Legislature(2017 - 2018)GRUENBERG 120
03/09/2018 01:00 PM House JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| HJR29 | |
| HB219 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HJR 29 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 219 | TELECONFERENCED | |
HB 219-CRIM HIST CHECK: ST EMPLOYEES/CONTRACTORS
1:22:02 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 219, "An Act relating to background investigation
requirements for state employees whose job duties require access
to certain federal tax information; relating to persons under
contract with the state with access to certain federal tax
information; establishing state personnel procedures required
for employee access to certain federal tax information; and
providing for an effective date."
1:23:02 PM
CHAIR CLAMAN moved to adopt Amendment 1, labeled 30-GH1938\A.2,
Martin, 3/7/18, which read as follows:
Page 4, line 24:
Delete "2017"
Insert "2018"
REPRESENTATIVE STUTES objected for discussion.
1:23:09 PM
CHAIR CLAMAN explained that Amendment 1 changes the effective
date from 2017 to 2018.
REPRESENTATIVE STUTES withdrew her objection. There being no
objection, Amendment 1 was adopted.
1:23:40 PM
CHAIR CLAMAN noted that Representative Eastman was no longer
present and therefore he would not be offering an amendment.
REPRESENTATIVE EASTMAN related that he was now speaking via
teleconference.
CHAIR CLAMAN informed Representative Eastman that he was not
excused from the Call of the House of Representatives today, and
he was present in the room at the start of this committee
meeting, and he did not have an excused absence; therefore,
Representative Eastman would not be allowed to offer an
amendment.
1:25:00 PM
REPRESENTATIVE REINBOLD moved to adopt Amendment 2, labeled 30-
GH1938\A.7, Martin, 3/8/18, which read as follows:
Page 1, line 2, following "information;":
Insert "relating to polygraph examinations of
persons with access to certain federal tax
information;"
Page 2, following line 8:
Insert a new bill section to read:
"* Sec. 2. AS 23.10.037(b) is amended to read:
(b) The provisions of (a) of this section do not
apply to the state or a political subdivision of the
state when dealing with police officers in its employ
or with persons applying to be employed as police
officers or with contractors or employees who require
access to federal tax information under AS 36.30.960
or AS 39.55.015. In this subsection,
(1) "contractor" has the meaning given in
AS 36.30.960;
(2) "employee" has the meaning given in
AS 39.55.015;
(3) "police officers" includes officers and
employees of the Department of Transportation and
Public Facilities who are stationed at an
international airport and have been designated to have
the general police powers authorized under
AS 02.15.230(a)."
Renumber the following bill sections accordingly.
Page 2, following line 27:
Insert a new subsection to read:
"(d) A current or prospective contractor whose
contract with the state requires access to federal tax
information for purposes of the contract shall submit
to and pass a polygraph examination before accessing
any federal tax information."
Reletter the following subsection accordingly.
Page 4, following line 7:
Insert a new subsection to read:
"(e) A current or prospective employee whose job
duties require access to federal tax information shall
submit to and pass a polygraph examination before
accessing any federal tax information."
Reletter the following subsection accordingly.
REPRESENTATIVE STUTES objected.
1:25:20 PM
REPRESENTATIVE REINBOLD explained that Amendment 2 requires a
person to pass a polygraph test before the [subject] employees
are allowed to access confidential data.
CHAIR CLAMAN noted that his office had made an inquiry to
Legislative Legal and Research Services, and it appears
Amendment 2 would run in conflict to AS 23.10.037, which
prohibits requiring lie detector tests as a condition of
employment, with the only exception being for police officers.
He asked how she makes Amendment 2 square up with AS 23.10.037.
REPRESENTATIVE REINBOLD responded that Alaska wants the people
with access to this data to be honest, and it should be a
minimum requirement if they are accessing personal highly
confidential information. In this instance, those people should
be required to take a lie detector test.
1:27:51 PM
REPRESENTATIVE LEDOUX commented that people, in this instance,
should be held to high standards. Except, she pointed out,
there is no consensus that polygraph evidence is good evidence,
which is the reason polygraph tests are not allowed as
conditions of employment. She further commented that people who
are psychopaths can easily pass polygraph tests.
REPRESENTATIVE REINBOLD responded that these people are just
passing a test to have access to this confidential data, the
polygraph tests are a measure of honesty, and hopefully, the
state will not hire psychopaths to get into this data. She
noted that 300 state employees have access to this information
and it is her belief the state needs to ensure a high standard
to reduce the risk and liability to the state.
1:29:18 PM
A roll call vote was taken. Representative Reinbold voted in
favor of the adoption of Amendment 2. Representatives Kreiss-
Tomkins, Kopp, Stutes, LeDoux, and Claman voted against it.
Therefore, Amendment 2 failed by a vote of 1-5.
1:29:51 PM
[CHAIR CLAMAN and Representative Reinbold discussed the
amendment process.]
1:31:33 PM
REPRESENTATIVE LEDOUX referred to the 3/8/18 letter from Don
Habeger, Juneau Reentry Coalition, directed to the Alaska House
Judiciary Committee, and related that she would like the
opportunity to hear from Mr. Habeger.
1:32:39 PM
DON HABEGER, Community Coordinator, Juneau Reentry Coalition,
offered that finding reasonable ways to improve (audio
difficulties) that are successfully reentering their community
and putting a history of criminality behind them is something
the Juneau Reentry Coalition is interested in as it looks to
overcome their barriers. He said the title of HB 219 caught his
attention and as he read the legislation and read the Department
of Revenue's (DOR) protocols for the hiring process, there
appears to be a possible way for someone who is overcoming a
history of crime to enter into the field. However, he noted,
when he read the background investigation for contractors, there
is a clear door that a person must "submit and pass" a
background check. Except, he pointed out, there is no
definition as to what "pass a background check" means, as he
could not find it in AS 12.62, or the public accountancy
statutes. He said that it raised enough of a flag that he
thought he would bring the issue before this committee to see
whether the members agree, and if there is a solid door that
someone who is successful cannot get past. He asked the
committee to at least consider that and somehow open the door.
1:34:59 PM
REPRESENTATIVE LEDOUX surmised that when working for the state,
there are specific criteria for a person to fail this test, but
if they are working as a contractor it is just pass or fail, and
no one has defined "pass."
MR. HABEGER answered that that is the way he reads it. He
reiterated that "you posted on the website their policy" which
stated that if there are recent crimes at various levels, for
instance, "one-to-five years you have a misdemeanor, then you
are not eligible to have employment in these particular fields."
In the event it is a felony, it might have been 10-15 years
"whatever that was." At least there is a pathway, there is also
an element of protection due to the sensitivity of the job
class. However, he said, the way he reads this, "it's submit
and pass." For example, if he received a significant contract
with DOR or Department of Labor & Workforce Development (DLWD)
and he had an employee who had worked for him four years but did
not pass, he would have to let the employee go because he did
not have any other work for his employee. That is his concern,
he related.
1:37:10 PM
CHAIR CLAMAN queried David Spanos, DOR, in addressing this issue
about the language "submit to and pass," there was a previous
discussion regarding a conviction of dishonesty, and this is
specifically the people who would have access to federal tax
information. He said that he understood "submit to and pass" to
mean the person did not have the types of convictions involving
dishonesty which would be a reason they could not have access to
the information. The word "pass," although it is not defined,
in its practical application "is in that way." He asked Mr.
Spanos to describe what it means to pass a background
investigation.
1:37:59 PM
DAVID SPANOS, Deputy Director, Tax Division, Department of
Revenue, said he agreed that (audio difficulties) interpretation
that "pass "our criminal background investigation." The Tax
Division currently has contractors who submit the same forms the
division's employees submit to the Criminal Investigation Unit.
That unit runs the background check and "we are the ones" that
determine whether the person passed. He noted, "We don't have
the employer" run a background check or pay someone else to run
the background check, "we run it ourselves and we follow the
same policy."
1:38:46 PM
REPRESENTATIVE LEDOUX surmised that the process makes a certain
degree of sense. Although, she noted, she was unsure there was
anything in the statutes that mandates it be performed in that
manner. She asked whether the process and the definition of
"pass" should be specified in a bit more detail.
MR. SPANOS replied (audio difficulty) how the division handles
the background checks could be changed. He stressed that HB 219
is asking for fingerprinting authority to run a national
background check. The division follows its current policy to
run local background checks, which includes local background
checks for any state employees (audio difficulties) within the
past ten years, and that could be changed. He said that he
would not be opposed to (audio difficulties) but he can't say
why (audio difficulties).
1:40:43 PM
CHAIR CLAMAN commented that in the event the statute read,
"shall submit to a background investigation," simply submitting
to the background investigation does not convey the notion that
certain individuals, based on their history, that should not be
given access to the information. With regard to convictions
involving dishonesty, there may be a period wherein people are
willing to say that enough time had passed and the person should
be cleared. The concept of "passing" is pretty well understood
to mean "not only do you submit to it, but you look to see if
that criminal history is important for purposes of what you are
gaining access to. And, that is what is being done in
regulations." Which, he commented, appears to be a pretty
sensible way to approach the issue. He noted that people talk
about passing background investigations all of the time and what
they are looking for, depending on the circumstances, is what
are the background investigations that would preclude a person
from employment. In the same sense, background investigations
are performed on people working with students in the schools
because the state does not want people with a history of child
molestation to have access to students, he said. Except, in the
statute there is not a long list of every single conviction the
person has to clear to be able to go back and teach school. The
state basically wants the background investigation in order to
be confident the person actually passed, whatever that may mean.
He said that he tends to believe that if this were challenged, a
court would not have a lot of confusion about what it means to
pass a background investigation. Police officers are required
to undergo background investigations before being hired, but
there is not a long list of which crimes are the basis for not
hiring. He described the question raised as a good question,
and noted that the contractors, who are not state employees, are
treated in the same manner as the state treats state employees
in terms of who gains access to the confidential information.
CHAIR CLAMAN asked Representative LeDoux if that answer was
satisfactory.
REPRESENTATIVE LEDOUX said "I think so."
1:43:44 PM
REPRESENTATIVE REINBOLD offered concern about this bill's
process, Legislative Legal and Research Services, and her
amendments. She related that her four amendments were deemed
late and not allowed, which were as follows: the person or
corporation suffering any serious violation or breach of
authorized access data to be notified within 72-hours; that this
legislation could not be a pathway, in any manner, to help
establish (audio difficulties) with an income tax; people "who
are over" the authorization of data had to have careful measures
and good monitoring logs with swift discipline for any breach of
authorized data; and in the event of a gross violation of
unauthorized data that the violation be forwarded to law
enforcement. She opined that this is incredibly sensitive data
subject to abuse and the state wants the highest quality of
honest people with a rigid monitoring system. She said that she
will be "an absolute no on this" due to her belief she had been
obstructed in her ability to amend this legislation. In the
event HB 219 does not pass, "then all is we are not federally
compliant," and it appears that "a lot of you guys" want to be
federally compliant in every area except marijuana and she feels
like it is hypocrisy.
1:46:42 PM
REPRESENTATIVE KOPP offered that he supports the bill, and that
Mr. Habeger brought up some good comments and thoughts. For
example, he related, possibly a college student had moved his
professor's car as a prank and gets tagged with some offense,
then 15-years down the road the offense still shows up as a
disqualifier. He opined that that is a situation to which Mr.
Habeger was referring, but he was unsure whether this was the
right time to address the issue, but the principle of background
checks is excellent. Mr. Spanos testified that a log is kept as
to each time federal tax information is accessed, and that
violations of the protocol were misdemeanors subject to a
criminal charge and termination of employment. He noted that
the committee had previously discussed the issue of requiring
any employee to submit to a polygraph test was against the law,
with the exception of police officers. He offered surprise that
an amendment was introduced requiring that a polygraph test be
administered for purposes of employment and remarked that there
would be quite a debate just in updating that law all by itself.
Anyone accessing federal tax information should have a
background check and he opined that every committee member
agrees, and he fully supports HB 219.
1:48:17 PM
REPRESENTATIVE KREISS-TOMKINS moved to report HB 219, Version
30-GH1938\A, as amended, out of committee with individual
recommendations and the accompanying fiscal notes.
1:48:39 PM
REPRESENTATIVE REINBOLD, via teleconference, objected.
1:48:40 PM
CHAIR CLAMAN explained that according to the rules, an objection
stated by Representative Reinbold via teleconference could not
be considered on a motion to move a bill out of committee.
1:48:57 PM
CHAIR CLAMAN announced that there being no objection, CSHB
219(JUD) was reported from the House Judiciary Standing
Committee.