Legislature(2015 - 2016)CAPITOL 120
04/09/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB43 | |
| HB125 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 125 | TELECONFERENCED | |
| *+ | HJR 17 | TELECONFERENCED | |
| + | SB 43 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 30 | TELECONFERENCED | |
SB 43-IMMUNITY FOR FIRE DEPT. & MEMBERS
CHAIR LEDOUX announced that the first order of business would be
SENATE BILL NO. 43, "An Act relating to immunity for a fire
department and employees or members of a fire department."
1:08:39 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, said SB 43 relates to contract fire departments and
affects the fire departments of Fairbanks, Anchorage, Chugiak
and Girdwood. He offered that government creates immunities for
itself in different areas which is fairly common especially when
it comes to public safety and fire departments in particular.
He advised that most states have statutes that protects the fire
departments themselves and its employees. He referred to AS
09.65.070, and conveyed that it provides immunity except to
contract departments. He offered that he researched the
legislative history of AS 09.65.070, and noted it was
established in the mid-1970s, and is not clear whether contract
fire departments were in existence, and that the language was
crafted from a statute in Delaware.
1:10:21 PM
CHAIR LEDOUX asked whether contract fire departments are
considered volunteer fire departments.
MR. SHILLING answered that these are .501(C)(3), non-profits and
are mostly volunteer based although the chief will generally be
paid.
1:10:48 PM
MR. SHILLING continued his presentation and stated that because
the Municipality of Anchorage and the Fairbanks Northstar
Borough contract with these fire departments and utilize their
services even though the statute doesn't cover those fire
departments, fire fighters, and volunteers. In that regard,
they are exposed to extra liability that others are not and this
bill extends that immunity to those departments. He advised
that initially the bill was introduced with full immunity. He
further advised that concerns were expressed in creating a
blanket immunity so the fairly common carve out exception of
gross negligence and willful acts of misconduct was added. He
pointed out that the second change to the bill was as a result
of Representative Seaton's suggestion to ensure that this
immunity does not somehow apply to a contractor of a private
entity.
1:12:10 PM
CHAIR LEDOUX questioned "does not apply to ..."
1:12:12 PM
MR. SHILLING offered the example of a village having a
relationship with a contract department, and that department had
a subsequent contract with a private entity, the change was to
ensure that this bill did not somehow protect the private
entity.
1:12:37 PM
CHAIR LEDOUX asked whether this only covers contracts with
.501(C) organizations.
MR. SHILLING responded that Chair LeDoux was correct in that
these are mostly structured in that manner.
1:12:57 PM
REPRESENTATIVE GRUENBERG referred to a 3/16/15, letter from Fire
Chief John Fullenwider, Municipality of Anchorage, which read:
"These bill, if enacted, will protect residents by reducing the
risk of liability and frivolous tort claims against municipal
and non-profit fire agencies." He asked what the bill does to
change the liability of the municipality itself.
MR. SHILLING answered that municipally operated departments,
such as the Anchorage Fire Department already has protections in
statutes and this bill does not affect those and if anything
extends its protections, but certainly does not reduce it.
REPRESENTATIVE GRUENBERG said a bill is forthcoming related to
the issue of retroactivity. He surmised that this bill is not
retroactive and will only apply to claims arising on or after
the effective date of this Act.
MR. SHILLING replied "that is correct, there is not an
applicability section here so it would apply."
REPRESENTATIVE GRUENBERG highlighted that he is serving notice
he may offer an applicability section to state that this applies
to claims arising on or after the effective date of this Act.
Although, he realizes he may have violated the 24-hour rule, but
it is important to make it clear.
1:15:48 PM
MR. SHILLING opined that the drafter of the bill may be on the
line to determine whether this is a necessary change as it may
be that this inherently only applies to claims on or after.
REPRESENTATIVE GRUENBERG offered that routinely within criminal
law it includes the language, but this issue has not been before
the House Judiciary Standing Committee this year on the civil
side.
CHAIR LEDOUX opened public testimony.
1:17:34 PM
MITCH FLYNN, Fire Chief, Steese Volunteer Fire Department, said
the Steese Volunteer Fire Department, a non-profit organization
in Fairbanks, provides fire and EMS services through a contract
with the Fairbanks Northstar Borough. He noted that last year
the legal team at the Fairbanks Northstar Borough pointed out
his department's lack of immunity protection and vulnerability
to lawsuits. He requested a change in the Alaska Statutes that
provides the same immunity protections as offered to
municipalities. He explained there are approximately seven non-
profit fire departments statewide contracting with a municipal
government and providing the services of fire and EMS, and noted
that the population base is approximately 100,000 residents. He
highlighted his concern that the lack of immunity protection may
have a negative impact on recruitment and retention of
volunteers in the future. On a good note, he stated, by passing
this legislation it may help identify costs and annual premiums
for general liability insurance that is paid out. He described
the irony of the situation in that his department may respond to
a Fairbanks Northstar Borough call and yet incur a liability
claim of which affects the taxpayer. He remarked it is the
desire of his department to offer fire and EMS services safely
and to the best of its ability without the fear of lawsuits and
unwanted claims.
1:20:47 PM
DOUG SCHRAGE, Fire Chief, Fairbanks University of Alaska Fire
Department, Alaska Fire Chiefs Association, said that the Alaska
Fire Chief Association represents most of the fire and emergency
service leaders throughout the state. He said he joins with
Chief Flynn, local colleagues, and those of the Alaska Fire
Chiefs Association in support of SB 43. He explained that the
University Fire Department, the Steese Fire Department, and
several others are student based, non-profit fire departments
providing fire protection to the Fairbanks Northstar Borough on
a contractual basis. As such, he explained, it is not a
municipal fire department and would benefit from the immunity
this bill affords. He noted that of particular concern is that
it is a workforce development program responsible for providing
many of Alaska's municipal fire departments with experienced and
training fire fighters. He pointed out that in this current
fiscal environment, at the University, concern over the
liability this bill addresses could be a factor in the future of
its program. For those reasons, he stated, he joined his
colleagues in supporting SB 43.
1:22:52 PM
REPRESENTATIVE CLAMAN asked what it would look like for a non-
municipal fire department in terms of where there would and
would not be potential liability, should SB 43 pass.
CHIEF SCHRAGE responded that this bill extends to fire
departments such as his in extending immunity from liability
essentially under the Doctrine of Sovereign Immunity to non-
municipal fire departments. He described the department as
contractors and therefore independent of the municipal or
borough government those immunities do not extend to the
departments or employees. He described its exposure to general
liability as enormous in terms of nonfeasance or failure to
provide service all the way to injury to his employees, and
noted it may be a failure to protect the citizens that pay
taxes. He opined that this bill would specifically address
those sorts of immunities.
REPRESENTATIVE CLAMAN offered that currently municipalities have
greater protections as it has the protection of the sovereign.
Whereas, he continued, a volunteer fire department could be
exposed to negligence and liability for the work they are
performing rather than the gross negligence protection currently
afforded municipalities in the same setting.
CHIEF SCHRAGE offered "that is my understanding."
1:25:06 PM
CHIEF SCHRAGE responded to Representative Gruenberg that on an
elementary level he is familiar with the legalities of this
bill, but is not intimately familiar with the nuances and
effects of the various substitute versions and amendments.
1:28:03 PM
The committee took an at-ease from 1:28 to 1:30 p.m.
1:30:19 PM
REPRESENTATIVE GRUENBERG referred to current law and the House
Judiciary Standing Committee CS, and then referred to [Section
1], AS 09.65.070(c), [page 1, lines 5-8], which read:
(c) An action for tort or breach of a contractual
duty based on the act or omission of an employee or
member of a fire department in the execution of a
function for which the department is established may
not be maintained against an employee or member of a
fire department ...
REPRESENTATIVE GRUENBERG highlighted that the first sentence is
essentially the same as current law except more elegantly
drafted.
1:31:11 PM
JILL DOLAN, Assistant Borough Attorney, Fairbanks Northstar
Borough, agreed with Representative Gruenberg and noted that the
substantial change is the definition of fire department that
begins on page 1, lines 13-24 ...
REPRESENTATIVE GRUENBERG interjected that before anticipating
his questions, to refer to the second sentence, [page 1, lines
8-23], which read:
An action for tort or breach of a contractual duty
based on the act or omission of an employee or member
of a fire department in the execution of a function
for which the department is established may not be
maintained against a fire department unless the action
alleges intentional misconduct or gross negligence or
is based on the act or omission of an employee or
member of a fire department in the execution of a duty
under contract with a private entity.
REPRESENTATIVE GRUENBERG described the sentence as re-
establishing the liability of ... the first sentence deals with
an action, on line 6, "or omission of an employee ..." He
offered that in other words, if a person sues a fireman because
he dropped a person and said "burn, burn," that's what it
applies. In the event a person sues the fire department, which
is where the second sentence comes in, on lines 10-11, "may not
be maintained against a fire department." He opined that is the
essential difference between the first sentence and the second
sentence. Whereas, he pointed out, the first sentence is an
action against an employee, and the second sentence is an action
against a fire department.
1:32:47 PM
MS. DOLAN answered that Representative Gruenberg was correct
with the additional qualification that if the action is against
a fire department, a person can still have an action if it
alleges intentional misconduct or gross negligence.
REPRESENTATIVE GRUENBERG offered that Ms. Dolan was one step
ahead of him as under current law a person can sue a fire
department for negligence. He said that "this" immunizes the
fire department itself, whether or not it is volunteer. A
person can no longer sue it unless the action alleges
intentional misconduct or gross negligence, he reiterated.
MS. DOLAN responded that currently in AS 09.65.070(d) there is,
for municipal fire departments, discretionary function immunity
for damages. Therefore, she explained, currently a person
cannot maintain an action for damages against a municipal fire
department if it is based on a discretionary function. She
further explained that the same immunity does not apply to the
contracted fire department, such as what Chief Flynn and Chief
Schrage were discussing, as they are contracted fire
departments. She related that the intent was to incorporate a
similar immunity and to Subsection (c) for those fire
departments.
1:34:18 PM
CHAIR LEDOUX remarked that discretionary immunity means that a
fire department can't be sued because it decided not to exercise
a function. For example, the Department of Transportation
(DOT), if a division does not put up a guard rail, the state
cannot be sued. In the event DOT puts up a guard rail and does
not maintain the guard rail, the state can be sued. She noted
that the first example is discretionary and a government cannot
be sued for not doing something which is discretionary. The
government can be sued for negligence in something the
government decides to undertake.
MS. DOLAN stated that Chair LeDoux "is absolutely correct," as
discretionary functions are generally aspects involving
allocation of financial resources. She agrees that once a duty
is undertaken it generally cannot be taken in a non-negligent
manner, but there are certain on-the-scene decisions in
firefighting that could be discretionary because it entails
resource allocation and those decisions are vested in the fire
chief in charge. She offered that the courts have extended some
discretionary function immunity in the context of fire that
would include on-the-scene decisions.
1:35:54 PM
REPRESENTATIVE GRUENBERG surmised that discretionary actions are
immunized and the issue here is regarding non-discretionary. He
read that under current law, if a person sues a fire department
itself rather than the individual, for non-discretionary the
standard is negligence. He referred to line 11, " ...
intentional or gross negligence ..." He stated that is now the
standard and opined it was added and was not in the original
bill. He described it as significantly raising the standard for
suing a fire department involved in a non-discretionary
function.
1:37:00 PM
MS. DOLAN replied that it changes the standard for the non-
discretionary function. The intent, she explained, was that
because contracted fire departments cannot enjoy discretionary
function immunity to leave subsection (d) intact and allow
municipalities to continue to enjoy the immunity. Instead, in
the context of looking at fire departments in general, extend an
immunity that is not a full and complete immunity and limit it,
she highlighted. She further highlighted that the intentional
misconduct or gross negligence language is intended to limit how
far that immunity could extend, and while listening to the
hearing with the committee substitute noted it is not intended
to expand the immunity.
REPRESENTATIVE GRUENBERG opined that he intends to look at the
bill because it appears to go as far as it can go.
CHAIR LEDOUX announced she would hold the bill as it appears
this bill may go farther than the original intent of the
sponsor.
1:38:20 PM
MR. SHILLING advised that upon introduction of the bill, the
non-discretionary immunity was to non-discretionary activities
for fire departments. He stated the only action the Senate
Community and Regional Affairs Standing Committee performed was
the carve out for intentional misconduct or gross negligence.
He noted the intention all along was to expand that immunity.
REPRESENTATIVE GRUENBERG opined that the committee should look
at the bill and ascertain that it does what was intended.
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify, and announced SB 43 is held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB0125A.PDF |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Fiscal Note - LAW.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Letter of Support CHPA.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Sponsor Statement.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Support Document Age 18 DXM Restriction States.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| HB125 Support Document Know Your Medicine Cabinet.pdf |
HJUD 4/9/2015 1:00:00 PM |
HB 125 |
| SB43 Sponsor Statement.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - AFD.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Fiscal Note 1.PDF |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Fiscal Note 2.PDF |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - City of Fairbanks.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - Fire Chiefs Assoc..pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - FNSB.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Letter of Support - Interior Fire Chiefs.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 Summary of Changes.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |
| SB43 ver P.pdf |
HJUD 4/9/2015 1:00:00 PM |
SB 43 |