03/30/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB138 | |
| HB56 | |
| SB224 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 224 | TELECONFERENCED | |
| + | HB 56 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 6 | TELECONFERENCED | |
| += | SB 198 | TELECONFERENCED | |
| += | SB 138 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 30, 2012
1:35 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator John Coghill
MEMBERS ABSENT
Senator Lesil McGuire
Senator Joe Paskvan
COMMITTEE CALENDAR
SENATE BILL NO. 138
"An Act relating to the inclusion of the charges of a vendor of
goods or services on the bills of certain telecommunications
carriers; and adding an unlawful act to the Alaska Unfair Trade
Practices and Consumer Protection Act."
- MOVED CSSB 138(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 56
"An Act making arson in the first degree and arson in the second
degree serious felonies for purposes of application of the crime
of conspiracy."
- HEARD & HELD
SENATE BILL NO. 224
"An Act making privileged certain communications between
employees and employee union representatives; and amending Rule
402 and Rule 501, Alaska Rules of Evidence."
- HEARD & HELD
CS FOR HOUSE BILL NO. 6(JUD) am
"An Act authorizing the governor to remove or suspend a member
of the Board of Regents of the University of Alaska for good
cause; and establishing a procedure for the removal or
suspension of a regent."
- SCHEDULED BUT NOT HEARD
SENATE BILL NO. 198
"An Act establishing procedures relating to issuance,
suspension, or revocation of certification of police officers by
the police standards council; making certain court service
officers subject to certification by the police standards
council; making confidential certain information that personally
identifies a police officer; relating to requesting or requiring
police officers to submit to lie detector tests; repealing a
provision exempting certain police officers from a prohibition
against requiring certain employees to submit to lie detector
tests; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 138
SHORT TITLE: THIRD-PARTY CHARGES ON TELEPHONE BILLS
SPONSOR(s): WIELECHOWSKI, DAVIS, EGAN
01/17/12 (S) PREFILE RELEASED 1/6/12
01/17/12 (S) READ THE FIRST TIME - REFERRALS
01/17/12 (S) L&C, JUD
02/02/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/02/12 (S) Heard & Held
02/02/12 (S) MINUTE(L&C)
02/23/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/23/12 (S) <Bill Hearing Postponed>
02/28/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/28/12 (S) Moved CSSB 138(L&C) Out of Committee
02/28/12 (S) MINUTE(L&C)
02/29/12 (S) L&C RPT CS 3DP 2NR SAME TITLE
02/29/12 (S) DP: EGAN, DAVIS, PASKVAN
02/29/12 (S) NR: GIESSEL, MENARD
03/23/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/23/12 (S) Heard & Held
03/23/12 (S) MINUTE(JUD)
03/26/12 (S) JUD AT 2:00 PM BELTZ 105 (TSBldg)
03/26/12 (S) Heard & Held
03/26/12 (S) MINUTE(JUD)
03/30/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 224
SHORT TITLE: EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE
SPONSOR(s): LABOR & COMMERCE
03/05/12 (S) READ THE FIRST TIME - REFERRALS
03/05/12 (S) L&C, JUD
03/20/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/20/12 (S) Heard & Held
03/20/12 (S) MINUTE(L&C)
03/22/12 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
03/22/12 (S) Moved SB 224 Out of Committee
03/22/12 (S) MINUTE(L&C)
03/23/12 (S) L&C RPT 4DP
03/23/12 (S) DP: EGAN, DAVIS, MENARD, PASKVAN
03/30/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 56
SHORT TITLE: INCLUDE ARSON IN CRIMES OF CONSPIRACY
SPONSOR(s): GATTO, GRUENBERG, LYNN
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) JUD, FIN
02/18/11 (H) JUD AT 1:00 PM CAPITOL 120
02/18/11 (H) -- MEETING CANCELED --
02/21/11 (H) JUD AT 1:00 PM CAPITOL 120
02/21/11 (H) Moved Out of Committee
02/21/11 (H) MINUTE(JUD)
02/23/11 (H) JUD RPT 3DP 2NR
02/23/11 (H) DP: LYNN, GRUENBERG, GATTO
02/23/11 (H) NR: KELLER, PRUITT
02/22/12 (H) FIN AT 1:30 PM HOUSE FINANCE 519
02/22/12 (H) Moved Out of Committee
02/22/12 (H) MINUTE(FIN)
02/24/12 (H) FIN RPT 1DP 8NR
02/24/12 (H) DP: GARA
02/24/12 (H) NR: T.WILSON, NEUMAN, FAIRCLOUGH,
COSTELLO, EDGMON, DOOGAN, STOLTZE,
THOMAS
03/06/12 (H) TRANSMITTED TO (S)
03/06/12 (H) VERSION: HB 56
03/12/12 (S) READ THE FIRST TIME - REFERRALS
03/12/12 (S) JUD, FIN
03/30/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
THOMAS PRESLEY, Intern
Senator Bill Wielechowski
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Explained the proposed changes to SB 138.
BOB LOHR, Executive Director
Alaska Center for Public Policy
Anchorage, AK
POSITION STATEMENT: Testified in support of SB 138.
REPRESENTATIVE MAX GRUENBERG
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Prime sponsor of HB 56.
MILES BROOKES, Staff
Representative Max Gruenberg
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Introduced HB 56 on behalf of the sponsor.
ANNE CARPENETI, Assistant District Attorney
Criminal Division
Legal Services Section
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Provided information and answered questions
related to HB 56.
DAN JAGER, Fire Marshall
Capital City Fire/Rescue
Juneau, AK
POSITION STATEMENT: Testified in support of HB 56.
DANA OWEN, Staff
Senate Labor and Commerce Committee
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Introduced SB 224.
JOHN PTACIN, Assistant Attorney General
Civil Division
Labor and State Affairs Section
Department of Law (DOL)
POSITION STATEMENT: Testified in opposition to SB 224.
DOUGLAS MERTZ, Attorney
Juneau, AK
POSITION STATEMENT: Testified in support of SB 224.
KATE SHEEHAN, Deputy Director
Personnel and Labor Relations
Department of Administration
Juneau, AK
POSITION STATEMENT: Testified on SB 224, focusing on Section 2.
STEVEN SORENSON, Attorney
Juneau, AK
POSITION STATEMENT: Testified in support of SB 224.
ACTION NARRATIVE
1:35:21 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:35 p.m. Present at the call to
order were Senators Coghill, Wielechowski, and Chair French.
SB 138-THIRD-PARTY CHARGES ON TELEPHONE BILLS
1:36:38 PM
CHAIR FRENCH announced the consideration of SB 138 and asked for
a motion to adopt the proposed committee substitute (CS),
version U.
1:36:47 PM
SENATOR WIELECHOWSKI moved to adopt the committee substitute for
SB 138, labeled 27-LS1002\U, as the working document.
CHAIR FRENCH announced that without objection, version U was
before the committee.
SENATOR WIELECHOWSKI, speaking as the sponsor of SB 138, said
Mr. Presley would present the CS.
1:37:40 PM
THOMAS PRESLEY, Intern to Senator Bill Wielechowski, sponsor of
SB 138, said version U incorporates the three amendments that
the Alaska Communication Service (ACS) offered during the last
hearing.
Subsection (c) on page 2, lines 11-15, contains new language
that says that a customer who contests a charge on their bill
must inform the telecommunications carrier, either orally or
electronically, of the reason for nonpayment.
New subsection (d) on page 2, lines 17-19, allows a
telecommunications carrier to recover from third-party vendors,
reasonable costs incurred in implementing billing changes or
otherwise complying with Sec. 42.05.715.
New subsection (d) on page [3], lines 28-30, absolves
telecommunications carriers of the duty to verify independently
the accuracy of information received from a person or billing
under this section.
MR. PRESLEY said he forwarded a copy of the new CS to Alaska
Communication Services (ACS) and he anticipated their approval.
He informed the committee that both Verizon and AT&T voluntarily
pledged to discontinue, by August, billing for all third-party
enhanced services that are not telephone related.
1:40:17 PM
BOB LOHR, Executive Director, Alaska Center for Public Policy,
stated support for SB 138 and relayed that he was speaking as a
former executive director of the Public Utilities Commission and
a former chief insurance regulator for the State of Alaska. He
described the legislation as timely and important consumer
protection. He disputed the notion that third-party billing was
important to consumers to reduce costs and expand competitive
choice because this was not an effectively competitive market.
Two assumptions that economists make about competitive markets
are that there is perfect information available and there is
zero transaction cost. Both are demonstrably untrue in the case
of third-party non-telephone charges on telecommunication
billings.
MR. LOHR said SB 138 was good legislation, but he was concerned
with the latest amendments because they added an element of
"blame the victim." If a customer has a bill of $50 for local
exchange service and $25 for charges that he or she doesn't
recognize, the intent is quite clear if the customer pays $50
even if there isn't a written instruction on the bill as to how
to allocate the charge.
MR. LOHR said he was heartened to hear that both Verizon and
AT&T recognize that this was a genuine issue. He reiterated that
the legislation was still vitally necessary.
SENATOR WIELECHOWSKI said his office worked hard to satisfy
everyone concerned and a better bill resulted.
SENATOR WIELECHOWSKI moved to report CS for SB 138, version U,
from committee with individual recommendations and attached
fiscal note(s).
CHAIR FRENCH announced that without objection CSSB 138(JUD)
moved from the Senate Judiciary Standing Committee.
At ease from 1:47 p.m. to 1:48 p.m.
HB 56-INCLUDE ARSON IN CRIMES OF CONSPIRACY
1:48:14 PM
CHAIR FRENCH announced the consideration of HB 56.
REPRESENTATIVE MAX GRUENBERG, prime sponsor of HB 56, said his
staff member would present the bill, which adds arson in the
first degree and arson in the second degree to the conspiracy
statute.
1:48:49 PM
MILES BROOKES, staff to Representative Max Gruenberg, introduced
HB 56 by speaking to the following sponsor statement:
House Bill 56 adds first and second degree arson to
Alaska's conspiracy statute, which will provide strong
deterrents to committing arson and close a loophole in
current law. HB 56 was drafted after it became
apparent during a committee hearing last session that
arson is not currently included in Alaska's conspiracy
statute. Because of this, arsonists may only be
charged with a crime if the arson is attempted or
completed, and they cannot be charged with the
separate crime of conspiracy if two or more people are
involved in the arson. This bill only adds first and
second degree arson [to the list of serious felony
offenses for which a person could be charged with the
crime of conspiracy.]
¾Conspiracy: an agreement by two or more people to
commit a crime with at least one overt act
committed towards the completion of the crime.
¾Arson in the first degree: damaging property by
fire or explosion and recklessly placing another
person (including emergency personnel) in danger
or serious physical injury. (Class A Felony)
¾Arson in the second degree: knowingly damages a
building by fire or explosion. (Class B Felony)
¾Conspiracy to commit a Class A Felony (Arson One)
is a Class B Felony.
¾Conspiracy to commit a Class B Felony (Arson Two)
is a Class C Felony.
HB 56 will fix those problems. Including arson in the
conspiracy statute will provide stronger punishments,
whether or not conspirators actually complete the
arson. Under HB 56, if arson is committed, the
conspiring arsonists can [be] charged with both arson
and conspiracy, rather than just arson under the
current law. If the arson is not completed, however,
this bill will allow conspirators to be prosecuted
for conspiracy to commit arson, which is not
punishable under current law.
REPRESENTATIVE GRUENBERG added that a charge of conspiracy
requires a criminal agreement and one act towards that
agreement. He highlighted that much less of an actus reus is
required than for an attempt, which requires a substantial step
towards the final crime.
CHAIR FRENCH asked Ms. Carpeneti to remind the committee of the
difference between attempt and conspiracy.
1:51:40 PM
ANNE CARPENETI, Assistant District Attorney, Criminal Division,
Legal Services Section, Department of Law (DOL), explained that
the elements of conspiracy are an agreement between at least two
people with the specific intent to commit a crime, and one act
in furtherance of that agreement.
CHAIR FRENCH recalled that there could not be attempted
conspiracy.
MS. CARPENETI agreed.
CHAIR FRENCH asked why Alaska law had a specific list of crimes
that can be subject to a conspiracy charge.
MS. CARPENETI explained that when the Legislature revised the
criminal code in 1978 it decided not to have a conspiracy
provision in the substantive criminal law. In the early 1980s,
the Legislature changed its collective mind and passed a
conspiracy provision that was limited to certain very serious
crimes, each of which would more likely happen by agreement
among people.
CHAIR FRENCH commented that there can't be conspiracy to commit
theft, for example.
MS. CARPENETI agreed, and added that the least serious offense
on the list of crimes that can be subject to a conspiracy charge
is a class B felony. HB 56 would add a class A felony crime,
[arson in the first degree] and a class B felony crime, [arson
in the second degree].
1:53:47 PM
SENATOR COGHILL asked about the difference between proving
attempted arson versus conspiracy to commit arson.
MS. CARPENETI explained that to prove conspiracy to commit arson
the evidence would have to show, for example, that two or more
people conspired and agreed to burn a building to make a claim
for insurance. The evidence would also have to show that in
furtherance of that agreement, one or more of the people went
out and purchased incendiary materials. The two acts together -
the agreement to burn the building and the purchase of fuel -
prove conspiracy.
An example of attempted arson would be a person who decides to
burn his or her house for insurance. The person purchased the
fuel, spread it around the house, and lit a match, but for some
reason the fire did not catch and the house was not destroyed.
To prove attempted arson, proof of specific intent is required.
SENATOR COGHILL asked if a charge of conspiracy would be in
addition to other charges.
MS. CARPENETI replied it depends, but it is unique to the
conspiracy law that a person can be convicted of both conspiracy
and the completed crime. The probable rationale is that once
people agree to commit a crime, it's more likely to happen than
if just one person thinks about it.
SENATOR COGHILL commented that if somebody was suspected of
arson, an investigation would likely ensue to look for some
conspiratorial action.
MS. CARPENETI said yes and reiterated that these crimes are
difficult to prove and the prosecutions are rare.
1:57:19 PM
DAN JAGER, Fire Marshall, Capital City Fire/Rescue, Juneau, AK,
testified in support of HB 56. He informed the committee that he
was a member of the Alaska Association of Fire and Arson
Investigators and had actively investigated fires across the
state for 10 years. He said the crime of arson is difficult to
investigate and catching the person responsible is even harder.
The 2011 statistics for Juneau show more than 30 fires
classified as arson or suspicious in nature, and suspects have
been identified in just three cases.
MR. JAGER said it was his experience that arson usually involves
planning and execution by more than one person. Under current
law, arsonists can only be charged with a crime if arson is
completed or attempted, and attempted arson requires proof that
a substantial step towards arson occurred. Without HB 56, two or
more people who conspire and act to commit arson can't be
charged with conspiracy. Passing the bill will provide stronger
punishment whether or not the conspirators complete the arson.
2:00:00 PM
REPRESENTATIVE GRUENBERG supplemented Ms. Carpeneti's history of
the conspiracy statute and said he didn't know why arson wasn't
included when the statute passed initially.
CHAIR FRENCH closed public testimony and announced he would hold
HB 56 in committee.
SB 224-EVIDENCE RULES: UNION/EMPLOYEE PRIVILEGE
2:02:09 PM
CHAIR FRENCH announced the consideration of SB 224.
2:02:18 PM
DANA OWEN, staff to the Senate Labor and Commerce Committee,
sponsor of SB 224, introduced the bill by speaking to the
following sponsor statement:
Senate Bill 224 seeks to protect confidential
information acquired by an agent of an employee's
union in the course of providing that employee
advocacy services relating to anticipated or ongoing
disciplinary proceedings. Without the expectation of
confidentiality, union members are hesitant to be
fully forthcoming to their representative, severely
hampering the union agent's ability to advise and
represent the member and denying the employee the full
and effective advocacy to which she or he is entitled.
The bill provides exceptions to this privilege,
including being ordered by the court to disclose
information concerning the commission of a crime, or
if the employee consents to the disclosure. The bill
also provides that where federal or state law preempts
or conflicts with this act, the federal or state law
prevails to the extent of the preemption or conflict.
MR. OWEN highlighted that communications between an agent of the
union and a union member are privileged if the agent is an
attorney. SB 224 seeks to grant the same protection to
communications when the union representative is not an attorney.
SENATOR WIELECHOWSKI asked if this would apply to all public
employee union members in the state.
MR. OWEN said the sponsor was thinking of union representatives
of people who work for the state.
SENATOR WIELECHOWSKI stated for the record that he was an
attorney who worked for a labor union in the state.
CHAIR FRENCH noted the people available to answer questions and
testify.
2:05:24 PM
JOHN PTACIN, Assistant Attorney General, Civil Division, Labor
and State Affairs Section, Department of Law (DOL), testified in
opposition to SB 224. He said his testimony would be three
pronged. First, he would describe how these lawsuits initiate
and why the state sees the need to obtain certain communications
between a union and its members. Second, he would put to rest
some of the misconceptions about the administration's conduct in
these cases. Third, he would note that the privileges, as
drafted, appear rather complicated.
MR PTACIN explained that state workers are primarily unionized
and, by law, the employer and union have to enter into a
grievance process when the employer makes a decision to
terminate an employee. During the grievance procedure, the union
represents the member and meets with the employer two or three
times to try to explain why the state should reconsider its
decision. At this same time, the union is representing the
collective bargaining unit as a whole.
CHAIR FRENCH asked if something less than a termination can
begin a grievance process and lead to a request for discovery.
MR. PTACIN clarified that for minor grievances such as
suspensions, there is no need to ask for information.
CHAIR FRENCH asked if cases other than terminations go to court.
2:09:38 PM
MR. PTACIN responded that DOL primarily handles termination
decisions. Responding to a comment, he clarified that these are
not appeals of a termination decision per se. Most decisions of
an employer to terminate a worker are never submitted to
superior court because the grievance process includes binding
arbitration against the state if the union decides the state
didn't concede enough.
SENATOR COGHILL asked if the grievance process was a contractual
agreement.
MR. PTACIN answered yes; it was part of the collective
bargaining agreement under the Public Employment Relations Act
(PERA). Whenever a state employee bargaining union is formed,
the state has to allow for binding arbitration at the end of any
grievance process. The Department of Law doesn't get involved
until the state is sued, which is after the grievance process
and binding arbitration.
SENATOR COGHILL asked what employment levels are involved in the
grievance process.
MR. PTACIN replied it depends on the step of the grievance, but
the lower steps would involve someone who correlates to a
business agent at the union. Higher and higher levels of
management are involved as the steps progress. Importantly, at
this stage it is conciliatory, non-legal conduct between the
employer and employee. If there is no agreement during the
grievance process, the union has to decide whether to take the
case to binding arbitration.
SENATOR COGHILL asked how binding arbitration fit into the realm
of adjudication.
MR. PTACIN explained that the union and employer agree on and
present evidence to an arbitrator who makes a final decision
that is binding on both parties. He said that was different from
what was before the committee because the Alaska Labor Relations
Board referees both the grievance process and arbitration and it
is conduct under the Public Employee Rights Act.
2:13:49 PM
SENATOR WIELECHOWSKI asked if the bill would apply to all unions
in the state.
MR. PTACIN answered yes.
SENATOR WIELECHOWSKI asked if it would apply to all unions that
are either state employee unions or unions under the National
Labor Relations Act.
MR. PTACIN replied, "It seems to."
MR. PTACIN said he wanted to clarify that the Alaska Labor
Relations Agency acts as a referee throughout the grievance and
adjudication processes, and the ground rules under PERA and fair
labor practices are that the state cannot obtain documents
during those proceedings. The bill does not intend to change
that.
MR. PTACIN said what sometimes happens when the union has made a
decision not to take a case to arbitration is that the worker
files suit against the employer, and the case ends up in
superior court. That is what the bill takes aim at; it creates a
privilege for everything that happened in that other realm.
SENATOR WIELECHOWSKI said that was seriously inaccurate. First,
not all the cases are governed by the Alaska Labor Relations
Act, many are governed by the National Labor Relations Act.
Second, the state is requesting confidential documents and
information that the employee shared with his or her business
representative. It's not necessarily in the unfair labor
practice realm; it can be any realm at all. He said the amicus
brief specifically addressed a case where the state subpoenaed
the employee to get confidential communications between the
employee and his business representative.
MR. PTACIN countered that the state was in civil litigation at
that point. The member and the union no longer had a
relationship, and the member had put everything at issue by
filing a breach of contract claim against the state. The
individual was saying that the state treated him unfairly by
terminating him and by what happened during the grievance
process.
CHAIR FRENCH asked for an example of why a court case would be
more advantageous to an employee than the arbitration process.
MR. PTACIN said he would defer the question to others because he
had no idea.
2:17:24 PM
SENATOR COGHILL asked if there was case law on this.
MR. PTACIN responded that the collective bargaining agreement
recognizes the inherent need to allow a member to communicate
with the union while the grievance process is ongoing. However,
no court has said there was a privilege under common law, or
anything less than a statute, once that process ended and the
member made a decision to put the entire matter at issue in
superior court.
SENATOR WIELECHOWSKI asked if the state agreed that in the
context of the grievance and arbitration processes, the
communications between the employee and union representative are
privileged and confidential.
MR. PTACIN replied he wasn't aware of any collective bargaining
agreement that used the term "privilege."
SENATOR WIELECHOWSKI asked what ALRA would say.
MR. PTACIN said it would probably be called a confidence, but he
didn't believe it would elevate to a privilege.
2:19:49 PM
SENATOR COGHILL asked if the employee didn't agree to a certain
duty to the employer when he or she took employment.
MR. PTACIN replied that would be specific to the collective
bargaining agreement, but there probably were times when the
union had a duty to tell the employer that something was going
on that should be addressed.
SENATOR COGHILL asked if an employer wouldn't have a right to
know if there were conversations between a business agent and an
employee about somebody not fulfilling a license, for example.
MR. PTACIN said that was just one of the conversations that
would have to take place regarding what this privilege does and
what it would create.
SENATOR WIELECHOWSKI said his experience was that many unions
have business representatives who are non-attorneys, although
they function essentially as attorneys. He said both the NLRA
and ALRA allow this, and he can't understand what public policy
reason there would be for saying that conversations between an
employee and his or her business representative who happens to
be an attorney are privileged, but when the business
representative happens to be a non-attorney the communications
are not privileged.
MR. PTACIN opined that it was an oversimplification to say that
a business representative acts essentially as an attorney
because that business agent not only represents the employee
during the grievance process but also the collective as a whole.
SENATOR WIELECHOWSKI pointed out that the business
representative who happened to be an attorney was doing that
too.
MR. PTACIN offered his view that an attorney represents a
client.
SENATOR WIELECHOWSKI responded that there was no difference at
all whether it was a union attorney or a business representative
who was not an attorney.
MR. PTACIN said the bottom line was that the attorney represents
both the individual's interest and the union's collective
bargaining interests.
SENATOR WIELECHOWSKI responded that the same holds true for the
business representative.
2:23:33 PM
SENATOR COGHILL asked if a business agent acting in that
situation would get legal counsel from the union.
SENATOR WIELECHOWSKI replied that sometimes they do, but not
always.
2:23:57 PM
CHAIR FRENCH reviewed the reason for the bill and the facts in
one case that alleged abuse of discovery practices.
SENATOR COGHILL asked if the issue in that specific case was
that the state subpoenaed conversations that took place between
a union representative and an employee during the grievance
process.
CHAIR FRENCH said yes.
SENATOR COGHILL asked what issue had to be resolved.
MR. PTACIN explained that in that particular collective
bargaining agreement, the union member had to take a final step
in the grievance process. The member had to communicate with his
union internally to voice disagreement with the business agent's
decision and ask the full board to decide whether the case
should go to binding arbitration. If the member didn't take that
final step, the case in superior court would likely be dismissed
because the member hadn't exhausted every opportunity for the
employer to consider whether it treated the employee fairly.
SENATOR COGHILL asked if the state would be able to subpoena the
record of the board decision.
MR. PTACIN replied that question is before the court right now.
The state thinks these records are very helpful in proving fair
treatment of the employee in the breach of contract claim that
the employee brought against the employer. The state believes
that there is opportunity for those documents to show bias and
prior inconsistent statements. An entire array of issues could
come before the jury that is deciding whether the employer
treated the employee fairly.
CHAIR FRENCH voiced sympathy with the notion that the state was
reaching into a privileged communication. "It feels invasive,"
he said.
SENATOR COGHILL said it would be valuable to know if the
subpoena was asking about strategy or something that would
adversely affect the company.
MR. PTACIN said the exhaustion issue was likely a communication
between the member and the union and the bill would not allow
the state to probe for that information even though the member
put it at issue.
He raised several questions about Section 2. He questioned
whether subsection (a)(1),(2) might cause problems for the court
if it has to decide what will trigger the privilege. Under
subsection (b)(2), he said it appeared that the only time the
union had the ability to disclose was if there was an ability to
prevent crime. His reading of the AFLCIO brief was that the
union wanted the ability to weigh in if it was for the benefit
of the entire membership, and the bill didn't do that. He said
he'd like to hear the drafter's intention regarding subsection
(b)(3) because it appeared to require the state to prove that
its need for the information outweighed the union's need for
confidentiality. Subsection (b)(4) says the employee can waive
the privilege in writing, but an employee can waive a privilege
at any time if they discuss it with anybody or it comes up in
discovery. Finally, subsection (d)(2)(A) has a list of forums
where this would apply, yet the only forum that was at issue was
the judicial forum and the subsequent litigation that is brought
by the member against the employer.
2:32:11 PM
SENATOR WIELECHOWSKI read Section 2, subsections (a)(1),(2) and
questioned the public policy rationale for allowing an employer
to delve into confidential information that was acquired in
connection with providing advocacy services.
MR. PTACIN said the first policy reason was that the matter was
in civil court and the jury needed to know the latent facts in
the advocacy relationship in order to make a decision about the
fairness of the grievance proceeding. The second policy reason
was that there are affirmative defenses in these cases and there
are certain conversations that happen between the union and the
union member that are central to affirmative defenses, including
exhaustion. He said this was more about what was happening at
the civil court level because all these confidences were intact
while that process was ongoing.
CHAIR FRENCH commented that he understood the exhaustion issue,
but believed there were easier ways to get there.
SENATOR COGHILL asked, up to binding arbitration, if there had
been a problem keeping conversations between the union
representative and the union member private and off the table.
MR. PTACIN said no; it was only when the union decided against
taking the matter to binding arbitration and the member decided
to sue, putting everything at issue in superior court.
2:35:18 PM
DOUGLAS MERTZ, Attorney, Juneau, AK, told the committee that
this issue came to him because of a client who was unjustly
terminated by the state. The state required him to pursue his
claim through an exhaustive administrative process and to use a
union representative as his advocate.
SENATOR COGHILL voiced his understanding that the union member
did not exhaust his administrative remedies.
MR. MERTZ confirmed that the state alleged that the member did
not completely exhaust his administrative remedies. The law says
the employee has to use his or her union advocate and may not
use an attorney as an advocate during that administrative
grievance process, including the arbitration.
CHAIR FRENCH asked the reason for that rule.
MR. MERTZ responded that the only answer was that at some point
in the collective bargaining agreement, both the state and the
multiple unions decided it was in their collective best interest
to freeze out private attorneys.
CHAIR FRENCH commented that it might be to keep costs down.
SENATOR COGHILL asked if a union representative would generally
get legal counsel during the proceeding.
MR. MERTZ said his experience was that they do not, unless some
unique legal question is at issue. The union member can hire a
private attorney to advise him or her, and that attorney can try
to advise the union lay advocate, but that brings the problem.
After the union member filed suit, the state subpoenaed all
union records related to the member, including all
communications between his private attorney and the union
representative.
SENATOR COGHILL asked if the union could have subpoenaed the
employer for all records concerning conversations to that
employee.
MR. MERTZ said he tried that but, according to the state, the
state can get all the union materials once the matter gets into
litigation, but the union and the private attorney cannot get
any correspondence from the state.
SENATOR COGHILL asked what happens when one private employer
wants information from another private employer about a union
member.
MR. MERTZ responded that the private employer could probably get
the information with the exception of attorney client
communications.
CHAIR FRENCH confirmed that attorney client communications were
highly protected.
MR. MERTZ said the state wanted all attorney client tactical
discussions and decisions, including the lay advocate's legal
research files. The state wanted information that would never be
exchanged in civil litigation.
SENATOR COGHILL asked for further clarification of private
communications.
Mr. Mertz explained that, in this case, Mr. Ptacin said he
needed the information that the union lay-advocate held about
exhaustion of administrative remedies. If an attorney were
involved, there might be an ability to define a certain class of
information that would not invade the attorney's thought
processes of private communications.
CHAIR FRENCH commented that the last union act was internal so
it was difficult for an outsider to know whether all the
remedies were exhausted.
MR. MERTZ said, in this case, the state asked for written
discovery and the client testified under oath as to all those
materials. If the state really needed something else like that
to make its case, the existing precedents interpreting the
attorney client privilege would allow the other side to get to
those materials, too. At issue were the core confidential things
about tactics, settlement possibility, and the thought
processes.
CHAIR FRENCH hypothesized that the union might tell the employee
it wasn't taking the case any further because, from their
perspective, the case was a "stinker." The employee makes the
decision to go to court and the state wants that final statement
from the union so it can show the judge and jury what the union
thought about the case.
MR. MERTZ added that if the state could get the records that
show that, it could also call the union advocate as a witness
against his own client.
SENATOR COGHILL asked if what comes before a court is the verbal
"he said, she said" unless there was some action outside the
arbitration.
CHAIR FRENCH responded that what comes before the court should
be all the things that happened in the workplace that made the
individual a good or bad employee.
2:44:42 PM
MR. MERTZ relayed that in a parallel case, the California
Supreme Court said it would be ridiculous to assume that the law
intended that the only advice the union advocate could give to
the client was "Don't talk to me." He said that since the lower
ruling that was the current situation in this state. Union
members cannot be assured that communications with the union are
confidential.
CHAIR FRENCH commented that there should be a form that the
employee and the union advocate sign attesting to the fact that
the union member exhausted all remedies. He reiterated that he
was sensitive to the issue.
MR. MERTZ said there were two reasons the Legislature should
address the matter when it was before the Alaska Supreme Court.
The first reason was that union communications in this state are
not and will not be confidential until either the court acts or
the Legislature passes a bill like this. The second reason was
that the issue before the court was whether it was
unconstitutional, as a violation of due process, to allow the
state to demand this information from the union and union
member. That constitutional bar of due process is very high and
very difficult to meet, whereas the Legislature can make a
judgment call based on fairness and good policy.
SENATOR COGHILL asked if there were other instances of the
employer subpoenaing information between the union advocate and
union member.
MR. MERTZ said he wasn't aware of it happening in Alaska, but
the state just started making this sort of request a couple of
years ago. A number of other states and the National Labor
Relations Board (NLRB) have said the employer cannot ask for
this information. Two states have enacted legislation and this
bill models the Illinois legislation.
SENATOR COGHILL commented that HB 224 tried to delineate what
information was and was not going to be available.
MR. MERTZ agreed and added that the bill also had an escape
provision that allowed the judge, when asked, to make a judgment
call as to which interest was more important.
2:48:35 PM
KATE SHEEHAN, Deputy Director, Personnel and Labor Relations,
Department of Administration, said her testimony would focus on
Section 2 and the proposed amendment to AS 23.40. That section
specifically talks about the grievance and arbitration
procedures conducted under the authority of collective
bargaining agreements.
She stated that the proposed legislation would turn the
grievance process into a legal process found only in the courts.
It was to the betterment of both parties to have a grievance
process that was self-governing and bargained. Both parties have
bargained specific grievance processes into their collective
bargaining agreements and both parties are bound to follow the
process. The union representatives work with Division of
Personnel and Labor Relations representatives and attorneys were
not involved.
MS. SHEEHAN confirmed that some of the labor relations analysts
on staff had legal training and background but were not
practicing attorneys. Therefore, she said, there was no
privilege attached to their communications.
She opined that fairness was not an issue with regard to Section
2 because there was no subpoena authority in the state's
collective bargaining agreements. The Uniform Arbitration Act in
Title 9 allows for subpoena and arbitrations if expressly
adopted in the collective bargaining agreement. The state has
not done this except in the instance of the Public Safety
Employees Association (PSEA) where the arbitrator can subpoena
non-state employees to appear. She said that during her tenure
as deputy director she did not recall a time that the state
tried to subpoena union member communications. Furthermore, at
any point in the grievance process either party can argue that
the other was being unfair or not handing over documents
necessary to present the case. It would then be up to an
arbitrator to decide if the request was relevant to the
proceedings at hand. She concluded that SB 224 would undermine
what the parties have already agreed to through bargaining.
2:52:06 PM
SENATOR COGHILL asked for clarification because he understood
that the bill addressed what happened after the grievance
process when the employee decided to go to court.
MS. SHEEHAN responded that Section 1 dealt with the code of
civil procedure, which was the issue in the current case,
whereas Section 2 talked about the grievance processes. She
reiterated that confidentiality would apply and the state would
not have the ability to subpoena confidential communications
during the grievance process.
SENATOR WIELECHOWSKI questioned how this would undermine
collective bargaining if PERA, the NLRA board, and the ALRA
board already ruled that the information was privileged.
MS. SHEEHAN said that language was bargained into agreements
about what union stewards and/or board members can and cannot
do. She said her understanding of PERA was that the unions and
employer work together to agree on the wages, hours, terms, and
conditions of employment, which would fall under "Terms and
Conditions of Employment."
SENATOR WIELECHOWSKI asked if the state wanted the ability to
get all the confidential communications between an employee and
the employee's representative.
MS. SHEEHAN responded that she was only testifying about Section
2.
SENATOR WIELECHOWSKI reiterated his question, and asked for a
yes or no answer.
MS. SHEEHAN answered no. She added that the state did not have
that ability now, and "at this point there's been no push to
bargain the Uniform Arbitration Act subpoena."
CHAIR FRENCH observed that she was not speaking to the court
process, just what occurred within the grievance process.
MS. SHEEHAN confirmed that was correct.
SENATOR COGHILL asked if the rules change in the court process.
CHAIR FRENCH confirmed that they change dramatically.
SENATOR WIELECHOWSKI disagreed with Ms. Sheehan's
interpretation.
CHAIR FRENCH suggested the committee would hear a rebuttal
witness after Ms. Sheehan finished her statement.
2:55:58 PM
MS. SHEEHAN said the legislation would also present problems for
agencies that provide security-related services. She cited a
specific case from the Department of Corrections where a shift
supervisor, who happened to be a union board member, did not
pass along a report of potential unethical actions because he
thought the information was given in confidence. She said both
the union member and the union representative could hide behind
this legislation and place management in a very difficult
position.
SENATOR COGHILL said his question was answered about the
difference between the strategies of how a supervisor who was a
union steward can advise an employee against how it affected the
duties required in the job.
CHAIR FRENCH commented that there should be a way to define
around whether or not to disclose something about an unsafe
practice at a prison.
2:58:30 PM
STEVEN SORENSON, Attorney, Juneau, AK, said he represented the
Public Safety Employee Association (PSEA) and the union believed
the legislation was important. He relayed that two PSEA members
sued the City of Fairbanks after each went through the grievance
procedure and arbitration and had satisfied the entire
administrative procedure found in the collective bargain
agreement. Civil attorneys representing the city subpoenaed all
the union records for the two members with regard to the advice
and strategies used when PSEA represented them under the
collective bargain agreement. The city's attorneys also deposed
the former executive director of the union seeking the same
information. In each instance, PSEA responded to the subpoena
and provided limited discovery and the list of privilege that it
was not going to supply. In the deposition, the former executive
director indicated that he would not provide the information
unless ordered to do so by a court. The city's attorneys didn't
press the issue in either instance, but it wouldn't take much
and they could anticipate a further push for more information.
SENATOR COGHILL assumed that the employees weren't happy with
the binding arbitration settlement.
MR. SORENSON explained that a union was obliged under its duty
of fair representation to review and take properly presented
grievances through the administrative procedures process set out
in the collective bargain agreement. However, the decision of
whether or not arbitration should go forward lay solely with the
union, not the grievant. If the union decided not to go forward
with arbitration, the duty of fair representation ends and the
employee then has the right to take civil action. If the union
decided to go to arbitration, the employee would have the right
to sue if he or she didn't like the outcome.
SENATOR COGHILL commented that the rules change when the case
goes to civil court and it seemed that discovery should change
as well.
MR. SORENSON responded that the conversations that the union
representative had with the member with regard to representation
during the period of advocacy under the contract should remain
protected. SB 224 does that; it ensures that those
conversations, strategies, and thought processes remain
confidential and privileged despite the subsequent actions of
either the employee or the employer.
SENATOR COGHILL said he was trying to understand when strategy
advice would compete with policy and procedure advice that would
determine the competency of an issue.
CHAIR FRENCH reiterated that there should be a way to let a
court know whether the procedural steps of exhaustion to
remedies had taken place. It should not be a secret.
MR. SORENSON responded that it was not a secret because the
employer, the employee, and the union were in lockstep through
all the steps of the grievance procedure.
CHAIR FRENCH asked if arbitration was part of the exhaustion of
remedies sequence.
MR. SORENSON said that arbitration was the final step in every
PSEA collective bargain agreement, and it was final and binding.
SENATOR COGHILL asked if that was a contractual obligation.
MR. SORENSON said yes and it exists in PERA.
SENATOR COGHILL offered his belief that not fulfilling that
complete contractual obligation could really be the question.
3:08:12 PM
CHAIR FRENCH announced he would hold SB 224 in committee.
3:08:20 PM
There being no further business to come before the committee,
Chair French adjourned the Senate Judiciary Standing Committee
meeting at 3:08 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 224 Sponsor Statement.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 Sectional Analysis.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 Relevant Statutes.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 20110718 PetRev Brief final copy.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 amicus brief of AFLCIO 20110718.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 Brief of Appellee State of Alaska.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 RP reply brief final 20111007.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB 224 testimony, Mertz 032012.PDF |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB224-DOLWD-ALRA-3-16-12.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| SB224-DOA-LR-3-7-12.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| HB327 Supporting Documents-Letter Doug Mertz re SB224.pdf |
HL&C 3/21/2012 3:15:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 327 SB 224 |
| SB 224 lttr supporting, Boyles, Teamsters 032012.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/22/2012 1:30:00 PM |
SB 224 |
| SB 224 lttr supporting, Johnson, Local 71 032012.PDF |
SJUD 3/30/2012 1:30:00 PM SL&C 3/22/2012 1:30:00 PM |
SB 224 |
| SB 224 lttr supporting, ACLU 032212.pdf |
SJUD 3/30/2012 1:30:00 PM SL&C 3/22/2012 1:30:00 PM |
SB 224 |
| SB 224 lttr supporting, Angaiak, NEA 031912.PDF |
SJUD 3/30/2012 1:30:00 PM SL&C 3/20/2012 1:30:00 PM |
SB 224 |
| HB56 Sponsor Statement 02-08-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Version M 01-18-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Relevant Statutes.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Fiscal Note-LAW-CRIM-02-11-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Fiscal Note-DOC-OC-02-11-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Supporting Documents-Letter AFCA 02-15-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Supporting Documents-Letter APOA 02-14-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Supporting Documents-Letter Daniel Jager 02-17-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Supporting Documents-Letter Investigators 02-15-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| HB56 Supporting Documents-Letter Mark Hall 02-15-11.pdf |
HJUD 2/21/2011 1:00:00 PM SJUD 3/30/2012 1:30:00 PM |
HB 56 |
| SB 138 Version U.pdf |
SJUD 3/30/2012 1:30:00 PM |
SB 138 |