Legislature(1999 - 2000)
03/04/1999 08:04 AM House CRA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 43-MUNI.ORDINANCES:POLICE TRAINING SURCHARGE Number 2270 CO-CHAIRMAN HALCRO announced that the next order of business before the committee would be HOUSE BILL NO. 43, "An Act relating to police training surcharges imposed for violations of municipal ordinances." The committee took a brief at-ease from 8:35 a.m. to 8:37 a.m. REPRESENTATIVE DAVIS, Sponsor of HB 43, Alaska State Legislature, explained that the need for HB 43 came to his attention after the Kenai Borough Attorney saw technical and legal problems with the legislation. Representative Davis read the sponsor statement as follows: The Police Training Fund was established to provide training for the law enforcement and corrections community of the state. Appropriations to this fund may be made from income derived from the imposition of surcharges on criminal convictions. Last year, legislation was passed expanding the types of crimes for which a surcharge is imposed and increasing the amount of the surcharge applied. This surcharge is imposed on both state and municipal law violations. Recently, concern was raised that the phrasing used in the legislation could be interpreted as requiring surcharges to be imposed on civil as well as criminal violations of the law. Additionally, it was argued that if a local government did not authorize the imposition of a surcharge, an entire ordinance could be found invalid rather than just the section imposing the fine. House Bill 43 is a housecleaning measure to address these two concerns. First, the legislation clarifies that the surcharge will be imposed on a violation of a municipal ordinance that imposes a criminal penalty for its violation. Second, this legislation specifies that the municipality can not enforce (or collect) a penalty for a violation unless the municipality also authorizes the imposition of a surcharge on a violation. DEB DAVIDSON, Legislative Administrative Assistant to Representative Davis, said that she was present to answer questions. REPRESENTATIVE JOULE asked if a surcharge could be dedicated. MS. DAVIDSON stated that the surcharge is not dedicated. The Police Training Fund has been designated in statute. Ms. Davidson explained that the money collected from the surcharge is collected and placed in the general fund where it is accounted for as is the case for other designated funds. The intent is to place the surcharge funds in the designated Police Training Fund, but Ms. Davidson did not believe the legislature could actually mandate such. REPRESENTATIVE DAVIS informed the committee that legislation in this regard usually uses the following language, "legislation can be" rather than "shall be" which circumvents the constitutional prohibition of dedication. Number 2537 REPRESENTATIVE MURKOWSKI assumed that there have been some problems in the application of the surcharge which lead to the concerns resulting in HB 43. REPRESENTATIVE DAVIS understood that to date there had not been any problems. He pointed out that the original legislation would not allow municipalities to collect the surcharge until the municipality passes an ordinance which was of concern. MS. DAVIDSON was not aware of any problems. The letter from the Kenai Borough expressed concern that the legislation could be interpreted as applying to the criminal and civil penalties. Further concern arose because certain municipal ordinances use language that, under the original legislation, would result in the inability to enforce an ordinance unless the surcharge was collected. Number 2644 MS. DAVIDSON, upon Representative Davis' request, used the following example: if a person needing a building permit for an addition to a home did not obtain a building permit, there would be a $50 fine issued for this civil penalty. The concern arose from the language in HB 43 which does not differentiate between criminal and civil penalties and therefore, the civil penalty would have a surcharge imposed upon it. There was also concern that if a municipality did not authorize the imposition of a surcharge, the municipality could not impose the fine for the civil penalty nor could the municipality enforce the building permit requirement due to the phrase "cannot enforce an ordinance". The concern that under the previous language, all aspects of an ordinance could be argued invalid rather than only the penalty portion. The concern lead to the changes in Section 2 of HB 43. CO-CHAIRMAN HALCRO asked if he were to violate an ordinance, would he pay that fine in his bail to the municipality or does the state send out a bill. MS. DAVIDSON said that when a ticket, for example a traffic ticket, is issued the ticket lists the surcharge; all charges are included. CO-CHAIRMAN HALCRO understood that once the municipality collects the fine, the money is transmitted to the state where it is placed in the general fund. According to the language on page 2, lines 18-19, the municipality would be reimbursed up to 10 percent of the fine. Then the state places that in the general fund to be distributed and goes into a general police training fund. Is it prorated for the municipality's contribution? He inquired as to the destination of the redistribution of the funds. MS. DAVIDSON noted that this was an amendment that Senate Finance placed in the legislation last year. There was discussion whether the court system or municipality should keep the 10 percent of the collection or the entire surcharge given to the state to be appropriated back to the municipality. The Senate Finance committee preferred the entire surcharge to come to the state who would then decide what percentage up to 10 percent the municipality would be reimbursed. CO-CHAIRMAN HALCRO inquired as to how the percentage is determined. Number 2896 MS. DAVIDSON did not know. With regard to the reimbursement of the municipalities, last year's Senate Finance committee determined that the entire surcharge would be collected and then a portion reappropriated back out. If the funds are placed in the Police Training Fund, that fund may be appropriated to the Department of Public Safety to the Police Standards Council for the State Trooper Academy in Sitka or to municipal police training academies meeting the Alaska Police Standards Council requirements. REPRESENTATIVE JOULE commented that the placement of the funds in the state's general fund is a way to increase state jobs rather than have the jobs at the local level. TAPE 99-11, SIDE B MS. DAVIDSON understood that the court system already has an accounting system in place to estimate the money coming in. She informed the committee that last year, Anchorage was not concerned with the collection. CO-CHAIRMAN HALCRO asked if the funding for the Police Training Fund was dollar for dollar. REPRESENTATIVE DAVIS clarified that would be the legislature's decision with the appropriation of dollars to the various funds. Last year, the surcharge was estimated to bring in $1.2 million per year. Whether that money is kept in the general fund or rolled into the training fund is up to the legislature. In further response to Co-Chairman Halcro, Representative Davis was not sure of the time taken for the state to reimburse the municipality. He deferred that question to Ms. Shaw. Representative Davis believed that the municipalities would benefit from the Police Training Fund whether the municipalities receive money back or not. Representative Davis believed if there was no one else to testify, it would be beneficial for Jerry Luckhaupt to testify. Number 2800 JERRY LUCKHAUPT, Legislative Counsel, Legislative Legal and Research, Legislative Affairs Agency, said that HB 43 makes minor changes to the changes made last year. Mr. Luckhaupt noted that the Alaska Court System had concerns with the legislature's ability to require the imposition of a surcharge on a violation of a municipal ordinance which was addressed by requiring the municipality to impose the surcharge otherwise the ordinance could not be enforced. Now there are concerns with that language because municipalities enact entire bodies of ordinances of which some may not have penalties. The concern was that the language could prevent the municipality from enforcing the entire ordinance. Mr. Luckhaupt did not entirely agree with that interpretation, but the concerns were addressed in HB 43. He informed the committee that there have not been any problems and that no one has lost a case on this issue yet. Only letters between attorneys have raised the possibility of a problem. MR. LUCKHAUPT pointed out that the substantive portion of HB 43 is Section 2 where the following change is made, "A municipality many not enforce a penalty for violation of an ordinance for which a surcharge is required to be imposed ..." which he feels addresses the possibility that a municipality could enforce any other portion of an ordinance that does not deal with the penalty. Further, the imposition of the penalty was confined to criminal violations or violations of municipal ordinances that had a penalty enforced through the criminal courts. MR. LUCKHAUPT recognized that there was also concern the legislation would prevent municipalities from enforcing their ordinance through civil means. He informed the committee that a government can utilize two methods of coercion to enforce compliance. One method is through a criminal or quasi criminal process. He explained that the process would be criminal if the prosecution is for a felony or misdemeanor penalty while the process would be quasi criminal if it's a noncriminal infraction or violation. For example, traffic tickets are infractions and noncriminal by definition and do not have criminal penalties attached, but traffic tickets are still enforced through the criminal courts. There is also the civil process for enforcing ordinances or statutes and those are enforced through the civil courts and may have a penalty attached, a civil judgment not a fine. MR. LUCKHAUPT addressed the earlier references to dedicated funds by emphasizing that the surcharge cannot be dedicated. The legislature establishes a fund and the money to be placed in the fund is accounted for separately and the legislature appropriates the money into the fund. The statute will say, "the legislature may appropriate, in this case, the surcharge money to the fund." Mr. Luckhaupt pointed out that there is a problem with allowing the municipality to keep the 10 percent at the time of collection. The statute says that the reimbursement may not exceed 10 percent which leaves the percentage in the hands of the legislature. Further, this is state revenue and must be appropriated. Last year Senate Finance determined that the municipality should not receive more than 10 percent of the surcharge because the legislature did not want to create a windfall if the municipality's efforts to collect the surcharge were fairly minor. Mr. Luckhaupt reiterated that if the legislation allowed the municipality to keep 10 percent of the surcharge, it would become a dedicated fund which the legislature cannot do. Number 2365 REPRESENTATIVE MURKOWSKI asked if the issues regarding civil and criminal proceedings were brought up last year. MR. LUCKHAUPT said there was discussion on those issues from Representative Porter and Senator Donley. In last year's legislation, there is a cut off in which the fine must be greater than $30 in order to assess the surcharge. That language was in response to parking tickets of which many are less than $30 and a surcharge was not desired for those violations. Mr. Luckhaupt noted that at the time the surcharge was addressed in Title 12 which deals with criminal procedure and sentencing. At the time, he felt that they were dealing with the criminal enforcement mechanisms. Some violations of building codes are criminal; the municipality chooses to enforce that through a civil or criminal process. Often, municipalities have chosen to enforce violations thought of as civil in criminal courts, therefore this surcharge would apply to those violations. That was noted in the committee process last year. REPRESENTATIVE DAVIS emphasized that the changes in HB 43 address the concerns of the municipalities to date. CO-CHAIRMAN HARRIS asked if Representative Davis believed that the money collected from the surcharge is going to police training. REPRESENTATIVE DAVIS replied yes. Last year's legislation expanded the surcharge law, but this year will be the first year the legislature will have the ability to appropriate additional funds. Representative Davis believed that in the past, all the surcharge funds were allocated to the police training fund. Number 1982 CO-CHAIRMAN HARRIS moved to report HB 43 out of committee with individual recommendations and the two accompanying fiscal notes. There being no objection, it was so ordered.
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