Legislature(2003 - 2004)
03/05/2004 08:05 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 5, 2004
8:05 a.m.
TAPE(S) 04-15,16
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
CHANGES TO ALASKA PUBLIC OFFICES COMMISSION (APOC) REGULATIONS
SENATE BILL NO. 336
"An Act imposing a correctional facility surcharge on persons
convicted of a crime under state law, and on persons whose
probation is revoked; relating to fees and expenses for
interstate transfer of probation or parole; and providing for an
effective date."
MOVED CSSB 336(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 83(JUD)
"An Act adopting a version of the Revised Uniform Arbitration
Act; relating to the state's existing Uniform Arbitration Act;
amending Rules 3, 18, 19, 20, and 21, Alaska Rules of Civil
Procedure, Rule 601, Alaska Rules of Evidence, and Rule 402,
Alaska Rules of Appellate Procedure; and providing for an
effective date."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 336
SHORT TITLE: CORRECTIONS: FEES/SURCHARGE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/16/04 (S) READ THE FIRST TIME - REFERRALS
02/16/04 (S) JUD, FIN
03/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 83
SHORT TITLE: REVISED UNIFORM ARBITRATION ACT
SPONSOR(s): REPRESENTATIVE(s) BERKOWITZ
02/07/03 (H) READ THE FIRST TIME - REFERRALS
02/07/03 (H) JUD
03/07/03 (H) JUD AT 1:00 PM CAPITOL 120
03/07/03 (H) -- Meeting Postponed to 03/10/03 --
03/10/03 (H) JUD AT 1:00 PM CAPITOL 120
03/10/03 (H) Heard & Held
03/10/03 (H) MINUTE(JUD)
03/12/03 (H) JUD AT 1:00 PM CAPITOL 120
03/12/03 (H) Moved CSHB 83(JUD) Out of Committee
03/12/03 (H) MINUTE(JUD)
03/31/03 (H) JUD RPT CS(JUD) 4DP 2NR
03/31/03 (H) DP: GARA, ANDERSON, GRUENBERG, MCGUIRE;
03/31/03 (H) NR: SAMUELS, COGHILL
04/16/03 (H) TRANSMITTED TO (S)
04/16/03 (H) VERSION: CSHB 83(JUD)
04/17/03 (S) READ THE FIRST TIME - REFERRALS
04/17/03 (S) L&C, JUD
05/13/03 (S) L&C AT 2:00 PM BELTZ 211
05/13/03 (S) Heard & Held
05/13/03 (S) MINUTE(L&C)
05/15/03 (S) L&C AT 7:45 AM BUTROVICH 205
05/15/03 (S) Moved Out of Committee
05/15/03 (S) MINUTE(L&C)
05/16/03 (S) L&C RPT 3NR
05/16/03 (S) NR: BUNDE, SEEKINS, STEVENS G
03/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Mr. Phillip Eide
Eide, Miller & Pate P.C.
425 G Street, Suite 930
Anchorage, AK 99501
POSITION STATEMENT: Expressed frustration with APOC's proposed
regulations
Ms. Pam LaBolle
Alaska Chamber of Commerce
nd
217 2 Street, Suite 201
Juneau, Alaska 99801
POSITION STATEMENT: Expressed frustration with APOC's proposed
regulations
Mr. Larry Wood
Alaska Public Offices Commission
240 Main St.#201
PO Box 110222
Juneau, AK 99811
POSITION STATEMENT: Discussed APOC's regulatory process
Ms. Andrea Jacobsen, Chair
Alaska Public Offices Commission
240 Main Street #201
Juneau, AK 99811
POSITION STATEMENT: Discussed APOC's regulatory process
Ms. Portia Parker
Deputy Commissioner
Department of Corrections
431 N. Franklin, Suite 400
Juneau, AK 99801
POSITION STATEMENT: Presented SB 336 for the Administration
Mr. Marc Antrim
Commissioner
Department of Corrections
431 N. Franklin, Suite 400
Juneau, AK 99801
POSITION STATEMENT: Answered questions about SB 336
Ms. Kathryn Daughhetee
Administrative Services Division
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions about SB 336
Ms. Barbara Brink
Public Defender Agency
Department of Administration
th
900 W 5
Anchorage, AK 99501-2090
POSITION STATEMENT: Expressed concerns about SB 336
Ms. Anne Carpeneti
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions pertaining to SB 336
Ms. Diane Wendtlandt
Assistant Attorney General
Department of Law
th
1031 4 Ave.
Anchorage, AK 99501-1994
POSITION STATEMENT: Answered questions pertaining to SB 336
ACTION NARRATIVE
TAPE 04-15, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:05 a.m. Senators Therriault,
Ogan and Chair Seekins were present. Senator Ellis was excused.
^APOC PROPOSED LOBBYIST REGULATIONS
CHAIR SEEKINS informed members that last year the Senate
Judiciary Committee debated and passed a bill that changed the
definition of a lobbyist. The Alaska Public Offices Commission
(APOC) recently published its proposed regulations resulting
from that legislation. Because a number of people contacted the
committee expressing concerns about the proposed regulations, he
met with the APOC commissioners, who are reviewing the proposed
regulations and will decide whether to "pull" the regulations
later today. He said committee members would hear testimony on
the matter.
SENATOR THERRIAULT asked that APOC address the confusion about
the statutory references in the proposed regulations.
CHAIR SEEKINS asked Mr. Eide to address that concern.
MR. PHILLIP EIDE, Eide, Miller & Pate, noted that he was sitting
in for Jack Miller of his firm who wrote two letters to the
committee dated February 25 and March 4. His firm believes the
proposed regulations are flawed in many respects and that APOC's
regulatory authority is inconsistent with the statute. The most
significant concern is a proposed amendment to 2 AAC
50.545(a)(4), which purports to define "professional lobbyist"
as an employee with a primary or substantial responsibility to
communicate directly with public officials to influence
legislators or legislative action on behalf of the employer. He
said the key problem is that the term "professional lobbyist"
appears nowhere in the statute. In addition, the definition does
not take into account the specific statutory requirement that in
order to be regulated as a lobbyist, a person must work 40 hours
within a 30-day period in a calendar year. He assumes the
legislature included that condition to provide a bright line
test. The regulation ignores that requirement and instead
provides an ambiguous definition in what, his firm submits, is
an attempt to end run the statutory provision.
MR. EIDE said another section of the proposed regulations that
the firm sees as defective, flawed, and in violation of free
speech is 2 AAC 50.545(c), which considers time spent before
legislative committees to be communicating directly [with
legislators]. Eide, Miller and Pate submits that testifying
before a committee was not intended to be a form of direct
communication, as defined by the statute. It violates a
citizen's right to appear and testify publicly. 2 AAC
50.545(e)(2)-(7) lists the items regulated as a cost of lobbying
activities. Regulated lobbying activity must be activity
intended to influence legislative or administrative action and
constitute payments for assistance to a lobbyist. Items (2)
through (7) do not make clear that the expenses must be intended
to influence legislative or administrative action and several of
the regulations refer to the expenses incurred by the employer
without referencing the fact that the expenses have anything to
do with a lobbyist or an attempt to influence legislation. That
section is unclear as to what types of social events are
involved, i.e., whether a legislator would have to be present.
It is overly broad and would have a chilling effect on the
exercise of First Amendment rights.
MR. EIDE then addressed 2 AAC 50.545(e)(3), regarding the cost
of media to communicate the employer's position on issues, which
he believes is flawed for reasons previously mentioned. Nothing
in the statutes or Constitution allows APOC to regulate an
employer's right to inform the public on any issues that the
employer sees fit. In addition, "media communications" does not
fall within the statutory definition. Media communications are
intended to inform and influence the public directly. 2 AAC
50.545(e)(4) references employers' lobbying activities so
employers, unless they fit the definition of a lobbyist, are not
subject to regulation. Any attempt to regulate an employer's
activities in terms of polling would violate the intent of the
statute. He said unless it's a poll that is specifically
intended to influence legislative or administrative action in
support of lobbying activities, it does not appear to be covered
by the statute. 2 AAC 50.545(e)(5) deals with the employer's
cost to communicate with the lobbyist to discuss issues and
strategies and is overly broad. An employer can communicate with
a lobbyist for any number of reasons that are far broader and
that are not a specific attempt to influence administrative or
legislative action.
MR. EIDE told members that 2 AAC 50.545(e)(6) pertains to travel
costs. His firm submits that unless the employer is defined as a
lobbyist, the cost of travel is not subject to regulation. 2 AAC
50.545(e)(7) addresses the costs incurred by an employer when
providing a trip for a public official for the purpose of
obtaining information. It is inconsistent with the statutory
scheme related to regulating lobbying activities.
CHAIR SEEKINS asked Mr. Eide if one of his concerns is that the
proposed regulations severely infringe upon free speech and that
a person should be able to conduct a media campaign on an issue
to inform the public without that being considered as direct
communication with a legislator.
MR. EIDE said that is correct.
CHAIR SEEKINS noted the press is able to do that on a daily
basis without any regulation.
MR. EIDE said unless an employer meets the definition of a
lobbyist, an employer is not subject to being regulated as a
lobbyist.
CHAIR SEEKINS said concerns have been expressed in the past that
someone who employs a lobbyist and spends a certain amount of
time talking to that lobbyist should have to register as a
lobbyist as well. He asked Mr. Eide to comment.
MR. EIDE said his concern is that 2 AAC 50.545(a)(4), which
attempts to define a lobbyist, takes a step back from what the
legislature accomplished by defining a lobbyist using the 40-
hour rule. He said the current statutory definition of lobbyist
allows one to determine a lobbyist with some precision. The
proposed regulation circumvents that effort and is too vague.
CHAIR SEEKINS commented:
...if I look at that statement the way it reads now,
the new definition of professional lobbyist as
proposed in this regulation, under the rules of strict
construction, professional lobbyist means a lobbyist
under this statute, which is an expired statute - it
says and includes an employee who has primary or
substantial responsibility to communicate directly
with public officials to influence legislative or
administrative action on behalf of employees. Couldn't
that mean every small businessman or woman in the
entire state of Alaska would be required to be a
registered lobbyist under the rules of construction
there even though they may never, if they had the
primary responsibility that it could be read to
include that they now would need to be a registered
lobbyist?
MR. EIDE said that is a possibility and broadening the
definition leads to that ambiguity, which he does not believe
was the legislature's intent.
CHAIR SEEKINS pointed out that may not have been the intention
of the drafters either. With no further questions, he thanked
Mr. Eide.
MS. PAMELA LABOLLE, President of the Alaska State Chamber of
Commerce, reminded members that the State Chamber was
instrumental in getting the bill passed last year so it has been
paying close attention to the proposed regulations. The Chamber
finds it very distressing that every word that went into the
bill last year was debated right down to the final hours of
passage yet the proposed regulations have changed the verbiage
and set aside the intent that the Chamber and legislature worked
so hard to define. She questioned how many times the intent of
laws is significantly changed during the regulatory process. She
noted these proposed regulations cite non-existent statutes and
misname statutes and questioned whether anyone with a legal
background reviews the regulations before they are published for
public comment. She echoed Mr. Eide's concerns, especially the
fact that the Chamber worked to remove the words "substantial"
and "regular," but those words have been replaced with the words
"primary" or "substantial." She maintained the replacement words
set aside so much of the work the Chamber did last year.
MS. LABOLLE said the proposed APOC regulations have created such
uproar because they reflect how the regulators, throughout the
regulatory arena, take on authority beyond what the legislature
intended. She is glad that APOC plans to put the proposed
regulations aside and go back to the drawing board, but she is
concerned that the public has to be much more attentive to what
is happening in the regulatory world.
SENATOR OGAN pointed out that a constitutional amendment has
been before the voters three times that would allow the
legislature to overturn regulations. He maintained that a lot of
criticism and cynicism has been aimed at the legislature, but it
operates in a very open process. Its deliberations are on
television and the Internet. Regulatory agencies do not operate
with that scrutiny. Most working people do not have time to
attend meetings so they expect legislators to keep their "hand
on the wheel and watch what goes on." However, he does not have
time to monitor all regulations either.
MS. LABOLLE said one thing she has observed during her 30 years
of lobbying is that too often, in its effort to pass laws, the
legislature will write laws with a broad intent and let the
agencies deal with the details. However, that approach sometimes
leads to results like the APOC regulations. In the APOC law, the
legislature dealt with the details because the previous law
contained ambiguities that were the impetus for new legislation.
She hopes the legislature would take more time to ensure that
its intent is clearly expressed in other arenas and written into
law. She also hopes the process changes so that the public gets
a better product for comment so that the end result is more
realistic.
SENATOR OGAN pointed out that a check and balance exists in that
the Administrative Regulation Review Committee reviews
regulations and the legislature can hold hearings and change a
statute to clarify its intent.
MS. LABOLLE thanked committee members for taking up this
discussion. She felt the committee's review brings to the
public's attention the fact that changes need to be made to the
entire process.
CHAIR SEEKINS said one reason for the hearing is a renewed
interest on the part of the legislature in how it can be
involved in the final regulation that will apply the law it
wrote. He noted it is easy to take excerpts of the record and
piece them together to prove almost any intent. The legislature
needs to be able to trust that the administration has the same
intent the legislature did when the bill passed. That concern is
greater when the legislature is at odds with the agency that
will be affected by a statute. Sometimes subtle and not-so-
subtle changes in the regulations are made that do not carry out
the legislature's intent. He said the legislature has renewed
interest in whether it should "run the flag up the flagpole" to
point out to the general public that there is a tension here,
and that the regulations, although available for public comment,
do not get anywhere near the light of day that the legislature's
activities do. Regulations are numerous and complex; the media
does not hover over every proposed regulation to see whether it
carries out the intent of the law.
CHAIR SEEKINS said the legislature defined a professional
lobbyist last year as a person who engages in the business,
occupation, or profession of influencing legislative or
administrative action.
MS. LABOLLE said that defines her profession.
CHAIR SEEKINS continued that the law says or a person who
receives wages or other economic consideration including
reimbursement of travel and living expenses to communicate
directly with any public official for the express purpose of
influencing legislative or administrative action during more
than 40 hours in any 30 day period in any one calendar year. He
recalled the legislature intended that to apply to an employee
of a company who was communicating directly with a legislator
for the purpose of influencing legislation or administrative
action. He asked if that person could hypothetically be called
an employee lobbyist.
MS. LABOLLE said yes and that some employees might be called a
government relations person among other titles. She pointed out
that a person involved in government regulations might have to
watch and track the issues and bills before the legislature yet
have no issues of concern that come up in an entire year.
CHAIR SEEKINS said that "influence" is a key word.
MS. LABOLLE replied, "Influence and direct communication are
very key words."
CHAIR SEEKINS asked if a VP of government relations who
monitored legislation and kept a good relationship with
legislators in case something did come up would be considered to
be a lobbyist.
MS. LABOLLE said if he had not directly communicated with the
legislature to influence, he would not be.
CHAIR SEEKINS asked how that would apply to a government
employee. He said the governor regularly proposes legislation
and members of the state departments try to influence
legislators on the outcome of that legislation.
MS. LABOLLE said they are exempt and she does not know why.
CHAIR SEEKINS commented that as a legislator, he can lobby
another senator about a pet bill yet he is not regulated, nor is
the media, which publishes stories to inform the public or
influence action.
MS. LABOLLE said in her opinion, the media is lobbying when it
only reports one side of an issue.
CHAIR SEEKINS asked if the state can only regulate people who
are in business.
MS. LABOLLE said that is essentially correct.
CHAIR SEEKINS asked Ms. LaBolle how many businesses the Chamber
represents.
MS. LABOLLE replied approximately 700 businesses with about
70,000 employees.
CHAIR SEEKINS asked Ms. LaBolle if she could suggest a better
way to get public input into the regulation making process.
MS. LABOLLE said in the Chamber's opinion, the process is
broken. Three pieces of legislation have been introduced to fix
the regulatory process, which the Chamber supports. In addition,
the Chamber has always supported a constitutional amendment to
allow the legislature to remove a regulation that contradicts
the legislative intent. She repeated that when misinformation is
put forth to the public, the public comments are invalid, and
questioned why a legal review of those regulations was not
undertaken to ensure the intent was met and that the citations
were correct. She noted she spent a considerable amount of time
reviewing the regulations and hired an attorney to help, which
cost the Chamber, and those efforts were a waste of time. She
repeated that she believes the entire regulatory review process
needs to be tuned up.
CHAIR SEEKINS pointed out that last year, during the hearings on
the lobbying bill, several people expressed concern that once
they registered as lobbyists, they gave up certain
constitutional rights, such as the ability to fully participate
in the political process as any other person. Lobbyists cannot
serve on a state board or commission, serve as a campaign
director or treasurer, host a fundraising event, or engage in a
legislative campaign, etcetera.
MS. LABOLLE said the sad part about that is those very citizens
are the types who show interest in legislative activity but, by
so doing, they must become lobbyists and are then prohibited
from participating in the campaign cycle.
SENATOR OGAN felt the committee was discussing several First
Amendment issues. He said he does not want to live in a society
without a free press, but the press does attempt to influence
legislation and the outcome of elections. He does not want to
inhibit the press's ability to do that. He then said there is a
perception that lobbyists are involved in all kinds of back room
deals, where everyone smokes Cuban cigars, but in reality,
legislators are accessible to constituents when at home so more
politics happen in grocery stores.
MS. LABOLLE told members that she also lobbied in Arizona's
capital, Phoenix. She found that the Capitol in Phoenix got less
attention from the public than the Capitol in Juneau, despite
the larger population. She does not think it matters where a
capital is located. The people who care and take an interest in
what is happening in their government will make it their
business to participate. Unfortunately, the majority of people
don't care. She said she is proud to be a lobbyist because she
believes lobbyists provide information and explain the pros and
cons of an issue to very busy people. She does not know how the
legislature would find that kind of information without
lobbyists. Lobbyists must be accurate and honest, otherwise
their careers are over. She repeated that it is important that
lobbyists be identified and that business people who only want
to participate in the process have that ability without losing
certain constitutional rights.
CHAIR SEEKINS said that was the legislature's intent and is
reasonable. He noted that he depends on lobbyists quite
frequently to get information that he would not otherwise have
available. If he were to find that a lobbyist deliberately
deceived him, that lobbyist would not be welcome in his office.
TAPE 04-15, SIDE B
CHAIR SEEKINS said he often has to rely on the information
provided to him by a lobbyist, as he doesn't want to be called
on the carpet later on. He then asked Mr. Wood and Ms. Jacobsen
to testify.
MR. LARRY WOOD, one of five APOC commissioners, introduced
Andrea Jacobsen, the Chair and public member of APOC. He
informed members that today is Ms. Jacobsen's last day of
service after five years. He told members that one would expect
the APOC to be more partisan in nature but it is not. He has
been pleased to serve with people of great integrity and
honesty.
MR. WOOD said, regarding the APOC regulations, the regulations
are in the drafting process and in the public comment period.
However, because of the comments APOC has received, it plans to
take those regulations off of the table and rework them. He made
two points. With regard to the [citation] problems, the revisor
of statutes came back with new numbers after the regulations
were codified so staff was already aware of the fact that the
numbers needed to be changed. The second point is in regard to
the definition of "employee lobbyist." Ms. LaBolle said she
falls in the A category.
CHAIR SEEKINS said he would place her in the B category.
MR. WOOD said he walked away last year thinking that people like
Ms. LaBolle's primary responsibility, even though she is not a
contract lobbyist, would fall under A, the profession or the
occupation for the business. However, the uncertainty arises
because B says "or wages." Therefore, some people like Ms.
LaBolle believe they fall under the B category so the 40-hour
rule applies and they do not need to register until they begin.
After reflecting on that problem and reviewing public comments,
his personal view is that employee lobbyists should be in
category B and keep an eye on the 40 hours. And, within the next
year, APOC would let lobbyists know how things look and what
differences it sees with registering employee lobbyists under
the old and new laws. He assured members that, while he has
heard terms like "end run" used, the APOC was attempting, in
good faith, to try to put its arms around something that was
perhaps better left alone. His personal view is to go with the
40-hour approach and report how that is going in the future. He
then noted he enjoys the democratic process - the flow of
information. APOC was in the midst of that process when this
problem came up. APOC has also promulgated a number of other
regulations that are working. He said it is difficult to sit
quietly and listen while a position is being presented that one
disagrees with. If all of the information could be put forward
simultaneously, he believes the opposing party would take a
different view. He asserted the APOC had no bad motives and was
not attempting an end run.
MS. ANDREA JACOBSEN, Chair of APOC, told members she believes
she represents the public because she is not affiliated with any
business, political party or lobbyist. In her opinion, the
reason that lobbyists should be regulated is that the public has
the right to know who is influencing government [officials] and
to what extent so that the public can determine who they want to
vote for. She pointed out that when APOC was designing the
proposed regulations, it did so at public meetings with
published agendas. APOC did not have the best turnout in terms
of public participation. However, public comment periods allow
members of the public who could not attend a meeting an
opportunity for input. When asked for advice, APOC staff has
struggled with the statutory definition of lobbyist because it
is difficult to determine who falls under the 40-hour rule and
who does not. During APOC's attempt to construct a definition,
it was trying to find verbiage that would be clear to everyone.
MS. JACOBSEN said APOC takes the public comments it receives to
heart. She believes the process does work. APOC's intent, when
it received the letters of concern, was to discuss those
regulations at its scheduled meeting today with input from the
public. She repeated the process works very well because these
regulations were not a "done deal." APOC was going through one
of the many steps in the process. She indicated, regarding the
citation errors, that the publisher had re-alphabetized
something and did not notify APOC, so the problem is not
associated with the legal review. She told members given that
all proposed regulations were put out for public comment, APOC
would like to bifurcate those that are not "broken" and move on
so that it can better address the needs of its agency.
SENATOR OGAN jested that one of the unintended consequences that
may be a positive of last year's legislation is that he has
talked to lobbyists who could be exempt but choose to register
so that they do not have to contribute to candidates in their
districts.
CHAIR SEEKINS stated, for the record, that he has known Mr. Wood
for a very long time. He opined:
The business community is not worried. They're not
trying to hide in the dark. They would have no problem
registering as someone who is trying to influence
legislation or administrative action if they didn't
lose their right to participate in the political
process equal to the same government employee who is
lobbying us on behalf of keeping his job. I mean if
we're looking for full disclosure as to who's trying
to influence legislators that's one thing. No one
would object to that. If it is the public's right to
know, no one objects to knowing who is talking to
legislators about legislative issues. It's that if
they hit a certain mark, they lose their ability to
participate in the political process equal to everyone
else out there.
There's the whole threat and the whole reason that the
business community is concerned because they look at
this as a possible threat by people who want to
eliminate them from the political process, not because
of the public's right to know. And I don't know a
businessperson in the state that would object to
putting their name on a list - I'm going to try to
influence the legislature on a bill - if they didn't
have the threat of losing that constitutional right.
That's why they're looking at you through a microscope
because they're not sure if that's your intent or not
because they don't know you....
CHAIR SEEKINS suggested that this discussion might go away if
the legislature eliminated some of the lobbyists' loss of
constitutional rights.
9:10 a.m.
SENATOR OGAN mentioned that he has been through five election
cycles and has always had positive dealings with APOC, even
though he is not an immaculate record keeper. He said APOC staff
has been easy to work with and has given clear direction anytime
problems arose, and that he believes all contributions should be
transparent.
MR. WOOD thanked Senator Ogan for the feedback.
CHAIR SEEKINS agreed that legislators should report every dollar
that is donated to their campaigns and noted the legislature
passed legislation to that effect last year. He then thanked Mr.
Wood and Ms. Jacobsen.
There being no one else wishing to testify, he told participants
the committee held this hearing for several reasons. The first
was to let the people, who have perceived the proposed
regulations as a thinly veiled attempt to further infringe on
their constitutional rights, have an open discussion with those
promulgating the regulations and the legislators who initiated
the bill last year to clear up the intent. He said if any
regulatory agency ever has a question about the intent of
legislation he sponsored, he would want the agency to call him
for his opinion. He noted the legislature is concerned that
regulations can change the intent of legislation without
intending to do so. He then announced a 5 minutes recess.
SB 336-CORRECTIONS: FEES/SURCHARGE
CHAIR SEEKINS announced that SB 336 was before the committee.
SENATOR OGAN questioned why the charge is only $100 for
violating probation. He felt that amount will not provide enough
incentive.
MS. PORTIA PARKER, Deputy Commissioner of the Department of
Corrections (DOC), told members that SB 336 requests a
correctional facility surcharge for offenders who have been
convicted of felony and misdemeanor charges. DOC researched
other states' fees, and found they charge a variety of booking
fees, administrative surcharges and other fees. Those fees range
from $20 to $250, depending on the state and whether the fee is
issued by an intake facility, jail, or long-term facility.
Because the State of Alaska has a unified [corrections] system,
the state operates all jails and prisons. Other states have
county and city facilities. Most of the fees in other states
were challenged and upheld in different jurisdictions if the
fees were uniform and treated people equally. She noted that DOC
believes that charging a fee for a conviction as part of the
court judgment would be the safest and easiest way to avoid
challenge, rather than charging a booking or intake fee, which
is problematic when charges are dropped or the offender is not
convicted. DOC decided on the $100 amount based on what it
believes can be collected from this population.
DEPUTY COMMISSIONER PARKER explained the second part of SB 336
pertains to a $100 application fee for an interstate transfer
for those on probation or parole. Most states have such a
transfer fee. The applicant will also have to file cash or a
bond because DOC often has to go out-of-state to return the
offender to Alaska if the offender commits a crime.
SENATOR OGAN noted that SB 336 does not address indigent people
who cannot pay and he suspects a number of offenders will fall
in that category.
DEPUTY COMMISSIONER PARKER deferred to the Department of Law for
an explanation of the collections process but pointed out that
permanent fund dividends can be garnished, as well as any wages
earned while incarcerated.
SENATOR OGAN questioned whether felons are eligible for
permanent fund dividends.
DEPUTY COMMISSIONER PARKER deferred to the Department of Law for
an answer.
SENATOR OGAN said he would be willing to propose an amendment to
increase the $100 fee for parolee release to provide a
disincentive to violating parole.
CHAIR SEEKINS asked if the $100 would be collected when a
prisoner is released on parole or whether it would be collected
if the person ends up back in jail.
DEPUTY COMMISSIONER PARKER said the $100 surcharge on probation
and parole is suspended so it does not have to be paid unless an
offender violates the conditions of probation or parole. She
explained that a felon who is incarcerated would have to pay the
$100 correctional facility fee and then an additional $100 fee
if that felon is released on parole or probation and violates
the conditions. She further explained that a small number of
offenders who want an interstate transfer will also have to post
cash or a bond and that is only paid if DOC has to pick the
person up out-of-state for a violation.
MR. MARC ANTRIM, Commissioner of DOC, clarified that SB 336 does
not address parole. Probation is a function of the court; parole
is the function of an independent board. There is no interaction
between the court system and the parole board so SB 336 does not
have a fee collection process attached to it.
CHAIR SEEKINS indicated that SB 336 is basically a revenue bill
that attempts to recover some of DOC's costs.
COMMISSIONER ANTRIM said that is correct.
CHAIR SEEKINS asked how much DOC expects to recover at 100
percent.
COMMISSIONER ANTRIM said about 30,000 bookings are made each
year but not all of those folks are convicted.
DEPUTY COMMISSIONER PARKER added that the DOL's fiscal note is
based on what DOL believes it can collect, not on 100 percent
collection.
MS. KATHRYN DAUGHHETEE, Director of the Administrative Services
Division, DOL, answered the amount would be $1.3 million if 100
percent was collected.
CHAIR SEEKINS said he watches the judicial system on a routine
basis and often questions, when he sees a DUI reported in the
newspaper, how a $1,000 mandatory fine can be reduced to $300.
He believes the court's rationalization is that it is better to
collect some amount from people who cannot pay the full amount.
He questioned whether the courts will further reduce the fines
if offenders must pay these other fines.
COMMISSIONER ANTRIM believed the court's intent is to suspend,
not reduce, the fine to exercise a hammer on a subsequent
offense. He noted that in a typical DUI case, an offender might
be fined $1000 with $250 suspended and the jail time would be 10
days with 7 suspended. However, if that person gets a second
DUI, the $250 fine and 7 days in jail would be added to the next
sentence.
CHAIR SEEKINS said he has no problem with trying to collect the
fines when possible because incarceration is expensive.
SENATOR OGAN jested that the state could probably contract with
the Hilton Hotel to house prisoners for a lesser amount than
prison cells.
CHAIR SEEKINS took public testimony.
MS. BARBARA BRINK, public defender for the State of Alaska, told
members that she fears that as the state continues to add
surcharges and fees, it might be imposing burdens on people that
are impossible to meet. Those people who are getting released
from custody have families to support and bills to pay. In
criminal cases, their most pressing obligation is to pay
restitution. In addition, most of these people are disqualified
from receiving a permanent fund dividend. She pointed out that
according to a recent Alaska Judicial Council study, public
attorneys handle 80 percent of all criminal cases. Collecting
fees from 80 percent of that population will be very difficult.
Many of these people have already been fined: the mandatory
minimum fine for DUI penalties ranges from $1500 to $10,000.
Essentially, the state already charges a conviction surcharge of
$100 for a felony, $50 for a misdemeanor, and $75 for a DUI.
Those fees are used for public safety training. Defendants who
need treatment are referred to the Alcohol and Safety Action
Program, and those defendants pay a $100 fee, half in cash,
before they are even accepted to the program. And people serving
sentences for DUIs must pay their cost of imprisonment. Those
costs range from $236 to $2,000. On top of that, the state
imposes Rule 39 costs, which requires offenders to pay $250 to
$5000 for their [court-appointed] lawyer.
MS. BRINK cautioned that because of the way this fine is
imposed, when an offender is brought to jail, whether booked or
not, it provides a lot of opportunity for unfair application.
The fine will be based solely on whether the police officer or
district attorney chooses to issue a summons or to arrest
someone. She feels it is particularly onerous to impose a fee of
$100 and a bond requirement for those who would like to get an
interstate transfer. It seems the state would want to encourage
people to be with families and support networks in other states
while on probation rather than to stay in Alaska because they
cannot pay the fee.
SENATOR OGAN asked Ms. Brink if the statistic she cited about 80
percent of criminal defendants being represented by public
defenders includes people who are on public assistance.
MS. BRINK said it does. A person on public assistance is
presumed to be indigent and is entitled to public counsel. Of
the 80 percent, 63 percent are appointed a public defender and
17 percent are appointed to the Office of Public Assistance.
SENATOR OGAN said his knee-jerk reaction is that public
assistance should be cut off for repeat felons.
CHAIR SEEKINS asked if a booking facility is a correctional
facility.
COMMISSIONER ANTRIM said it is.
CHAIR SEEKINS asked if any person who is convicted would pay for
the booking, even if that person does not spend a day in jail.
COMMISSIONER ANTRIM said that is correct. He then agreed with
Ms. Brink that a lot of fees already exist but some people keep
re-offending and find money to buy drugs and alcohol and pay
impound fees for their cars. He does not believe an additional
$100 will slow them down. He noted the bond for the Interstate
Compact is designed to recoup some of DOC's costs. DOC must fly
a state trooper to another state and usually house that person
for a night so DOC must buy three plane tickets and pay per diem
plus the personnel costs.
CHAIR SEEKINS informed members that an amendment proposed by DOC
had been distributed.
DEPUTY COMMISSIONER PARKER told members that DOC worked with the
court system and DOL on the amendment, which makes some
technical changes to improve the collection procedure,
particularly as it relates to the probation fee.
SENATOR THERRIAULT moved to adopt the proposed amendment
[Amendment 1], which reads as follows.
A M E N D M E N T 1
OFFERED IN THE SENATE TO SB 336:
Page 2, lines 5 and 6:
Delete: ", as a condition of probation,"
Page 2, line 14:
Between "under" and "this" insert: "(a) of"
Page 2, line 15:
After "conviction." Insert: "The court shall include the
imposition of a surcharge under (c) of this section in the order
revoking probation."
Page 2, line 20:
After "28.30.032(o)." insert, "The state may enforce
payment of a surcharge under this section under AS 09.38 as if
it were a civil judgment enforceable by execution. This
subsection does not limit the authority of the court to enforce
fines."
SENATOR OGAN objected for the purpose of discussion. He asked if
the intent of the amendment is to allow a person who cannot pay
to be put on probation.
DEPUTY COMMISSIONER PARKER said if a person is on probation and
their provision is revoked, that person will have to pay the
$100 fee. That language was rewritten so that the fee is not
listed as a condition of probation because there was no way to
make that work. The fee would be imposed once revocation occurs.
SENATOR OGAN asked for a description of the second change the
amendment will make.
DEPUTY COMMISSIONER PARKER deferred to DOL.
TAPE 04-16, SIDE A
MS. ANNE CARPENETI, representing the Criminal Division of DOL,
told members that the amendment was suggested by a judge who
reviewed the bill and was concerned about the possibility of
collecting the surcharge for revocation of probation. DOL agreed
with the judge's assessment and made minor amendments to make
the collection of that surcharge similar to the process used to
collect the facilities fee.
SENATOR OGAN referred to the language on page 20 and asked what
"a civil judgment enforceable by execution" means.
MS. DIANE WENDTLANDT, Assistant Attorney General, DOL, explained
it means that DOL can garnish permanent fund dividends, wages,
or bank accounts. In general, DOL would not do that for amounts
as small as $100. DOL handles a large volume so it is not
economically feasible to do more than attach the permanent fund
dividend. Without the amendment, DOL would be unable to get a
writ of execution, meaning it could not do any involuntary
collection. DOL could only accept voluntary payments, which
would be fairly low.
SENATOR OGAN referred to the fiscal note and asked if the state
will collect more money than the collection costs.
CHAIR SEEKINS said that depends on how much can be collected.
SENATOR OGAN removed his objection to adopting Amendment 1,
therefore it was adopted.
CHAIR SEEKINS closed public testimony.
SENATOR OGAN moved CSSB 336(JUD) from committee with individual
recommendations and attached fiscal notes.
CHAIR SEEKINS announced that without objection, the motion
carried. He then adjourned the meeting at 9:55 a.m.
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