HOUSE FINANCE COMMITTEE April 10, 1995 1:30 P.M. TAPE HFC 95-80, Side 1, #000 - end. TAPE HFC 95-80, Side 2, #000 - end. TAPE HFC 95-81, Side 1, #000 - 650. CALL TO ORDER Co-Chair Mark Hanley called the House Finance Committee meeting to order at 1:39 p.m. PRESENT Co-Chair Hanley Representative Martin Co-Chair Foster Representative Mulder Representative Brown Representative Navarre Representative Grussendorf Representative Parnell Representative Kelly Representative Therriault Representative Kohring ALSO PRESENT Representative Con Bunde; Jerry Luckhaupt, Legislative Legal Counsel, Legislative Affairs Agency; Margot Knuth, Criminal Division, Department of Law; Paul Grant, Alaska Civil Liberty Union; Rod Mourant, Staff, Representative Kott; Darrel Johnson, Department of Health & Social Services; Catherine Reardon, Director, Division of Occupational Licensing; Helen Mehrkens, Department of Education. SUMMARY HB 28 An Act relating to the possession of weapons within the grounds of or on the parking lot of preschools, elementary, junior high, and secondary schools or while participating in a school-sponsored event; requiring the expulsion or suspension of students possessing deadly weapons on school grounds; and relating to school lockers and other containers provided in a public or private school by the school or the school district. CSHB 28 (FIN) was reported out of Committee with "no recommendation" and with two zero fiscal notes by the Department of Education and Department of Public Safety, dated 2/22/95. 1 HB 233 An Act extending until 1999 the termination date of the Board of Clinical Social Work Examiners, Board of Marital and Family Therapy, State Medical Board, Board of Nursing, Board of Nursing Home Administrators, Board of Psychologist and Psychological Associate Examiners, Real Estate Commission, and Hazardous Substance Spill Technology Review Council; extending until 1996 the termination date of the Board of Marine Pilots and the Correctional Industries Commission; and providing for an effective date. HB 233 was HELD in Committee for further discussion. HB 269 An Act relating to credits against certain taxes for contributions to certain public educational radio and television networks and stations and to endowments for public educational radio and television networks; and providing for an effective date. HB 269 was rescheduled. HOUSE BILL NO. 28 "An Act relating to the possession of weapons within the grounds of or on the parking lot of preschools, elementary, junior high, and secondary schools or while participating in a school-sponsored event; requiring the expulsion or suspension of students possessing deadly weapons on school grounds; and relating to school lockers and other containers provided in a public or private school by the school or the school district." REPRESENTATIVE CON BUNDE, sponsor HB 28, testified in support of the legislation. He observed that the Federal Gun Free Schools Act was passed by Congress in response to increasing violence and guns in schools. This Act requires school systems to implement programs for the control of guns and weapons before receiving federal funding. He noted that HB 28 prohibits the possession of deadly weapons and defensive weapons on school grounds or in parking lots adjacent to public or private schools. A person can obtain permission to carry a prohibited weapon to use in an existing gun range. The legislation provides for a one year expulsion or suspension of a student that possesses a weapon on school grounds. Expulsion or suspension of disabled or special education students may be modified. The legislation requires an annual statistical report be submitted by the Department of Education regarding the number of students 2 expelled and the types of weapons involved. He observed that the legislation also allows locker searches in order to determine compliance with school regulations and state laws. Schools must display, in a prominent location, notification of the search policy. Representative Bunde emphasized that Alaska must comply with the Federal Gun Free Schools Act or lose federal dollars. He stressed that schools cannot function properly when students and teachers are concerned about their safety. In response to a question by Representative Mulder, Representative Bunde clarified that probable cause would remain in effect in regards to vehicle searches on school property. If a student is caught with a gun they would have to be expelled. Representative Brown provided members with Amendment 1 (Attachment 1). Amendment 1 requires that each school district adopt a policy providing for the "identification of procedures and conditions for early reinstatement of students suspended or expelled." She emphasized that federal law allows the reinstatement of students if there is a policy in place. Representative Bunde expressed concern that exemptions do not nullify the penalty. Representative Martin observed that ordinary citizens carry weapons in the back of pick up trucks in relation to hunting activities. He questioned the zero fiscal note accompanying the legislation. Representative Bunde expressed support for the use of weapons in connection with hunting or personal protection. He emphasized that guns could be carried in the trunk. Guns located in racks behind windows in pickup trucks would have to be removed. He stated that the Department of Education has indicated that there will be no fiscal impact as a result of the legislation. Representative Brown asked if there is a definition of "defensive weapon." Representative Bunde noted that "defensive weapon" is defined in AS 11.81.900(b)(16). In response to a question by Representative Brown, Representative Bunde clarified that probable cause would not apply to the search of school lockers. He emphasized that the expectation of privacy is lower on public property. Specific groups or certain areas of the school could not be singled out. Representative Brown questioned whether the sponsor would support language requiring reasonable suspicion before 3 allowing a search. Representative Bunde stated that he would not support the language. He stressed that research indicated that the removal of all school lockers reduced the amount of violence or theft in schools. He added that lockers are not private property and are often shared. Representative Navarre asked if a distinction could be made between preschool, elementary, junior high and secondary school students. He also referred to the drafting style of section 6. MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW stated that section 6 was properly drafted. Representative Martin reiterated concerns in regards to the inability to leave guns in truck racks. Co-Chair Hanley pointed out that current law prohibits guns on school grounds. He noted that the legislation adds mandatory expulsion of students that defy the prohibition. Representative Bunde agreed and added that the legislation would also increase the sanction for possession of unauthorized weapons by persons over the age of 21. Representative Brown asked for an explanation of changes made in sections 1 and 3. Ms. Knuth noted that sections 1 - 3 raise the penalty for possessing weapons on school grounds from a class B to a Class A misdemeanor. She noted that a class B misdemeanor is the lowest class crime in the state of Alaska. There are more options for sanctions under a class A misdemeanor. Ms. Knuth noted that the only provision required by the federal mandate is on page 3, lines 4 - 7. She observed that this section only refers to handguns. Only the possession of handguns would require the expulsion of students under this provision. Representative Grussendorf asserted that the legislation has grown beyond what was requested by the Department of Education. He suggested that section 6 would fulfill the desires of school districts. Representative Bunde replied that the schools want the ability to search school lockers. HELEN MEHRKENS, PROGRAM MANAGER, DEPARTMENT OF EDUCATION discussed federal requirements. She noted that federal law requires that schools have a policy that will expel students who bring a firearm to school or on school property for not less than one calendar year, assure that schools are in compliance, submit a one page report, and refer the student to the law enforcement or juvenile delinquency system. She noted that schools are not as safe as they once were. 4 Representative Martin expressed concern that the student's right to an education be fulfilled during their expulsion. Representative Bunde noted that students can be educated outside of the public school. He stressed that the safety and rights of the majority should be supported. Ms. Mehrkens assured, Representative Martin, that the Department anticipates that the federal reporting requirements will be a simple 3 to 4 hour process. In response to a question by Representative Kelly, Representative Bunde noted that federal law requires an exemption for special education students. He acknowledged that students with behavior problems would be special education students. Ms. Mehrkens noted that special eduction students cannot be expelled if they brought the weapon to school in connection with their disability. If the weapon was not brought in connection to their disability the student would be expelled. The school would be required to provide expelled special education students with educational services in another setting. Representative Brown referred to page 3, line 29 and page 2, line 19. She questioned if page 2, line 19 needed to have comas around "other than a loaded firearm" to clarify that the deadly weapon would have to be in the vehicle's trunk or a closed container in the vehicle. She observed that the section provides an exception for adults over 21 to carry deadly weapons in their vehicle's trunk. (Tape Change, HFC 95-80, Side 2) Discussion ensued in regards to the use of comas around "other than a loaded firearm. Ms. Knuth concluded that it would be clearer if the comas were placed. Representative Brown asked why the definition was expanded to include "deadly weapon." Ms. Knuth noted that current law does not allow loaded firearms under any circumstance including in the trunk of a car or a closed container. She agreed that the bill expands from firearms to deadly weapons those weapons that may be possessed in the trunk of a motor vehicle or a closed container in the motor vehicle. She stated that the provision would permit the possession of a filet knife which was contained in the trunk of a car by a person over 21 years of age. Members continued to discuss the drafting of page 2, line 19. Ms. Knuth noted that the former law only restricted the possession of firearms. The possession of deadly weapons is a new crime. The exception for deadly weapons is being made 5 on page 2, line 19, to allow possession in a closed trunk or closed container. Students would not be allowed to have knives or other deadly weapons. She clarified that federal law does not include deadly weapons. Ms. Mehrkens stated that most schools already use the broader Alaska definition of weapon. She noted that 25 students have been suspended for weapon violations in the largest school district. Ms. Knuth noted that Section 6 (a)(1) is required by the federal mandate. Section (a)(2), suspension of 30 days for the possession of a deadly weapon is optional. Representative Grussendorf questioned if the legislation could be reduced to only include Sections 5 and 6. Ms. Knuth stated that schools would like to expel students for the possession of deadly weapons in addition to firearms. She added that the legislation also changes the penalty. Representative Bunde noted that raising the penalty was his original motivation for introducing the legislation. The federal requirement came later. JERRY LUCKHAUPT, LEGISLATIVE LEGAL COUNSEL, LEGISLATIVE AFFAIRS AGENCY observed that the intent of page 2, line 19, is to allow an adult to possess a deadly weapon in the trunk of a vehicle. He noted that the deadly weapon cannot be a loaded firearm. He observed that the legislation would require that a weapon be placed in a trunk or a closed container in the vehicle. He conceded that the addition of comas around "other than a loaded firearm" would clarify the language. He emphasized that it would not be a crime to possess a deadly weapon in the trunk, as long as it is not a loaded firearm. Representative Brown clarified that there is no requirement that the container of trunk be locked. In response to a question by Representative Martin, Mr. Luckhaupt stressed that the federal requirement does not address sanctions against possession of firearms by persons who are not students. The penalty for possession by persons who are not students is being increased. Representative Bunde stressed that "out of sight, out of mind" applies to the gun that is in a trunk or container in a vehicle. PAUL GRANT, ALASKA CIVIL LIBERTIES UNION stated that they are in general support of HB 28. He expressed concern that the current language does not set up standards for the 6 exercise of discretion in regards to locker searches. He stated that there should be a reasonable suspicion requirement added to the locker search provision. Mr. Grant provided members with a copy of his written testimony (Attachment 2). He recommended that section 5 be deleted. In response to a question by Representative Martin, Mr. Grant clarified that probable cause is not needed to search a school locker. He maintained that the constitution requires a reasonable suspicion that there has been a violation of school policy. Representative Therriault suggested that posting a notice of the school's locker search policy would tell the student that they cannot expect confidentiality. Mr. Grant argued that constitutional rights of privacy ought not to be determined by written notices. He supported the notice requirement but argued that it did not justify a search. Mr. Grant noted that the Alaska Supreme Court has not ruled on what constitutes "reasonable suspicion". He observed that there has not been a warrant requirement in regards to school searches. He noted that the Court has generally ruled that there should be some greater standard than random searches by school administrators. He argued that the state of Alaska has, because of the specific right to privacy in the Alaska Constitution, afforded some protection from search and seizure that other jurisdictions have not provided. Representative Parnell agreed that there has not been a ruling by the Alaska Supreme Court. He questioned if there is a legitimate expectation of privacy in school lockers. Representative Bunde provided members with statistics of expulsions in Alaska school districts (Attachment 3). Representative Martin reiterated concerns that there would be fiscal impact as a result of the legislation. Representative Bunde repeated that there is only a reporting requirement. He emphasized that parents will have to be responsible for the education of students excluded from the school system. He emphasized that positive behavior be rewarded. Representative Brown MOVED to adopt Amendment 1. She spoke in support of Amendment 1. Amendment 1 requires that each school district adopt a policy providing for the "identification of procedures and conditions for early reinstatement of students suspended or expelled." She stressed that the amendment is supported by the Department of Education. 7 Ms. Mehrkens stated that school districts appear to already have procedures in place to allow students on a case by case basis to come back into the school system. Representative Martin observed that the legislation would require a one year expulsion. Co-Chair Hanley stated that the administrative officer may on a case by case basis modify or reduce the suspension. (Tape Change, HFC 95-81, Side 1) Representative Brown argued that Amendment 1 would make the decision to reinstate students less arbitrary. She stressed that schools would set guidelines for making case by case decisions. Representative Parnell suggested that it would be hard to assess expulsions on a case by case basis if procedures exist. Ms. Mehrkens gave examples of procedures by school districts. She noted that the appeal process is generally used. She stated that federal law is clear that the case by case exemption needs to be addressed on an individual student basis. General policy cannot be used for all students. Representative Bunde suggested that guidelines would circumvent the case by case review. Ms. Knuth asserted that expulsion without alternative education opportunities will result in a fiscal impact to state criminal and social programs. She noted that the Federal Gun Free Schools Act authorizes states to leave it to the schools to come up with alternative placements. She noted that students are expelled for a variety of other reasons which do not have a comparable state requirement for alternative placement. Ms. Knuth stated that it makes sense to ask schools to develop procedures for reinstatement. She suggested that provisions could set out time frame lines for when things occur, such as hearings. Representative Bunde noted that the legislation requires due process proceedings. A roll call vote was taken on the MOTION to adopt Amendment 1. IN FAVOR: Therriault, Brown, Kohring, Martin, Navarre, Foster OPPOSED: Mulder, Parnell, Hanley 8 The MOTION PASSED (6-3). Representative Brown provided members with Amendment 2 (Attachment 4). She noted that Amendment 2 would add a reasonable suspicion standard to locker searches. She referred to a Supreme Court ruling, involving the state of New Jersey, that stated that by general rule a search of a student by school officials is permissible if it does not go beyond the scope or the circumstances justifying it and if the search is based on reasonable grounds for suspecting that it will uncover evidence that the student has violated school rules. Ms. Knuth stated that the Court ruled that the 4th Amendment does apply to searches conducted by school officials. She noted that the search in question was conducted on the student's purse. She stressed that because school lockers are the property of the school and students don't have to use them, the 4th Amendment does not apply. She maintained that the legislation is a codification of what the constitutional law requires. She emphasized that the search cannot be more invasive or intrusive than what is necessary to find the type of contraband that schools are allowed to search for in lockers. She spoke in support of the second part of Amendment 2: "A search or examination under this section may not be more intrusive than reasonably necessary to meet the objectives of the search." Representative Brown MOVED to divide the question. She MOVED to adopt Amendment 2B, page 4, line 16, "A search or examination under this section may not be more intrusive than reasonably necessary to meet the objectives of the search." Ms. Knuth stated that Amendment 2B would clarify that a wallet within the locker, or another small container in which a gun would not fit, could not be searched. She acknowledged that a school could search all the lockers. Representative Bunde noted that students are notified in regards to the school's search policy at the time they register. There being NO OBJECTION, Amendment 2B was adopted. Representative Brown MOVED to adopt Amendment 2A, delete "to determine compliance with" and insert "if the person conducting the search is acting under reasonable suspicion that the search will provide evidence of a past or present violation of." A roll call vote was taken on the MOTION. 9 IN FAVOR: Brown, Kohring, Navarre, Foster OPPOSED: Martin, Mulder, Parnell, Therriault, Hanley Representatives Grussendorf and Kelly were absent from the vote. The MOTION FAILED (4-5). Representative Brown MOVED to insert comas around "other than a loaded firearm" on page 2, line 19. There being NO OBJECTION, it was so ordered. Representative Mulder MOVED to report CSHB 28 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. CSHB 28 (FIN) was reported out of Committee with "no recommendation" and with two zero fiscal notes by the Department of Education and Department of Public Safety, dated 2/22/95. HOUSE BILL NO. 233 "An Act extending until 1999 the termination date of the Board of Clinical Social Work Examiners, Board of Marital and Family Therapy, State Medical Board, Board of Nursing, Board of Nursing Home Administrators, Board of Psychologist and Psychological Associate Examiners, Real Estate Commission, and Hazardous Substance Spill Technology Review Council; extending until 1996 the termination date of the Board of Marine Pilots and the Correctional Industries Commission; and providing for an effective date." CATHERINE REARDON, DIRECTOR, DIVISION OF OCCUPATIONAL LICENSING spoke in support of HB 233. She noted that the Division has jurisdiction over seven of the eleven boards and commissions contained in the legislation. She pointed out that the fiscal note reflects the costs of the boards and commissions and the licensing activities under them. The fiscal note does not reflect an increase of cost. She emphasized that the licensing fees are directed by statute to cover the costs of licensing activities. When costs increase the fees are adjusted upward. Program receipts and expenditures are balanced. She stressed that the sunset audits recommended longer extensions than those included in the legislation. She noted that the Division of Legislative Budget and Audit suggested that longer extensions would save auditing money. Representative Grussendorf noted that the Division of 10 Legislative Budget and Audit's recommendation for extensions to the year 2004 was only accepted for the Real Estate Commission. The other boards and commissions were only extended to 1994. Ms. Reardon noted that the House Labor and Commerce Committee changed the extension date of the Real Estate Commission. DARREL JOHNSON, DIVISION OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES spoke in support of HB 233. He testified in support of the Special Eduction Service Agencies. He stressed that sunset of the Special Education Service Agency would impair families' ability to gain the support they need for special needs children and young adults. Representative Therriault provided members with Amendment 1 (Attachment 5). The amendment would eliminate the extension of the Hazardous Substance Spill Technology Review Council. Representative Therriault MOVED to adopt Amendment 1. He stated that the amendment reflects action taken in the operating budget. Representative Brown referred to a letter by Gary Thomas, Director, Prince William Sound Science Center (copy on file). Mr. Thomas stated that projects sponsored in part by the Council have had joint sponsorship by industry, federal and state agencies, public groups, and universities. She spoke in support of extending the Council. Representative Therriault clarified that the Council was budgeted at $100.0 thousand dollars in FY 95. The Council was funded at $420.0 thousand dollars in FY 93. Representative Brown questioned the position of the Department of Environmental Conservation. Representative Therriault noted that it was the intent of the House Finance Subcommittee on the Department of Environmental Conservation to allow the sunset to go ahead. A roll call vote was taken on the MOTION to adopt Amendment 1. IN FAVOR: Kelly, Kohring, Martin, Mulder, Therriault, Hanley OPPOSED: Brown, Grussendorf, Navarre Representatives Parnell and Foster were absent from the vote. The MOTION PASSED (6-3). 11 Representative Brown asked why the Board of Storage Tank Assistance was recommended for extension. ROD MOURANT, STAFF, REPRESENTATIVE KOTT noted that the legislation was based on recommendations by the Office of the Governor and the Division of Legislative Budget and Audit. He stated that some boards were added by the House Labor and Commerce Committee due to administrative oversight. Representative Brown asked the basis for distinction of sunset dates. Mr. Mourant could not answer. Representative Grussendorf noted that Mr. Mourant testified that the legislation was based on recommendations by the Division of Legislative Budget and Audit. However, those recommendations were only accepted for the Real Estate Board. Representative Martin noted that the Division of Legislative Budget and Audit tried to decrease the annual audit of boards and commissions by extending some organizations to five or ten years. Representative Brown noted that the Board of Storage Tank Assistance was not contained in the audit. HB 233 was HELD in Committee for further discussion. ADJOURNMENT The meeting adjourned at 3:50 p.m. 12