SB 198-POLICE OFFICER PROTECTIONS/CERTIFICATION  2:43:15 PM CHAIR FRENCH announced the consideration of SB 198. SENATOR BILL WIELECHOWSKI, sponsor of SB 198, explained that the bill provides increased protections and basic due process rights for police officers faced with potential revocation of their certificates. Revocations would require a standard of clear and convincing evidence and follow the Administrative Procedure Act. The bill also allows the Alaska Police Standards Council to suspend rather than revoke a certificate when the situation warrants the lesser punishment. Additional provisions provide increased protection of personal information and address the issue of polygraph tests. He noted that the bill packet included information on a U.S. Supreme Court decision on the unreliability of polygraph tests. 2:45:36 PM  DAVE SEXTON, Executive Director, Alaska Police Standards Council (APSC), said the mission statement of APSC is "To produce a highly trained and positively motivated professional officers, capable of meeting contemporary law enforcement standards of performance." He listed the core services provided by APSC and said SB 198 cuts to the heart of several of these. He articulated three primary concerns. MR. SEXTON said the first concern is that SB 198 would inhibit APSC's ability to decertify an officer. This happens infrequently, just six times in the last five years. He explained that APSC staff investigates reported misconduct and gives the matter to the full council if it is appropriate. The full council reviews the facts before taking any action, and the officer has the option of appealing the APSC action through the court system. Requiring the council to give substantial weight to prior decisions and to adopt a standard of clear and convincing evidence singles out the APSC and holds it to a different standard than the 48 other boards and commissions, he said. MR. SEXTON said the second area of concern relates to restricting the use of polygraphs during a disciplinary proceeding. Because polygraphs are allowed in both pre- employment and in investigative situations, the APSC questions lowering that standard. He said he was not aware of a single decertification decision that hinged on a polygraph test. MR. SEXTON said the third area of concern relates to the requirement to stop providing photographs of officers in action. The bill would prohibit showing pictures of police officers in positive situations or hanging officers' pictures in city hall. This strips APSC of management rights to run progressive, community-oriented departments. Finally, he asked for a discussion about a longtime goal of the APSC to remove the words "full time" from the definition of "police officer." This would bring part time, seasonal, and reserve officers under APSC oversight, and protect cities and jurisdictions that try to do the right thing by hiring additional help only to find that their employees are operating outside regulations. He concluded stating that APSC opposes much of SB 198. 2:53:12 PM CHAIR FRENCH directed attention to Section 7, page 3, lines 28- 29, and asked if he thought that a police officer would object to having his or her picture hung in city hall, and withhold authorization. MR. SEXTON replied that was the concern. If an officer withheld his or her authorization there would not be a complete picture of the department. CHAIR FRENCH asked if he really thought a police officer would object to having his or her picture displayed. MR. SEXTON questioned why the provision was in the bill if that was not the purpose. SENATOR WIELECHOWSKI asked if he would object to keeping a police officer's home address confidential. MR. SEXTON said APSC believes that confidentiality is already covered, but did not objection to restating it in the bill. 2:54:40 PM  JOHN SKIDMORE, Director, Criminal Division, Department of Law (DOL), reviewed his professional credentials. Most recently, he was in charge of special prosecutions that included conflict cases dealing with peace officers. In his current position, he provides legal advice to the Alaska Police Standards Council. MR. SKIDMORE asked the committee to reconsider two provisions. The first concern is that Section 3 would bind the APSC in an employment action taken with an officer. He said the APSC strives to set minimum standards across the state for all officers to meet initially and after they become officers. The APSC wants standards of conduct to be consistent, but this provision requires the council to give substantial weight to the significance of prior decisions by individual departments, their lawyers, and court decisions. He questioned why the committee would want to bind the council's decision-making about who is a good, quality officer. 2:59:30 PM SENATOR WIELECHOWSKI asked if he believes that the council should give some weight to prior arbitrations and court appeals that found in favor of an officer if that officer is the subject of a subsequent termination case. MR. SKIDMORE said it is not a problem if the intent is for the council to consider that something occurred in the past. The problem is that the legislative intent and meaning of "substantial weight" is not clear. If the council's decision has to mirror something that happened in the past, that interferes with the ability of the council to have consistency across the state. He said he gets nervous when he does not know the legislative intent. SENATOR WIELECHOWSKI responded that this was establishing the legislative intent. SENATOR PASKVAN opined that nothing in the language would bind the council. To the contrary, the council would simply have to explain why the appellate procedure or administrative hearing officer decision is or is not significant. MR. SKIDMORE said he was comfortable with that reading. He was testifying to achieve the legislative intent to ensure that someone could not come back and argue the opposite. The council is capable of articulating a difference, he said. SENATOR PASKVAN reiterated that he did not perceive the language to include a binding requirement. 3:04:14 PM MR. SKIDMORE said a second concern relates to Section 2 that requires the council to use the clear and convincing evidence standard to prove the alleged conduct. He said he believes that people in public service and law enforcement ought to be held to a higher standard, because of their position of trust. This society trusts that people are not going to break the law. If they do, society trusts that law enforcement will help hold those people accountable. When someone breaks the law, there is a breakdown in some trust, and when it is a law enforcement officer or someone in that public service the violation of trust is twofold. The law was broken, and the person who was supposed to be upholding law is the one who broke it. That is significant and very offensive because it infringes upon the trust and credibility that society holds in those institutions that are supposed to provide protection. He said he heard the sponsor say that some organizations have a higher standard of evidence than clear and convincing, but he did not know which ones. SENATOR WIELECHOWSKI relayed that his staff asked Legislative Research to provide that information, but his understanding is that the Alaska Bar Association (ABA) uses the clear and convincing evidence standard. He offered to follow up with clarifying information. MR. SKIDMORE pointed out that the ABA was not one of the organizations listed under AS 44.62.330-44.62.630, the governing Act set forth in the bill. To increase the burden of proof indicates that the Legislature does not trust the credibility and discretion of the council. That seems counterproductive, he said. 3:09:04 PM JAKE METCALFE, Executive Director, Public Safety Employees Association (PSEA) Local 803, said he represents about 800 certified and non-certified police department employees. He briefly reviewed his legal career and said he wanted to talk specifically about the burden of proof, consideration of prior arbitration decisions, and why PSEA supports the bill. He described three PSEA termination cases where the arbitrators ruled that the employees should get their jobs back. The state challenged each ruling in superior court and lost. Two of the cases went to the state supreme court that upheld both decisions. Two of the cases went to the Police Standards Council, and the council revoked one certificate. The hearing officer challenged the decision because there was not a preponderance of proof. MR. METCALFE said that when the facts do not change between the arbitration hearing and council hearing, it is reasonable to ask the council to pay attention to those decisions and then require the same standard that has been followed through the employment procedure. 3:14:14 PM SENATOR WIELECHOWSKI expressed a desire to hear different views on the display of photographs, and weighing the public trust against the employee's right to due process. CHAIR FRENCH suggested that dialogs could happen in offices and over the telephone. He held SB 198 in committee.