Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/30/2012 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 224 EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE TELECONFERENCED
Heard & Held
+ HB 56 INCLUDE ARSON IN CRIMES OF CONSPIRACY TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 6 REMOVING A REGENT TELECONFERENCED
Scheduled But Not Heard
+= SB 198 POLICE OFFICER PROTECTIONS/CERTIFICATION TELECONFERENCED
Scheduled But Not Heard
+= SB 138 THIRD-PARTY CHARGES ON TELEPHONE BILLS TELECONFERENCED
Moved CSSB 138(JUD) Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 30, 2012                                                                                         
                           1:35 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                            
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Bill Wielechowski, Vice Chair                                                                                           
Senator John Coghill                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Lesil McGuire                                                                                                           
Senator Joe Paskvan                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                              
SENATE BILL NO. 138                                                                                                             
"An Act relating  to the inclusion of the charges  of a vendor of                                                               
goods  or services  on the  bills  of certain  telecommunications                                                               
carriers; and adding  an unlawful act to the  Alaska Unfair Trade                                                               
Practices and Consumer Protection Act."                                                                                         
                                                                                                                                
     - MOVED CSSB 138(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 56                                                                                                               
"An Act making arson in the  first degree and arson in the second                                                               
degree serious felonies for purposes  of application of the crime                                                               
of conspiracy."                                                                                                                 
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 224                                                                                                             
"An   Act  making   privileged  certain   communications  between                                                               
employees and  employee union representatives; and  amending Rule                                                               
402 and Rule 501, Alaska Rules of Evidence."                                                                                    
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
CS FOR HOUSE BILL NO. 6(JUD) am                                                                                                 
"An Act  authorizing the governor  to remove or suspend  a member                                                               
of the  Board of  Regents of  the University  of Alaska  for good                                                               
cause;  and   establishing  a  procedure   for  the   removal  or                                                               
suspension of a regent."                                                                                                        
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
SENATE BILL NO. 198                                                                                                             
"An   Act   establishing   procedures   relating   to   issuance,                                                               
suspension, or revocation of certification  of police officers by                                                               
the  police  standards  council;  making  certain  court  service                                                               
officers  subject  to  certification   by  the  police  standards                                                               
council; making confidential  certain information that personally                                                               
identifies a police officer; relating  to requesting or requiring                                                               
police  officers to  submit to  lie detector  tests; repealing  a                                                               
provision exempting  certain police  officers from  a prohibition                                                               
against  requiring certain  employees to  submit to  lie detector                                                               
tests; and providing for an effective date."                                                                                    
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 138                                                                                                                  
SHORT TITLE: THIRD-PARTY CHARGES ON TELEPHONE BILLS                                                                             
SPONSOR(s): WIELECHOWSKI, DAVIS, EGAN                                                                                           
                                                                                                                                
01/17/12       (S)       PREFILE RELEASED 1/6/12                                                                                
01/17/12       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/17/12       (S)       L&C, JUD                                                                                               
02/02/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/02/12       (S)       Heard & Held                                                                                           
02/02/12       (S)       MINUTE(L&C)                                                                                            
02/23/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/23/12       (S)       <Bill Hearing Postponed>                                                                               
02/28/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/28/12       (S)       Moved CSSB 138(L&C) Out of Committee                                                                   
02/28/12       (S)       MINUTE(L&C)                                                                                            
02/29/12       (S)       L&C RPT CS  3DP 2NR      SAME TITLE                                                                    
02/29/12       (S)       DP: EGAN, DAVIS, PASKVAN                                                                               
02/29/12       (S)       NR: GIESSEL, MENARD                                                                                    
03/23/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/23/12       (S)       Heard & Held                                                                                           
03/23/12       (S)       MINUTE(JUD)                                                                                            
03/26/12       (S)       JUD AT 2:00 PM BELTZ 105 (TSBldg)                                                                      
03/26/12       (S)       Heard & Held                                                                                           
03/26/12       (S)       MINUTE(JUD)                                                                                            
03/30/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: SB 224                                                                                                                  
SHORT TITLE: EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE                                                                           
SPONSOR(s): LABOR & COMMERCE                                                                                                    
                                                                                                                                
03/05/12       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/05/12       (S)       L&C, JUD                                                                                               
03/20/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/20/12       (S)       Heard & Held                                                                                           
03/20/12       (S)       MINUTE(L&C)                                                                                            
03/22/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/22/12       (S)       Moved SB 224 Out of Committee                                                                          
03/22/12       (S)       MINUTE(L&C)                                                                                            
03/23/12       (S)       L&C RPT  4DP                                                                                           
03/23/12       (S)       DP: EGAN, DAVIS, MENARD, PASKVAN                                                                       
03/30/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: HB  56                                                                                                                  
SHORT TITLE: INCLUDE ARSON IN CRIMES OF CONSPIRACY                                                                              
SPONSOR(s): GATTO, GRUENBERG, LYNN                                                                                              
                                                                                                                                
01/18/11       (H)       PREFILE RELEASED 1/7/11                                                                                
01/18/11       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/18/11       (H)       JUD, FIN                                                                                               
02/18/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/18/11       (H)       -- MEETING CANCELED --                                                                                 
02/21/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/21/11       (H)       Moved Out of Committee                                                                                 
02/21/11       (H)       MINUTE(JUD)                                                                                            
02/23/11       (H)       JUD RPT 3DP 2NR                                                                                        
02/23/11       (H)       DP: LYNN, GRUENBERG, GATTO                                                                             
02/23/11       (H)       NR: KELLER, PRUITT                                                                                     
02/22/12       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
02/22/12       (H)       Moved Out of Committee                                                                                 
02/22/12       (H)       MINUTE(FIN)                                                                                            
02/24/12       (H)       FIN RPT 1DP 8NR                                                                                        
02/24/12       (H)       DP: GARA                                                                                               
02/24/12       (H)       NR:   T.WILSON,    NEUMAN,   FAIRCLOUGH,                                                               
                         COSTELLO,   EDGMON,   DOOGAN,   STOLTZE,                                                               
                         THOMAS                                                                                                 
03/06/12       (H)       TRANSMITTED TO (S)                                                                                     
03/06/12       (H)       VERSION: HB 56                                                                                         
03/12/12       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/12/12       (S)       JUD, FIN                                                                                               
03/30/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
THOMAS PRESLEY, Intern                                                                                                          
Senator Bill Wielechowski                                                                                                       
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Explained the proposed changes to SB 138.                                                                 
                                                                                                                                
BOB LOHR, Executive Director                                                                                                    
Alaska Center for Public Policy                                                                                                 
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Testified in support of SB 138.                                                                           
                                                                                                                                
REPRESENTATIVE MAX GRUENBERG                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Prime sponsor of HB 56.                                                                                   
                                                                                                                                
MILES BROOKES, Staff                                                                                                            
Representative Max Gruenberg                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Introduced HB 56 on behalf of the sponsor.                                                                
                                                                                                                                
ANNE CARPENETI, Assistant District Attorney                                                                                     
Criminal Division                                                                                                               
Legal Services Section                                                                                                          
Department of Law (DOL)                                                                                                         
Juneau, AK                                                                                                                      
POSITION STATEMENT: Provided information and answered questions                                                               
related to HB 56.                                                                                                               
                                                                                                                                
DAN JAGER, Fire Marshall                                                                                                        
Capital City Fire/Rescue                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Testified in support of HB 56.                                                                            
                                                                                                                                
DANA OWEN, Staff                                                                                                                
Senate Labor and Commerce Committee                                                                                             
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Introduced SB 224.                                                                                        
                                                                                                                                
JOHN PTACIN, Assistant Attorney General                                                                                         
Civil Division                                                                                                                  
Labor and State Affairs Section                                                                                                 
Department of Law (DOL)                                                                                                         
POSITION STATEMENT: Testified in opposition to SB 224.                                                                        
                                                                                                                                
DOUGLAS MERTZ, Attorney                                                                                                         
Juneau, AK                                                                                                                      
POSITION STATEMENT: Testified in support of SB 224.                                                                           
                                                                                                                                
KATE SHEEHAN, Deputy Director                                                                                                   
Personnel and Labor Relations                                                                                                   
Department of Administration                                                                                                    
Juneau, AK                                                                                                                      
POSITION STATEMENT: Testified on SB 224, focusing on Section 2.                                                               
                                                                                                                                
STEVEN SORENSON, Attorney                                                                                                       
Juneau, AK                                                                                                                      
POSITION STATEMENT: Testified in support of SB 224.                                                                           
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:35:21 PM                                                                                                                    
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:35  p.m. Present at the  call to                                                               
order were Senators Coghill, Wielechowski, and Chair French.                                                                    
                                                                                                                                
         SB 138-THIRD-PARTY CHARGES ON TELEPHONE BILLS                                                                      
                                                                                                                                
1:36:38 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 138 and asked for                                                               
a  motion  to  adopt  the  proposed  committee  substitute  (CS),                                                               
version U.                                                                                                                      
                                                                                                                                
1:36:47 PM                                                                                                                    
SENATOR WIELECHOWSKI moved to adopt  the committee substitute for                                                               
SB 138, labeled 27-LS1002\U, as the working document.                                                                           
                                                                                                                                
CHAIR  FRENCH announced  that without  objection,  version U  was                                                               
before the committee.                                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI,  speaking as  the sponsor  of SB  138, said                                                               
Mr. Presley would present the CS.                                                                                               
                                                                                                                                
1:37:40 PM                                                                                                                    
THOMAS PRESLEY,  Intern to Senator Bill  Wielechowski, sponsor of                                                               
SB 138,  said version  U incorporates  the three  amendments that                                                               
the Alaska  Communication Service  (ACS) offered during  the last                                                               
hearing.                                                                                                                        
                                                                                                                                
Subsection  (c) on  page 2,  lines 11-15,  contains new  language                                                               
that says  that a customer  who contests  a charge on  their bill                                                               
must  inform the  telecommunications  carrier,  either orally  or                                                               
electronically, of the reason for nonpayment.                                                                                   
                                                                                                                                
New   subsection  (d)   on  page   2,  lines   17-19,  allows   a                                                               
telecommunications carrier  to recover from  third-party vendors,                                                               
reasonable  costs incurred  in  implementing  billing changes  or                                                               
otherwise complying with Sec. 42.05.715.                                                                                        
                                                                                                                                
New   subsection  (d)   on  page   [3],  lines   28-30,  absolves                                                               
telecommunications carriers  of the duty to  verify independently                                                               
the accuracy  of information  received from  a person  or billing                                                               
under this section.                                                                                                             
                                                                                                                                
MR. PRESLEY  said he  forwarded a  copy of the  new CS  to Alaska                                                               
Communication Services  (ACS) and he anticipated  their approval.                                                               
He informed the committee that  both Verizon and AT&T voluntarily                                                               
pledged to  discontinue, by August,  billing for  all third-party                                                               
enhanced services that are not telephone related.                                                                               
                                                                                                                                
1:40:17 PM                                                                                                                    
BOB LOHR,  Executive Director, Alaska  Center for  Public Policy,                                                               
stated support for  SB 138 and relayed that he  was speaking as a                                                               
former executive director of the  Public Utilities Commission and                                                               
a former  chief insurance regulator  for the State of  Alaska. He                                                               
described  the  legislation  as  timely  and  important  consumer                                                               
protection. He  disputed the notion that  third-party billing was                                                               
important  to consumers  to reduce  costs and  expand competitive                                                               
choice because  this was not  an effectively  competitive market.                                                               
Two assumptions  that economists  make about  competitive markets                                                               
are  that there  is perfect  information available  and there  is                                                               
zero transaction cost.  Both are demonstrably untrue  in the case                                                               
of   third-party  non-telephone   charges  on   telecommunication                                                               
billings.                                                                                                                       
                                                                                                                                
MR. LOHR said  SB 138 was good legislation, but  he was concerned                                                               
with  the latest  amendments  because they  added  an element  of                                                               
"blame the  victim." If a  customer has a  bill of $50  for local                                                               
exchange  service and  $25 for  charges  that he  or she  doesn't                                                               
recognize, the  intent is  quite clear if  the customer  pays $50                                                               
even if there  isn't a written instruction on the  bill as to how                                                               
to allocate the charge.                                                                                                         
                                                                                                                                
MR. LOHR  said he  was heartened  to hear  that both  Verizon and                                                               
AT&T recognize that this was  a genuine issue. He reiterated that                                                               
the legislation was still vitally necessary.                                                                                    
                                                                                                                                
SENATOR  WIELECHOWSKI  said his  office  worked  hard to  satisfy                                                               
everyone concerned and a better bill resulted.                                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI  moved to report  CS for SB 138,  version U,                                                               
from  committee  with  individual  recommendations  and  attached                                                               
fiscal note(s).                                                                                                                 
                                                                                                                                
CHAIR  FRENCH  announced  that without  objection  CSSB  138(JUD)                                                               
moved from the Senate Judiciary Standing Committee.                                                                             
                                                                                                                                
At ease from 1:47 p.m. to 1:48 p.m.                                                                                             
                                                                                                                                
          HB  56-INCLUDE ARSON IN CRIMES OF CONSPIRACY                                                                      
                                                                                                                                
1:48:14 PM                                                                                                                    
CHAIR FRENCH announced the consideration of HB 56.                                                                              
                                                                                                                                
REPRESENTATIVE MAX  GRUENBERG, prime sponsor  of HB 56,  said his                                                               
staff  member would  present the  bill, which  adds arson  in the                                                               
first degree  and arson  in the second  degree to  the conspiracy                                                               
statute.                                                                                                                        
                                                                                                                                
1:48:49 PM                                                                                                                    
MILES BROOKES, staff to  Representative Max Gruenberg, introduced                                                               
HB 56 by speaking to the following sponsor statement:                                                                           
                                                                                                                                
     House Bill  56 adds  first and  second degree  arson to                                                                    
     Alaska's conspiracy statute,  which will provide strong                                                                    
     deterrents to committing arson and  close a loophole in                                                                    
     current  law.  HB  56  was   drafted  after  it  became                                                                    
     apparent during  a committee hearing last  session that                                                                    
     arson is not currently  included in Alaska's conspiracy                                                                    
     statute.  Because  of  this,   arsonists  may  only  be                                                                    
     charged  with a  crime  if the  arson  is attempted  or                                                                    
     completed,  and   they  cannot  be  charged   with  the                                                                    
     separate crime of conspiracy if  two or more people are                                                                    
     involved in  the arson. This  bill only adds  first and                                                                    
     second  degree arson  [to the  list  of serious  felony                                                                    
     offenses for which  a person could be  charged with the                                                                    
     crime of conspiracy.]                                                                                                      
                                                                                                                                
         ¾Conspiracy: an agreement by two or more people to                                                                    
           commit a crime with at least one overt act                                                                           
           committed towards the completion of the crime.                                                                       
         ¾Arson in the first degree: damaging property by                                                                      
           fire or explosion and recklessly placing another                                                                     
           person (including emergency personnel) in danger                                                                     
          or serious physical injury. (Class A Felony)                                                                          
         ¾Arson in the second degree: knowingly damages a                                                                      
           building by fire or explosion. (Class B Felony)                                                                      
         ¾Conspiracy to commit a Class A Felony (Arson One)                                                                    
           is a Class B Felony.                                                                                                 
         ¾Conspiracy to commit a Class B Felony (Arson Two)                                                                    
           is a Class C Felony.                                                                                                 
                                                                                                                                
      HB 56 will fix those  problems. Including arson in the                                                                    
      conspiracy statute will  provide stronger punishments,                                                                    
      whether  or  not  conspirators actually  complete  the                                                                    
      arson.  Under  HB  56,  if  arson  is  committed,  the                                                                    
      conspiring arsonists can [be]  charged with both arson                                                                    
      and  conspiracy,  rather  than just  arson  under  the                                                                    
      current law.  If the arson is  not completed, however,                                                                    
      this  bill will  allow conspirators  to be  prosecuted                                                                    
      for  conspiracy   to  commit   arson,  which   is  not                                                                    
      punishable under current law.                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG  added  that  a  charge  of  conspiracy                                                               
requires  a   criminal  agreement   and  one  act   towards  that                                                               
agreement.  He highlighted  that much  less of  an actus  reus is                                                               
required than for  an attempt, which requires  a substantial step                                                               
towards the final crime.                                                                                                        
                                                                                                                                
CHAIR FRENCH asked  Ms. Carpeneti to remind the  committee of the                                                               
difference between attempt and conspiracy.                                                                                      
                                                                                                                                
1:51:40 PM                                                                                                                    
ANNE CARPENETI,  Assistant District Attorney,  Criminal Division,                                                               
Legal Services  Section, Department of Law  (DOL), explained that                                                               
the elements of conspiracy are  an agreement between at least two                                                               
people with  the specific intent to  commit a crime, and  one act                                                               
in furtherance of that agreement.                                                                                               
                                                                                                                                
CHAIR  FRENCH   recalled  that  there  could   not  be  attempted                                                               
conspiracy.                                                                                                                     
                                                                                                                                
MS. CARPENETI agreed.                                                                                                           
                                                                                                                                
CHAIR FRENCH asked  why Alaska law had a specific  list of crimes                                                               
that can be subject to a conspiracy charge.                                                                                     
                                                                                                                                
MS.  CARPENETI explained  that when  the Legislature  revised the                                                               
criminal  code  in 1978  it  decided  not  to have  a  conspiracy                                                               
provision in  the substantive criminal  law. In the  early 1980s,                                                               
the  Legislature  changed  its   collective  mind  and  passed  a                                                               
conspiracy  provision that  was limited  to certain  very serious                                                               
crimes,  each of  which  would more  likely  happen by  agreement                                                               
among people.                                                                                                                   
                                                                                                                                
CHAIR FRENCH commented  that there can't be  conspiracy to commit                                                               
theft, for example.                                                                                                             
                                                                                                                                
MS. CARPENETI  agreed, and added  that the least  serious offense                                                               
on the list of crimes that  can be subject to a conspiracy charge                                                               
is a  class B  felony. HB 56  would add a  class A  felony crime,                                                               
[arson in  the first degree] and  a class B felony  crime, [arson                                                               
in the second degree].                                                                                                          
                                                                                                                                
1:53:47 PM                                                                                                                    
SENATOR  COGHILL  asked  about  the  difference  between  proving                                                               
attempted arson versus conspiracy to commit arson.                                                                              
                                                                                                                                
MS. CARPENETI explained that to  prove conspiracy to commit arson                                                               
the evidence  would have to show,  for example, that two  or more                                                               
people conspired  and agreed to burn  a building to make  a claim                                                               
for  insurance. The  evidence would  also  have to  show that  in                                                               
furtherance of  that agreement,  one or more  of the  people went                                                               
out and purchased  incendiary materials. The two  acts together -                                                               
the agreement  to burn the  building and  the purchase of  fuel -                                                               
prove conspiracy.                                                                                                               
                                                                                                                                
An example  of attempted arson would  be a person who  decides to                                                               
burn his  or her  house for insurance.  The person  purchased the                                                               
fuel, spread it  around the house, and lit a  match, but for some                                                               
reason the  fire did not catch  and the house was  not destroyed.                                                               
To prove attempted arson, proof of specific intent is required.                                                                 
                                                                                                                                
SENATOR  COGHILL asked  if a  charge  of conspiracy  would be  in                                                               
addition to other charges.                                                                                                      
                                                                                                                                
MS.  CARPENETI  replied it  depends,  but  it  is unique  to  the                                                               
conspiracy law that a person  can be convicted of both conspiracy                                                               
and  the completed  crime. The  probable rationale  is that  once                                                               
people agree to  commit a crime, it's more likely  to happen than                                                               
if just one person thinks about it.                                                                                             
                                                                                                                                
SENATOR  COGHILL  commented that  if  somebody  was suspected  of                                                               
arson,  an investigation  would  likely ensue  to  look for  some                                                               
conspiratorial action.                                                                                                          
                                                                                                                                
MS.  CARPENETI said  yes  and reiterated  that  these crimes  are                                                               
difficult to prove and the prosecutions are rare.                                                                               
                                                                                                                                
1:57:19 PM                                                                                                                    
DAN JAGER,  Fire Marshall, Capital City  Fire/Rescue, Juneau, AK,                                                               
testified in support of HB 56.  He informed the committee that he                                                               
was  a  member  of  the  Alaska Association  of  Fire  and  Arson                                                               
Investigators  and had  actively  investigated  fires across  the                                                               
state for  10 years. He said  the crime of arson  is difficult to                                                               
investigate and  catching the person responsible  is even harder.                                                               
The  2011  statistics   for  Juneau  show  more   than  30  fires                                                               
classified as  arson or suspicious  in nature, and  suspects have                                                               
been identified in just three cases.                                                                                            
                                                                                                                                
MR. JAGER said it was  his experience that arson usually involves                                                               
planning and  execution by  more than  one person.  Under current                                                               
law,  arsonists can  only be  charged with  a crime  if arson  is                                                               
completed or  attempted, and attempted arson  requires proof that                                                               
a substantial step towards arson  occurred. Without HB 56, two or                                                               
more  people  who conspire  and  act  to  commit arson  can't  be                                                               
charged with  conspiracy. Passing the bill  will provide stronger                                                               
punishment whether or not the conspirators complete the arson.                                                                  
                                                                                                                                
2:00:00 PM                                                                                                                    
REPRESENTATIVE GRUENBERG supplemented  Ms. Carpeneti's history of                                                               
the conspiracy statute  and said he didn't know  why arson wasn't                                                               
included when the statute passed initially.                                                                                     
                                                                                                                                
CHAIR FRENCH closed public testimony  and announced he would hold                                                               
HB 56 in committee.                                                                                                             
                                                                                                                                
        SB 224-EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE                                                                     
                                                                                                                                
2:02:09 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 224.                                                                             
                                                                                                                                
2:02:18 PM                                                                                                                    
DANA  OWEN, staff  to the  Senate Labor  and Commerce  Committee,                                                               
sponsor  of  SB 224,  introduced  the  bill  by speaking  to  the                                                               
following sponsor statement:                                                                                                    
                                                                                                                                
     Senate   Bill  224   seeks   to  protect   confidential                                                                    
     information  acquired  by  an agent  of  an  employee's                                                                    
     union  in   the  course  of  providing   that  employee                                                                    
     advocacy  services relating  to anticipated  or ongoing                                                                    
     disciplinary  proceedings. Without  the expectation  of                                                                    
     confidentiality,  union  members  are  hesitant  to  be                                                                    
     fully  forthcoming  to their  representative,  severely                                                                    
     hampering  the  union  agent's ability  to  advise  and                                                                    
     represent the member and denying  the employee the full                                                                    
     and effective advocacy to which she or he is entitled.                                                                     
                                                                                                                                
     The  bill   provides  exceptions  to   this  privilege,                                                                    
     including  being  ordered  by  the  court  to  disclose                                                                    
     information concerning  the commission  of a  crime, or                                                                    
     if the  employee consents to  the disclosure.  The bill                                                                    
     also provides that where federal  or state law preempts                                                                    
     or conflicts  with this act,  the federal or  state law                                                                    
     prevails to the extent of the preemption or conflict.                                                                      
                                                                                                                                
MR. OWEN highlighted that communications  between an agent of the                                                               
union  and a  union  member are  privileged if  the  agent is  an                                                               
attorney.  SB  224   seeks  to  grant  the   same  protection  to                                                               
communications when the union representative is not an attorney.                                                                
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if this  would apply  to all  public                                                               
employee union members in the state.                                                                                            
                                                                                                                                
MR. OWEN said  the sponsor was thinking  of union representatives                                                               
of people who work for the state.                                                                                               
                                                                                                                                
SENATOR  WIELECHOWSKI  stated  for  the record  that  he  was  an                                                               
attorney who worked for a labor union in the state.                                                                             
                                                                                                                                
CHAIR FRENCH noted  the people available to  answer questions and                                                               
testify.                                                                                                                        
                                                                                                                                
2:05:24 PM                                                                                                                    
JOHN PTACIN,  Assistant Attorney  General, Civil  Division, Labor                                                               
and State Affairs Section, Department  of Law (DOL), testified in                                                               
opposition  to SB  224.  He  said his  testimony  would be  three                                                               
pronged.  First, he  would describe  how these  lawsuits initiate                                                               
and why the state sees  the need to obtain certain communications                                                               
between a  union and its  members. Second,  he would put  to rest                                                               
some of the misconceptions about  the administration's conduct in                                                               
these  cases.  Third,  he  would note  that  the  privileges,  as                                                               
drafted, appear rather complicated.                                                                                             
                                                                                                                                
MR PTACIN  explained that state  workers are  primarily unionized                                                               
and,  by  law, the  employer  and  union  have  to enter  into  a                                                               
grievance  process   when  the  employer  makes   a  decision  to                                                               
terminate an employee. During the  grievance procedure, the union                                                               
represents the  member and meets  with the employer two  or three                                                               
times  to try  to explain  why  the state  should reconsider  its                                                               
decision.  At  this same  time,  the  union is  representing  the                                                               
collective bargaining unit as a whole.                                                                                          
                                                                                                                                
CHAIR  FRENCH asked  if  something less  than  a termination  can                                                               
begin a grievance process and lead to a request for discovery.                                                                  
                                                                                                                                
MR.  PTACIN   clarified  that  for   minor  grievances   such  as                                                               
suspensions, there is no need to ask for information.                                                                           
                                                                                                                                
CHAIR FRENCH asked if cases other than terminations go to court.                                                                
                                                                                                                                
2:09:38 PM                                                                                                                    
MR.  PTACIN  responded  that DOL  primarily  handles  termination                                                               
decisions. Responding to  a comment, he clarified  that these are                                                               
not appeals of  a termination decision per se.  Most decisions of                                                               
an  employer  to  terminate  a  worker  are  never  submitted  to                                                               
superior  court because  the grievance  process includes  binding                                                               
arbitration  against the  state if  the union  decides the  state                                                               
didn't concede enough.                                                                                                          
                                                                                                                                
SENATOR COGHILL asked if the  grievance process was a contractual                                                               
agreement.                                                                                                                      
                                                                                                                                
MR.  PTACIN  answered   yes;  it  was  part   of  the  collective                                                               
bargaining agreement  under the  Public Employment  Relations Act                                                               
(PERA).  Whenever a  state employee  bargaining union  is formed,                                                               
the state has to allow for  binding arbitration at the end of any                                                               
grievance  process. The  Department of  Law doesn't  get involved                                                               
until the  state is  sued, which is  after the  grievance process                                                               
and binding arbitration.                                                                                                        
                                                                                                                                
SENATOR COGHILL asked what employment  levels are involved in the                                                               
grievance process.                                                                                                              
                                                                                                                                
MR. PTACIN replied  it depends on the step of  the grievance, but                                                               
the  lower  steps  would  involve someone  who  correlates  to  a                                                               
business  agent  at  the  union.  Higher  and  higher  levels  of                                                               
management are  involved as the  steps progress.  Importantly, at                                                               
this  stage it  is  conciliatory, non-legal  conduct between  the                                                               
employer  and  employee. If  there  is  no agreement  during  the                                                               
grievance process,  the union has  to decide whether to  take the                                                               
case to binding arbitration.                                                                                                    
                                                                                                                                
SENATOR COGHILL asked how binding  arbitration fit into the realm                                                               
of adjudication.                                                                                                                
                                                                                                                                
MR. PTACIN  explained that  the union and  employer agree  on and                                                               
present  evidence to  an arbitrator  who makes  a final  decision                                                               
that is binding on both parties.  He said that was different from                                                               
what was before the committee  because the Alaska Labor Relations                                                               
Board referees both the grievance  process and arbitration and it                                                               
is conduct under the Public Employee Rights Act.                                                                                
                                                                                                                                
2:13:49 PM                                                                                                                    
SENATOR WIELECHOWSKI asked if the  bill would apply to all unions                                                               
in the state.                                                                                                                   
                                                                                                                                
MR. PTACIN answered yes.                                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI asked  if it would apply to  all unions that                                                               
are either  state employee  unions or  unions under  the National                                                               
Labor Relations Act.                                                                                                            
                                                                                                                                
MR. PTACIN replied, "It seems to."                                                                                              
                                                                                                                                
MR.  PTACIN said  he  wanted  to clarify  that  the Alaska  Labor                                                               
Relations Agency acts  as a referee throughout  the grievance and                                                               
adjudication processes, and the ground  rules under PERA and fair                                                               
labor  practices  are  that the  state  cannot  obtain  documents                                                               
during  those proceedings.  The bill  does not  intend to  change                                                               
that.                                                                                                                           
                                                                                                                                
MR. PTACIN said what sometimes happens  when the union has made a                                                               
decision not  to take a  case to  arbitration is that  the worker                                                               
files  suit  against  the  employer,  and the  case  ends  up  in                                                               
superior court. That is what the  bill takes aim at; it creates a                                                               
privilege for everything that happened in that other realm.                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI  said that was seriously  inaccurate. First,                                                               
not  all the  cases are  governed by  the Alaska  Labor Relations                                                               
Act,  many are  governed  by the  National  Labor Relations  Act.                                                               
Second,  the  state  is  requesting  confidential  documents  and                                                               
information that  the employee  shared with  his or  her business                                                               
representative.  It's   not  necessarily  in  the   unfair  labor                                                               
practice realm;  it can be any  realm at all. He  said the amicus                                                               
brief specifically  addressed a  case where the  state subpoenaed                                                               
the  employee  to  get confidential  communications  between  the                                                               
employee and his business representative.                                                                                       
                                                                                                                                
MR. PTACIN  countered that the  state was in civil  litigation at                                                               
that  point.   The  member  and   the  union  no  longer   had  a                                                               
relationship,  and the  member  had put  everything  at issue  by                                                               
filing  a  breach  of  contract  claim  against  the  state.  The                                                               
individual  was saying  that the  state treated  him unfairly  by                                                               
terminating  him  and  by  what  happened  during  the  grievance                                                               
process.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  asked for an example  of why a court  case would be                                                               
more advantageous to an employee than the arbitration process.                                                                  
                                                                                                                                
MR. PTACIN said he would defer  the question to others because he                                                               
had no idea.                                                                                                                    
                                                                                                                                
2:17:24 PM                                                                                                                    
SENATOR COGHILL asked if there was case law on this.                                                                            
                                                                                                                                
MR.  PTACIN responded  that the  collective bargaining  agreement                                                               
recognizes the  inherent need  to allow  a member  to communicate                                                               
with the union  while the grievance process  is ongoing. However,                                                               
no court  has said  there was  a privilege  under common  law, or                                                               
anything less  than a  statute, once that  process ended  and the                                                               
member  made a  decision to  put the  entire matter  at issue  in                                                               
superior court.                                                                                                                 
                                                                                                                                
SENATOR  WIELECHOWSKI  asked if  the  state  agreed that  in  the                                                               
context  of   the  grievance   and  arbitration   processes,  the                                                               
communications between the employee  and union representative are                                                               
privileged and confidential.                                                                                                    
                                                                                                                                
MR. PTACIN replied  he wasn't aware of  any collective bargaining                                                               
agreement that used the term "privilege."                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI asked what ALRA would say.                                                                                 
                                                                                                                                
MR. PTACIN said it would probably  be called a confidence, but he                                                               
didn't believe it would elevate to a privilege.                                                                                 
                                                                                                                                
2:19:49 PM                                                                                                                    
SENATOR COGHILL asked  if the employee didn't agree  to a certain                                                               
duty to the employer when he or she took employment.                                                                            
                                                                                                                                
MR.  PTACIN replied  that  would be  specific  to the  collective                                                               
bargaining  agreement, but  there  probably were  times when  the                                                               
union had  a duty to tell  the employer that something  was going                                                               
on that should be addressed.                                                                                                    
                                                                                                                                
SENATOR COGHILL  asked if  an employer wouldn't  have a  right to                                                               
know if there were conversations  between a business agent and an                                                               
employee about somebody not fulfilling a license, for example.                                                                  
                                                                                                                                
MR.  PTACIN said  that was  just  one of  the conversations  that                                                               
would have to  take place regarding what this  privilege does and                                                               
what it would create.                                                                                                           
                                                                                                                                
SENATOR  WIELECHOWSKI said  his experience  was that  many unions                                                               
have  business representatives  who  are non-attorneys,  although                                                               
they function  essentially as  attorneys. He  said both  the NLRA                                                               
and ALRA allow  this, and he can't understand  what public policy                                                               
reason there  would be for  saying that conversations  between an                                                               
employee and  his or her  business representative who  happens to                                                               
be   an  attorney   are  privileged,   but   when  the   business                                                               
representative happens  to be  a non-attorney  the communications                                                               
are not privileged.                                                                                                             
                                                                                                                                
MR. PTACIN opined  that it was an oversimplification  to say that                                                               
a  business  representative  acts   essentially  as  an  attorney                                                               
because  that business  agent not  only  represents the  employee                                                               
during the grievance process but also the collective as a whole.                                                                
                                                                                                                                
SENATOR    WIELECHOWSKI   pointed    out   that    the   business                                                               
representative  who happened  to be  an attorney  was doing  that                                                               
too.                                                                                                                            
                                                                                                                                
MR.  PTACIN  offered  his  view that  an  attorney  represents  a                                                               
client.                                                                                                                         
                                                                                                                                
SENATOR WIELECHOWSKI  responded that  there was no  difference at                                                               
all whether it was a  union attorney or a business representative                                                               
who was not an attorney.                                                                                                        
                                                                                                                                
MR. PTACIN said the bottom  line was that the attorney represents                                                               
both  the  individual's  interest   and  the  union's  collective                                                               
bargaining interests.                                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI responded  that the same holds  true for the                                                               
business representative.                                                                                                        
                                                                                                                                
2:23:33 PM                                                                                                                    
SENATOR  COGHILL  asked  if  a  business  agent  acting  in  that                                                               
situation would get legal counsel from the union.                                                                               
                                                                                                                                
SENATOR  WIELECHOWSKI replied  that  sometimes they  do, but  not                                                               
always.                                                                                                                         
                                                                                                                                
2:23:57 PM                                                                                                                    
CHAIR FRENCH  reviewed the reason for  the bill and the  facts in                                                               
one case that alleged abuse of discovery practices.                                                                             
                                                                                                                                
SENATOR  COGHILL asked  if the  issue in  that specific  case was                                                               
that the  state subpoenaed conversations that  took place between                                                               
a  union  representative and  an  employee  during the  grievance                                                               
process.                                                                                                                        
                                                                                                                                
CHAIR FRENCH said yes.                                                                                                          
                                                                                                                                
SENATOR COGHILL asked what issue had to be resolved.                                                                            
                                                                                                                                
MR.  PTACIN   explained  that   in  that   particular  collective                                                               
bargaining agreement, the  union member had to take  a final step                                                               
in the grievance process. The  member had to communicate with his                                                               
union internally to voice disagreement  with the business agent's                                                               
decision  and ask  the  full  board to  decide  whether the  case                                                               
should go to binding arbitration.  If the member didn't take that                                                               
final step, the case in  superior court would likely be dismissed                                                               
because  the member  hadn't exhausted  every opportunity  for the                                                               
employer to consider whether it treated the employee fairly.                                                                    
                                                                                                                                
SENATOR COGHILL asked if the state  would be able to subpoena the                                                               
record of the board decision.                                                                                                   
                                                                                                                                
MR. PTACIN replied  that question is before the  court right now.                                                               
The state thinks  these records are very helpful  in proving fair                                                               
treatment of  the employee in  the breach of contract  claim that                                                               
the  employee brought  against the  employer. The  state believes                                                               
that there  is opportunity for  those documents to show  bias and                                                               
prior inconsistent  statements. An  entire array of  issues could                                                               
come  before  the jury  that  is  deciding whether  the  employer                                                               
treated the employee fairly.                                                                                                    
                                                                                                                                
CHAIR FRENCH voiced  sympathy with the notion that  the state was                                                               
reaching into  a privileged  communication. "It  feels invasive,"                                                               
he said.                                                                                                                        
                                                                                                                                
SENATOR  COGHILL  said  it  would  be valuable  to  know  if  the                                                               
subpoena  was  asking  about strategy  or  something  that  would                                                               
adversely affect the company.                                                                                                   
                                                                                                                                
MR. PTACIN said  the exhaustion issue was  likely a communication                                                               
between the  member and the  union and  the bill would  not allow                                                               
the state  to probe for  that information even though  the member                                                               
put it at issue.                                                                                                                
                                                                                                                                
He  raised  several  questions about  Section  2.  He  questioned                                                               
whether subsection (a)(1),(2) might  cause problems for the court                                                               
if  it has  to  decide  what will  trigger  the privilege.  Under                                                               
subsection (b)(2),  he said  it appeared that  the only  time the                                                               
union had the ability to disclose  was if there was an ability to                                                               
prevent  crime. His  reading of  the  AFLCIO brief  was that  the                                                               
union wanted  the ability to weigh  in if it was  for the benefit                                                               
of the  entire membership, and the  bill didn't do that.  He said                                                               
he'd like  to hear the  drafter's intention  regarding subsection                                                               
(b)(3) because  it appeared  to require the  state to  prove that                                                               
its  need for  the information  outweighed the  union's need  for                                                               
confidentiality. Subsection  (b)(4) says  the employee  can waive                                                               
the privilege in  writing, but an employee can  waive a privilege                                                               
at any  time if they  discuss it with anybody  or it comes  up in                                                               
discovery.  Finally, subsection  (d)(2)(A) has  a list  of forums                                                               
where this would apply, yet the  only forum that was at issue was                                                               
the judicial forum and the  subsequent litigation that is brought                                                               
by the member against the employer.                                                                                             
                                                                                                                                
2:32:11 PM                                                                                                                    
SENATOR WIELECHOWSKI  read Section 2, subsections  (a)(1),(2) and                                                               
questioned the  public policy rationale for  allowing an employer                                                               
to  delve  into confidential  information  that  was acquired  in                                                               
connection with providing advocacy services.                                                                                    
                                                                                                                                
MR. PTACIN said  the first policy reason was that  the matter was                                                               
in civil  court and the jury  needed to know the  latent facts in                                                               
the advocacy relationship  in order to make a  decision about the                                                               
fairness of  the grievance proceeding.  The second  policy reason                                                               
was that there are affirmative  defenses in these cases and there                                                               
are certain conversations  that happen between the  union and the                                                               
union member that are central  to affirmative defenses, including                                                               
exhaustion. He  said this  was more about  what was  happening at                                                               
the civil court  level because all these  confidences were intact                                                               
while that process was ongoing.                                                                                                 
                                                                                                                                
CHAIR FRENCH  commented that he understood  the exhaustion issue,                                                               
but believed there were easier ways to get there.                                                                               
                                                                                                                                
SENATOR COGHILL  asked, up to  binding arbitration, if  there had                                                               
been   a  problem   keeping  conversations   between  the   union                                                               
representative and the union member private and off the table.                                                                  
                                                                                                                                
MR. PTACIN  said no; it was  only when the union  decided against                                                               
taking the matter  to binding arbitration and  the member decided                                                               
to sue, putting everything at issue in superior court.                                                                          
                                                                                                                                
2:35:18 PM                                                                                                                    
DOUGLAS  MERTZ, Attorney,  Juneau,  AK, told  the committee  that                                                               
this  issue came  to him  because of  a client  who was  unjustly                                                               
terminated by  the state.  The state required  him to  pursue his                                                               
claim through an  exhaustive administrative process and  to use a                                                               
union representative as his advocate.                                                                                           
                                                                                                                                
SENATOR COGHILL  voiced his understanding  that the  union member                                                               
did not exhaust his administrative remedies.                                                                                    
                                                                                                                                
MR. MERTZ  confirmed that the  state alleged that the  member did                                                               
not completely exhaust his administrative  remedies. The law says                                                               
the employee  has to use  his or her  union advocate and  may not                                                               
use  an  attorney  as  an  advocate  during  that  administrative                                                               
grievance process, including the arbitration.                                                                                   
                                                                                                                                
CHAIR FRENCH asked the reason for that rule.                                                                                    
                                                                                                                                
MR. MERTZ responded  that the only answer was that  at some point                                                               
in the  collective bargaining agreement,  both the state  and the                                                               
multiple unions decided it was  in their collective best interest                                                               
to freeze out private attorneys.                                                                                                
                                                                                                                                
CHAIR FRENCH commented that it might be to keep costs down.                                                                     
                                                                                                                                
SENATOR COGHILL  asked if a union  representative would generally                                                               
get legal counsel during the proceeding.                                                                                        
                                                                                                                                
MR. MERTZ said  his experience was that they do  not, unless some                                                               
unique legal  question is at issue.  The union member can  hire a                                                               
private attorney to advise him or  her, and that attorney can try                                                               
to advise  the union lay  advocate, but that brings  the problem.                                                               
After  the union  member  filed suit,  the  state subpoenaed  all                                                               
union   records   related   to    the   member,   including   all                                                               
communications  between  his  private   attorney  and  the  union                                                               
representative.                                                                                                                 
                                                                                                                                
SENATOR  COGHILL asked  if the  union could  have subpoenaed  the                                                               
employer  for  all  records   concerning  conversations  to  that                                                               
employee.                                                                                                                       
                                                                                                                                
MR. MERTZ  said he tried  that but,  according to the  state, the                                                               
state can get  all the union materials once the  matter gets into                                                               
litigation, but  the union  and the  private attorney  cannot get                                                               
any correspondence from the state.                                                                                              
                                                                                                                                
SENATOR  COGHILL asked  what happens  when  one private  employer                                                               
wants  information from  another private  employer about  a union                                                               
member.                                                                                                                         
                                                                                                                                
MR. MERTZ responded that the  private employer could probably get                                                               
the   information  with   the   exception   of  attorney   client                                                               
communications.                                                                                                                 
                                                                                                                                
CHAIR FRENCH  confirmed that attorney client  communications were                                                               
highly protected.                                                                                                               
                                                                                                                                
MR.  MERTZ said  the state  wanted all  attorney client  tactical                                                               
discussions  and decisions,  including the  lay advocate's  legal                                                               
research files. The state wanted  information that would never be                                                               
exchanged in civil litigation.                                                                                                  
                                                                                                                                
SENATOR  COGHILL  asked  for  further  clarification  of  private                                                               
communications.                                                                                                                 
                                                                                                                                
Mr.  Mertz explained  that,  in  this case,  Mr.  Ptacin said  he                                                               
needed  the information  that the  union lay-advocate  held about                                                               
exhaustion  of  administrative  remedies.  If  an  attorney  were                                                               
involved, there might be an ability  to define a certain class of                                                               
information  that   would  not  invade  the   attorney's  thought                                                               
processes of private communications.                                                                                            
                                                                                                                                
CHAIR FRENCH  commented that the  last union act was  internal so                                                               
it  was  difficult  for  an  outsider to  know  whether  all  the                                                               
remedies were exhausted.                                                                                                        
                                                                                                                                
MR.  MERTZ  said, in  this  case,  the  state asked  for  written                                                               
discovery and  the client  testified under oath  as to  all those                                                               
materials. If  the state really  needed something else  like that                                                               
to  make  its  case,  the existing  precedents  interpreting  the                                                               
attorney client  privilege would allow  the other side to  get to                                                               
those materials, too. At issue  were the core confidential things                                                               
about   tactics,   settlement   possibility,  and   the   thought                                                               
processes.                                                                                                                      
                                                                                                                                
CHAIR FRENCH hypothesized that the  union might tell the employee                                                               
it  wasn't  taking  the  case any  further  because,  from  their                                                               
perspective, the  case was  a "stinker."  The employee  makes the                                                               
decision to go to court and  the state wants that final statement                                                               
from the union so  it can show the judge and  jury what the union                                                               
thought about the case.                                                                                                         
                                                                                                                                
MR. MERTZ  added that  if the  state could  get the  records that                                                               
show that,  it could also  call the  union advocate as  a witness                                                               
against his own client.                                                                                                         
                                                                                                                                
SENATOR COGHILL asked if what comes  before a court is the verbal                                                               
"he  said, she  said" unless  there was  some action  outside the                                                               
arbitration.                                                                                                                    
                                                                                                                                
CHAIR FRENCH  responded that what  comes before the  court should                                                               
be all  the things that happened  in the workplace that  made the                                                               
individual a good or bad employee.                                                                                              
                                                                                                                                
2:44:42 PM                                                                                                                    
MR.  MERTZ  relayed  that  in a  parallel  case,  the  California                                                               
Supreme Court said it would be  ridiculous to assume that the law                                                               
intended that  the only advice  the union advocate could  give to                                                               
the client was  "Don't talk to me." He said  that since the lower                                                               
ruling  that  was the  current  situation  in this  state.  Union                                                               
members cannot be assured that  communications with the union are                                                               
confidential.                                                                                                                   
                                                                                                                                
CHAIR  FRENCH commented  that there  should  be a  form that  the                                                               
employee and the  union advocate sign attesting to  the fact that                                                               
the union  member exhausted all  remedies. He reiterated  that he                                                               
was sensitive to the issue.                                                                                                     
                                                                                                                                
MR.  MERTZ said  there were  two reasons  the Legislature  should                                                               
address the matter  when it was before the  Alaska Supreme Court.                                                               
The first reason was that  union communications in this state are                                                               
not and will  not be confidential until either the  court acts or                                                               
the Legislature  passes a bill  like this. The second  reason was                                                               
that   the  issue   before   the  court   was   whether  it   was                                                               
unconstitutional, as  a violation  of due  process, to  allow the                                                               
state  to  demand  this  information from  the  union  and  union                                                               
member. That constitutional  bar of due process is  very high and                                                               
very  difficult  to meet,  whereas  the  Legislature can  make  a                                                               
judgment call based on fairness and good policy.                                                                                
                                                                                                                                
SENATOR  COGHILL  asked if  there  were  other instances  of  the                                                               
employer subpoenaing  information between the union  advocate and                                                               
union member.                                                                                                                   
                                                                                                                                
MR. MERTZ  said he wasn't  aware of  it happening in  Alaska, but                                                               
the state  just started making this  sort of request a  couple of                                                               
years  ago. A  number  of  other states  and  the National  Labor                                                               
Relations  Board (NLRB)  have said  the employer  cannot ask  for                                                               
this information.  Two states have  enacted legislation  and this                                                               
bill models the Illinois legislation.                                                                                           
                                                                                                                                
SENATOR COGHILL  commented that  HB 224  tried to  delineate what                                                               
information was and was not going to be available.                                                                              
                                                                                                                                
MR.  MERTZ agreed  and added  that the  bill also  had an  escape                                                               
provision that allowed the judge,  when asked, to make a judgment                                                               
call as to which interest was more important.                                                                                   
                                                                                                                                
2:48:35 PM                                                                                                                    
KATE  SHEEHAN, Deputy  Director, Personnel  and Labor  Relations,                                                               
Department of  Administration, said her testimony  would focus on                                                               
Section 2  and the proposed  amendment to AS 23.40.  That section                                                               
specifically   talks   about   the  grievance   and   arbitration                                                               
procedures   conducted   under   the  authority   of   collective                                                               
bargaining agreements.                                                                                                          
                                                                                                                                
She  stated   that  the  proposed  legislation   would  turn  the                                                               
grievance process into a legal  process found only in the courts.                                                               
It was  to the  betterment of  both parties  to have  a grievance                                                               
process that was self-governing  and bargained. Both parties have                                                               
bargained  specific  grievance  processes into  their  collective                                                               
bargaining agreements  and both parties  are bound to  follow the                                                               
process.  The   union  representatives  work  with   Division  of                                                               
Personnel and Labor Relations  representatives and attorneys were                                                               
not involved.                                                                                                                   
                                                                                                                                
MS. SHEEHAN confirmed  that some of the  labor relations analysts                                                               
on  staff  had  legal  training   and  background  but  were  not                                                               
practicing  attorneys.   Therefore,  she   said,  there   was  no                                                               
privilege attached to their communications.                                                                                     
                                                                                                                                
She opined that fairness was not  an issue with regard to Section                                                               
2  because  there  was  no  subpoena  authority  in  the  state's                                                               
collective bargaining agreements. The  Uniform Arbitration Act in                                                               
Title  9  allows  for  subpoena  and  arbitrations  if  expressly                                                               
adopted  in the  collective bargaining  agreement. The  state has                                                               
not  done  this except  in  the  instance  of the  Public  Safety                                                               
Employees Association  (PSEA) where  the arbitrator  can subpoena                                                               
non-state employees  to appear. She  said that during  her tenure                                                               
as  deputy director  she did  not recall  a time  that the  state                                                               
tried to  subpoena union  member communications.  Furthermore, at                                                               
any point  in the grievance  process either party can  argue that                                                               
the  other  was  being  unfair  or  not  handing  over  documents                                                               
necessary  to  present the  case.  It  would  then  be up  to  an                                                               
arbitrator  to  decide  if  the   request  was  relevant  to  the                                                               
proceedings at  hand. She concluded  that SB 224  would undermine                                                               
what the parties have already agreed to through bargaining.                                                                     
                                                                                                                                
2:52:06 PM                                                                                                                    
SENATOR  COGHILL asked  for clarification  because he  understood                                                               
that  the  bill  addressed  what  happened  after  the  grievance                                                               
process when the employee decided to go to court.                                                                               
                                                                                                                                
MS.  SHEEHAN responded  that Section  1  dealt with  the code  of                                                               
civil  procedure,  which  was  the issue  in  the  current  case,                                                               
whereas  Section  2 talked  about  the  grievance processes.  She                                                               
reiterated that  confidentiality would apply and  the state would                                                               
not  have the  ability  to  subpoena confidential  communications                                                               
during the grievance process.                                                                                                   
                                                                                                                                
SENATOR   WIELECHOWSKI  questioned   how  this   would  undermine                                                               
collective  bargaining if  PERA,  the NLRA  board,  and the  ALRA                                                               
board already ruled that the information was privileged.                                                                        
                                                                                                                                
MS.  SHEEHAN said  that language  was  bargained into  agreements                                                               
about what  union stewards  and/or board  members can  and cannot                                                               
do. She  said her understanding of  PERA was that the  unions and                                                               
employer work together  to agree on the wages,  hours, terms, and                                                               
conditions  of  employment, which  would  fall  under "Terms  and                                                               
Conditions of Employment."                                                                                                      
                                                                                                                                
SENATOR WIELECHOWSKI  asked if  the state  wanted the  ability to                                                               
get all  the confidential communications between  an employee and                                                               
the employee's representative.                                                                                                  
                                                                                                                                
MS. SHEEHAN responded that she  was only testifying about Section                                                               
2.                                                                                                                              
                                                                                                                                
SENATOR  WIELECHOWSKI reiterated  his question,  and asked  for a                                                               
yes or no answer.                                                                                                               
                                                                                                                                
MS. SHEEHAN  answered no. She added  that the state did  not have                                                               
that ability  now, and  "at this  point there's  been no  push to                                                               
bargain the Uniform Arbitration Act subpoena."                                                                                  
                                                                                                                                
CHAIR  FRENCH observed  that she  was not  speaking to  the court                                                               
process, just what occurred within the grievance process.                                                                       
                                                                                                                                
MS. SHEEHAN confirmed that was correct.                                                                                         
                                                                                                                                
SENATOR COGHILL asked if the rules change in the court process.                                                                 
                                                                                                                                
CHAIR FRENCH confirmed that they change dramatically.                                                                           
                                                                                                                                
SENATOR    WIELECHOWSKI    disagreed     with    Ms.    Sheehan's                                                               
interpretation.                                                                                                                 
                                                                                                                                
CHAIR  FRENCH  suggested  the committee  would  hear  a  rebuttal                                                               
witness after Ms. Sheehan finished her statement.                                                                               
                                                                                                                                
2:55:58 PM                                                                                                                    
MS. SHEEHAN said the legislation  would also present problems for                                                               
agencies  that provide  security-related  services.  She cited  a                                                               
specific case  from the Department  of Corrections where  a shift                                                               
supervisor,  who happened  to be  a union  board member,  did not                                                               
pass along  a report  of potential  unethical actions  because he                                                               
thought the  information was given  in confidence. She  said both                                                               
the union member  and the union representative  could hide behind                                                               
this  legislation  and  place  management  in  a  very  difficult                                                               
position.                                                                                                                       
                                                                                                                                
SENATOR  COGHILL  said  his  question   was  answered  about  the                                                               
difference between the  strategies of how a supervisor  who was a                                                               
union steward can advise an  employee against how it affected the                                                               
duties required in the job.                                                                                                     
                                                                                                                                
CHAIR  FRENCH commented  that there  should  be a  way to  define                                                               
around  whether or  not  to disclose  something  about an  unsafe                                                               
practice at a prison.                                                                                                           
                                                                                                                                
2:58:30 PM                                                                                                                    
STEVEN SORENSON,  Attorney, Juneau,  AK, said he  represented the                                                               
Public Safety Employee Association  (PSEA) and the union believed                                                               
the legislation was  important. He relayed that  two PSEA members                                                               
sued the City of Fairbanks  after each went through the grievance                                                               
procedure   and  arbitration   and  had   satisfied  the   entire                                                               
administrative   procedure  found   in  the   collective  bargain                                                               
agreement. Civil  attorneys representing the city  subpoenaed all                                                               
the union records  for the two members with regard  to the advice                                                               
and  strategies  used  when  PSEA   represented  them  under  the                                                               
collective bargain  agreement. The city's attorneys  also deposed                                                               
the  former executive  director  of the  union  seeking the  same                                                               
information.  In each  instance, PSEA  responded to  the subpoena                                                               
and provided limited discovery and  the list of privilege that it                                                               
was not going to supply.  In the deposition, the former executive                                                               
director  indicated that  he would  not  provide the  information                                                               
unless ordered to  do so by a court. The  city's attorneys didn't                                                               
press the  issue in  either instance, but  it wouldn't  take much                                                               
and they could anticipate a further push for more information.                                                                  
                                                                                                                                
SENATOR  COGHILL assumed  that the  employees weren't  happy with                                                               
the binding arbitration settlement.                                                                                             
                                                                                                                                
MR. SORENSON  explained that a  union was obliged under  its duty                                                               
of  fair representation  to review  and  take properly  presented                                                               
grievances through the administrative  procedures process set out                                                               
in  the collective  bargain agreement.  However, the  decision of                                                               
whether or not arbitration should  go forward lay solely with the                                                               
union, not the  grievant. If the union decided not  to go forward                                                               
with arbitration,  the duty of  fair representation ends  and the                                                               
employee then  has the right to  take civil action. If  the union                                                               
decided to go  to arbitration, the employee would  have the right                                                               
to sue if he or she didn't like the outcome.                                                                                    
                                                                                                                                
SENATOR COGHILL  commented that  the rules  change when  the case                                                               
goes to  civil court and  it seemed that discovery  should change                                                               
as well.                                                                                                                        
                                                                                                                                
MR.  SORENSON responded  that the  conversations  that the  union                                                               
representative had with the member  with regard to representation                                                               
during the  period of advocacy  under the contract  should remain                                                               
protected.   SB   224   does   that;  it   ensures   that   those                                                               
conversations,   strategies,   and   thought   processes   remain                                                               
confidential  and privileged  despite the  subsequent actions  of                                                               
either the employee or the employer.                                                                                            
                                                                                                                                
SENATOR COGHILL  said he was  trying to understand  when strategy                                                               
advice would compete with policy  and procedure advice that would                                                               
determine the competency of an issue.                                                                                           
                                                                                                                                
CHAIR  FRENCH reiterated  that there  should be  a way  to let  a                                                               
court  know  whether  the  procedural   steps  of  exhaustion  to                                                               
remedies had taken place. It should not be a secret.                                                                            
                                                                                                                                
MR.  SORENSON responded  that it  was  not a  secret because  the                                                               
employer, the  employee, and the  union were in  lockstep through                                                               
all the steps of the grievance procedure.                                                                                       
                                                                                                                                
CHAIR FRENCH asked  if arbitration was part of  the exhaustion of                                                               
remedies sequence.                                                                                                              
                                                                                                                                
MR. SORENSON  said that arbitration  was the final step  in every                                                               
PSEA collective bargain agreement, and it was final and binding.                                                                
                                                                                                                                
SENATOR COGHILL asked if that was a contractual obligation.                                                                     
                                                                                                                                
MR. SORENSON said yes and it exists in PERA.                                                                                    
                                                                                                                                
SENATOR  COGHILL  offered his  belief  that  not fulfilling  that                                                               
complete contractual obligation could really be the question.                                                                   
                                                                                                                                
3:08:12 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 224 in committee.                                                                       
                                                                                                                                
3:08:20 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair French adjourned the Senate Judiciary Standing Committee                                                                  
meeting at 3:08 p.m.                                                                                                            

Document Name Date/Time Subjects
SB 224 Sponsor Statement.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 Sectional Analysis.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 Relevant Statutes.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 20110718 PetRev Brief final copy.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 amicus brief of AFLCIO 20110718.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 Brief of Appellee State of Alaska.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 RP reply brief final 20111007.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB 224 testimony, Mertz 032012.PDF SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB224-DOLWD-ALRA-3-16-12.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
SB224-DOA-LR-3-7-12.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
HB327 Supporting Documents-Letter Doug Mertz re SB224.pdf HL&C 3/21/2012 3:15:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 327
SB 224
SB 224 lttr supporting, Boyles, Teamsters 032012.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/22/2012 1:30:00 PM
SB 224
SB 224 lttr supporting, Johnson, Local 71 032012.PDF SJUD 3/30/2012 1:30:00 PM
SL&C 3/22/2012 1:30:00 PM
SB 224
SB 224 lttr supporting, ACLU 032212.pdf SJUD 3/30/2012 1:30:00 PM
SL&C 3/22/2012 1:30:00 PM
SB 224
SB 224 lttr supporting, Angaiak, NEA 031912.PDF SJUD 3/30/2012 1:30:00 PM
SL&C 3/20/2012 1:30:00 PM
SB 224
HB56 Sponsor Statement 02-08-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Version M 01-18-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Relevant Statutes.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Fiscal Note-LAW-CRIM-02-11-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Fiscal Note-DOC-OC-02-11-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Supporting Documents-Letter AFCA 02-15-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Supporting Documents-Letter APOA 02-14-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Supporting Documents-Letter Daniel Jager 02-17-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Supporting Documents-Letter Investigators 02-15-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
HB56 Supporting Documents-Letter Mark Hall 02-15-11.pdf HJUD 2/21/2011 1:00:00 PM
SJUD 3/30/2012 1:30:00 PM
HB 56
SB 138 Version U.pdf SJUD 3/30/2012 1:30:00 PM
SB 138