03/02/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| SB104 | |
| Start | |
| SB104 | |
| SB84 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | SB 104 | ||
| = | SB 84 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 2, 2005
8:47 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Charlie Huggins, Vice Chair
Senator Gene Therriault
Senator French
Senator Gretchen Guess
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 104
"An Act relating to the crime of misrepresenting permanent fund
dividend eligibility; requiring the establishment of a permanent
fund dividend fraud investigation unit in the Department of
Revenue; and providing for an effective date."
MOVED CSSB 104(JUD) OUT OF COMMITTEE
SENATE BILL NO. 84
"An Act relating to the confidentiality of investigations, court
hearings, and public agency records and information in child-in-
need-of-aid matters and certain child protection matters;
relating to immunity regarding disclosure of information in
child-in- need-of-aid matters and certain child protection
matters; amending Rules 3 and 22, Alaska Child in Need of Aid
Rules of Procedure; and providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 104
SHORT TITLE: PERMANENT FUND DIVIDEND FRAUD
SPONSOR(s): SENATOR(s) SEEKINS
02/14/05 (S) READ THE FIRST TIME - REFERRALS
02/14/05 (S) STA, JUD
02/22/05 (S) STA AT 3:30 PM BELTZ 211
02/22/05 (S) Heard & Held
02/22/05 (S) MINUTE (STA)
02/24/05 (S) STA AT 3:30 PM BELTZ 211
02/24/05 (S) Moved CSSB 104(STA) Out of Committee
02/24/05 (S) MINUTE (STA)
02/28/05 (S) STA RPT CS 4DP SAME TITLE
02/28/05 (S) DP: THERRIAULT, ELTON, HUGGINS, DAVIS
03/01/05 (S) JUD AT 8:30 AM BUTROVICH 205
03/01/05 (S) Heard & Held
03/01/05 (S) MINUTE (JUD)
BILL: SB 84
SHORT TITLE: CHILD PROTECTION CONFIDENTIALITY
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/26/05 (S) READ THE FIRST TIME - REFERRALS
01/26/05 (S) HES, JUD, FIN
02/07/05 (S) HES AT 1:30 PM BUTROVICH 205
02/07/05 (S) Heard & Held
02/07/05 (S) MINUTE (HES)
02/09/05 (S) HES AT 1:30 PM BUTROVICH 205
02/09/05 (S) Moved CSSB 84(HES) Out of Committee
02/09/05 (S) MINUTE (HES)
02/14/05 (S) HES RPT CS 4DP 1NR SAME TITLE
02/14/05 (S) DP: DYSON, ELTON, WILKEN, GREEN
02/14/05 (S) NR: OLSON
02/23/05 (S) JUD AT 8:30 AM BUTROVICH 205
02/23/05 (S) Scheduled But Not Heard
02/24/05 (S) JUD AT 8:30 AM BUTROVICH 205
02/24/05 (S) Heard & Held
02/24/05 (S) MINUTE (JUD)
WITNESS REGISTER
Ms. Sharon Barton, Director
Permanent Fund Division
Department of Revenue
PO Box 110400
Juneau, AK 99811-0400
POSITION STATEMENT: Testified in support of SB 104
Mr. Dan Boone
Department of Revenue
PO Box 110400
Juneau, AK 99811-0400
POSITION STATEMENT: Testified in support of SB 104
Mr. Chris Poag, Attorney
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified in support of SB 104
Ms. Gail Voigtlander, Supervising Attorney
Anchorage Attorney General's office
th
1031 W. 4 Ave
Anchorage, AK 99501
POSITION STATEMENT: Commented on SB 84
Ms. Marcie Kennai
Department of Health & Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Testified in support of SB 84
Ms. Dianne Olson
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified in support of SB 84
Mr. Scott Calder
Fairbanks, AK
POSITION STATEMENT: Testified in opposition of SB 84
ACTION NARRATIVE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:47:41 AM. Present were Senators
Hollis French, Charlie Huggins, Gene Therriault, Gretchen Guess
and Chair Ralph Seekins.
SB 104-PERMANENT FUND DIVIDEND FRAUD
8:47:41 AM
CHAIR SEEKINS announced SB 104 to be up for consideration.
SENATOR HUGGINS moved to adopt Version \I as the working
document. With no objections, the motion carried.
8:49:13 AM
CHAIR SEEKINS asked Sharon Barton to comment on Version \I.
MS. SHARON BARTON, director, Permanent Fund Division (PFD), told
members the legal drafter worked the PFD violations into
existing law. The intent of including the language on Section
10, paragraph (5) is, absent that language, the court would have
the option of prosecuting PFD violations as either a misdemeanor
or a felony. Version \I clarifies that PFD violations can be
prosecuted under its own section.
MR. CHRIS POAG, attorney, Department of Law (DOL), testified
Section 10, paragraph (5) does two things. An applicant might
submit documentation to accompany an application to the PFD
division. However, a person might also be contacted by a
division employee and provide information verbally. Section 10
addresses phone representations because currently falsifying
information on the phone is not covered under unsworn
falsification. He recommended changing the reference on line 31
from AS 11.56.210 to AS 11.56.205.
8:52:13 AM
CHAIR SEEKINS asked whether that change would mean a person
convicted of a felony could not be found guilty of a
misdemeanor.
MR. POAG explained:
If you submit an application and it contains false
information, that's a written or recorded statement.
If you call the PFD division on the phone and make
representations over the phone - oral representations
- those oral representations don't constitute a
violation of the felony act. But those are two
separate acts that could be two separate criminal
offenses, one being oral representation.
SENATOR THERRIAULT asked if the DOL wants to make sure the
written violation should not be prosecuted as a misdemeanor.
MR. POAG answered correct. He said as the bill is written, there
is the potential ambiguity that false information could include
that written or recorded statement.
SENATOR THERRIAULT proposed Amendment 1:
Page 4, line 31, delete AS 11.56.210 and insert AS
11.56.205.
With no objections, Amendment 1 was adopted.
8:53:47 AM
CHAIR SEEKINS asked Ms. Barton if SB 104 gives the PFD division
the ability to access the databases.
MS. BARTON said she did not know.
CHAIR SEEKINS advised the intent of the committee was to pass SB
104 out of committee.
SENATOR GUESS asked Ms. Barton whether a false application
representing a child was covered.
MS. BARTON answered yes.
8:55:26 AM
SENATOR FRENCH asked the number of prosecutions that occurred
last year.
MS. BARTON said there were no state prosecutions and one federal
prosecution.
SENATOR FRENCH asked whether there were no state prosecutions
because the felony charge was not available.
MS. BARTON said the main reason was the lack of such a provision
in the statute. The federal government is currently attuned to
social security, mail and wire fraud and so it has two or three
Alaska cases under consideration.
8:57:34 AM
MR. POAG said Alaska had one state indictment but as part of a
plea agreement there was no conviction for the PFD fraud charge.
SENATOR FRENCH asked Ms. Barton who would investigate PFD fraud.
MS. BARTON advised that chief investigator Dan Boone would be
responsible.
8:59:12 AM
MR. DAN BOONE, investigator, Department of Revenue, PFD
Division, advised the committee the division submitted two
cases. One was declined and was prosecuted by the federal
government, resulting in a conviction. The other case was
resolved to a felony DUI and the fraud convictions were dropped.
Currently the division is using the federal government to obtain
prosecutions because state law does not provide enough
enforcement power.
CHAIR SEEKINS asked Mr. Boone the number of fraud cases he
expects to investigate.
MR. BOONE indicated ample opportunity for prosecution. Out of
the 1,600 fraud tips the dividend received, 48 percent resulted
in an action. SB 104 would mainly be used to educate the public
and deter people from falsifying statements. The DOR is headed
toward using online applications and electronic signatures,
which are hard to investigate. Educating the public will be a
priority, as the division wants to deter people from filing
false applications by letting them know beforehand they will be
committing a felony.
9:02:09 AM
CHAIR SEEKINS asked Ms. Barton how the public would be notified
regarding falsifying applications.
MS. BARTON replied the application contains conspicuous language
regarding consequences of falsification. That language will be
"beefed up" if this law passes.
SENATOR HUGGINS voiced concern about college students and
military personnel because of additional hurdles they must pass
when applying for a dividend, especially time delays experienced
by overseas military personnel.
9:03:47 AM
MS. BARTON said students submit a form from the registrar's
office to certify enrollment. The division is also attuned to
the special needs of military personnel and is liberal with time
extensions for both students and military personnel. She noted
that even after denial, the division would reconsider the
circumstances. A power of attorney can also be used to file an
application. She noted a new law passed last year allows
military personnel to apply an additional 90 days after they are
removed from an area where they receive combat pay.
9:08:04 AM
SENATOR HUGGINS asked Ms. Barton the number of students and
military personnel who are not getting their dividends.
MS. BARTON advised small numbers of people are denied because of
inability to provide proper documentation. The majority of
problems occur because people lose their documentation.
9:10:26 AM
CHAIR SEEKINS asked whether it was an automatic disqualifier
when someone moves to another state.
MS. BARTON replied there is no simple question regarding
eligibility. Registering to vote or applying for a fishing
license in another state disqualifies a person from receiving a
PFD.
SENATOR HUGGINS commented military personnel are eligible for
resident hunting and fishing licenses in other states. He hoped
that does not disqualify them.
9:13:31 AM
CHAIR SEEKINS said he knows people who never intend to come back
but draw a PFD.
SENATOR FRENCH asked Mr. Boone the number of total cases
referred out of the division.
MR. BOONE replied that the division's goal is to get money back
to the state, not to prosecute. However, some egregious cases
need to be prosecuted.
9:17:43 AM
CHAIR SEEKINS asked Ms. Barton whether she was satisfied with SB
104.
MS. BARTON answered yes.
SENATOR THERRIAULT moved CSSB 104(JUD) out of committee with
individual recommendations and zero fiscal notes. There being no
objections, CSSB 104(JUD) passed out of committee.
CHAIR SEEKINS announced a brief recess at 9:19:29 AM.
CHAIR SEEKINS reconvened the meeting at 9:31:50 AM.
SB 84-CHILD PROTECTION CONFIDENTIALITY
9:31:50 AM
CHAIR SEEKINS announced SB 84 to be up for consideration.
SENATOR HUGGINS moved to adopt Version \F as the working
document. Hearing no objections, the motion carried.
CHAIR SEEKINS asked Gail Voigtlander to brief the committee on
the immunity section of SB 84.
MS. GAIL VOIGTLANDER, supervising attorney, Anchorage Attorney
General's Office, introduced the changes to the bill. She
understood the committee was concerned about immunity in the
original Section 14. She admitted it is difficult to draft
immunity language. The substitute language in the committee
substitute is designed to ensure defendants move to summary
judgment. The people at risk are court system employees.
9:38:26 AM
SENATOR THERRIAULT asked where the other immunity section was.
MS. VOIGTLANDER replied AS 47.35.810.
SENATOR THERRIAULT noted the new language in Section 14 sets the
bar very high.
9:40:50 AM
SENATOR FRENCH shared Senator Therriault's concern. He voiced
disappointment that the amendment didn't exclude gross
negligence. However, the jury will have to review whether gross
negligence occurred.
CHAIR SEEKINS advised he is open to amending the bill.
SENATOR THERRIAULT referred to AS 09.50.250 and AS 09.50.253,
both of which address immunity clauses. He suggested the
committee look at other immunity clauses, which are already in
the statutes.
CHAIR SEEKINS asked if other areas in the statutes cover state
employees.
SENATOR THERRIAULT answered AS 09.50.253 specifically refers to
state employees.
9:44:22 AM
CHAIR SEEKINS said the umbrella includes municipal and state
employees.
SENATOR THERRIAULT commented AS 47.35.810 says a person
operating under agreement with the department is immune from
civil liability.
9:45:07 AM
SENATOR FRENCH offered to have the Legislative Research
Department do a summary of the immunity clauses in the Alaska
statutes to make sure the standards all mesh.
CHAIR SEEKINS said he understands the importance of indemnifying
employees who need to work within the scope of their employment
and the legitimate best interest of the child.
9:47:27 AM
SENATOR THERRIAULT said malice is intentional.
CHAIR SEEKINS suggested asking the drafter to make sure Section
14 sets the same standard as that for other state employee
immunities, and also includes municipal employees.
9:48:33 AM
MR. SCOTT CALDER testified the purpose of SB 84 is sided toward
the Department of Health and Social Services (DHSS). The image
problem that DHSS has is self-imposed. State liability is a good
discussion to have. Negative instances occur within DHSS. He
voiced concern that DHSS is able to run the show. He said he
does not trust DHSS to divulge the truth and the public is not
able to correct any false information that may be exposed.
9:54:02 AM
MR. CALDER said parents should be able to obtain and evaluate
any information that DHSS has. Many parents have been shut out
of the process. The committee must carefully consider any matter
where a child is held by the state.
9:57:12 AM
SENATOR THERRIAULT reviewed SB 84 for drafting purposes and
pointed out that Section 11 needs clarification as to who is
covered with immunity.
Ms. DIANNE OLSON, senior attorney, Anchorage Attorney General's
office, explained Section 11 was read together with another
regulation.
SENATOR THERRIAULT said he wanted to make sure it was standard.
CHAIR SEEKINS perceived it allows sharing of confidential
information to people with a legitimate interest.
MS. OLSON said there are no regulations pertaining to who has a
legitimate interest.
SENATOR GUESS asked Ms. Olson why Section 3, lines 18-26,
doesn't include other parties.
MS. OLSON answered under AS 47.10 the person to be protected is
the child. The minor is the subject of the chapter. The concerns
that Senator Guess referenced could be brought up in court.
10:01:50 AM
SENATOR GUESS asked Ms. Olson if the courts have leeway.
MS. OLSON replied yes.
SENATOR GUESS asked why the guardian ad litem was removed on
Page 5, line 24.
MS. OLSON answered guardian ad litem are included through the
court rules process.
SENATOR FRENCH said Section 4 has a new subsection that allows
more open hearings in child in need of aide (CINA) cases unless
another section applies, closing the hearing. Section 6 suggests
sealing records after 30 days. He questioned sealing the records
of an open court proceeding.
10:04:16 AM
MS. OLSON said Section 6 pertains to the actual court records of
the child. There is a difference between the recording of a
hearing and the documents of a court case.
SENATOR FRENCH said he does not understand why an open court
proceeding should later be closed.
MS. OLSON explained if the court started opening records, people
would be able to view all the documents within the file. Some of
those documents are sensitive.
10:07:23 AM
SENATOR FRENCH advised he would consider working on an
amendment.
MS. MARCIE KENNAI, Department of Health and Social Services,
said the department looked at opening the court records, but the
intent is to ensure that family and child confidentiality is
maintained. DHSS has to submit items to the court such as a
mental health assessment, a person's HIV status and/or
participation in substance abuse treatment. The entire court
document would not necessarily come out in a hearing.
SENATOR GUESS asked Ms. Kennai whether DHSS discussed
consideration of a sunset.
10:10:36 AM
MS. KENNAI replied no. The department looked at other states'
laws; 18 have open hearings. There is public interest only in
very high profile cases.
CHAIR SEEKINS saw there were no other questions. He advised the
committee they would further review SB 84 in the next meeting.
The intent is to have the same level of immunity standardized.
SENATOR THERRIAULT suggested authorizing the drafter to converse
with the Department of Law.
There being no further business to come before the committee,
Chair Seekins adjourned the meeting at 10:13:48 AM.
| Document Name | Date/Time | Subjects |
|---|