS. OLSON  answered guardian  ad litem  are included  through the                                                               
court rules process.                                                                                                            
SENATOR FRENCH  said Section 4  has a new subsection  that allows                                                               
more open hearings  in child in need of aide  (CINA) cases unless                                                               
another section applies, closing  the hearing. Section 6 suggests                                                               
sealing records after 30 days.  He questioned sealing the records                                                               
of an open court proceeding.                                                                                                    
10:04:16 AM                                                                                                                   
MS. OLSON said Section 6 pertains  to the actual court records of                                                               
the  child. There  is a  difference  between the  recording of  a                                                               
hearing and the documents of a court case.                                                                                      
SENATOR  FRENCH said  he does  not understand  why an  open court                                                               
proceeding should later be closed.                                                                                              
MS. OLSON explained if the  court started opening records, people                                                               
would be able to view all  the documents within the file. Some of                                                               
those documents are sensitive.                                                                                                  
10:07:23 AM                                                                                                                   
SENATOR  FRENCH   advised  he   would  consider  working   on  an                                                               
MS.  MARCIE KENNAI,  Department  of Health  and Social  Services,                                                               
said the department looked at  opening the court records, but the                                                               
intent  is to  ensure that  family and  child confidentiality  is                                                               
maintained.  DHSS has  to submit  items to  the court  such as  a                                                               
mental   health  assessment,   a  person's   HIV  status   and/or                                                               
participation  in substance  abuse  treatment.  The entire  court                                                               
document would not necessarily come out in a hearing.                                                                           
SENATOR   GUESS  asked   Ms.   Kennai   whether  DHSS   discussed                                                               
consideration of a sunset.                                                                                                      
10:10:36 AM                                                                                                                   
MS. KENNAI  replied no.  The department  looked at  other states'                                                               
laws; 18  have open  hearings. There is  public interest  only in                                                               
very high profile cases.                                                                                                        
CHAIR SEEKINS saw  there were no other questions.  He advised the                                                               
committee they  would further review  SB 84 in the  next meeting.                                                               
The intent is to have the same level of immunity standardized.                                                                  
SENATOR THERRIAULT suggested authorizing  the drafter to converse                                                               
with the Department of Law.                                                                                                     
There being  no further  business to  come before  the committee,                                                               
Chair Seekins adjourned the meeting at 10:13:48 AM.                                                                           

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