Legislature(2015 - 2016)BARNES 124
03/05/2015 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB75 | |
| HB47 | |
| HB104 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 104 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 75 | TELECONFERENCED | |
| += | HB 47 | TELECONFERENCED | |
HB 104-IMMUNITY FOR FIRE DEPT. & MEMBERS
8:20:12 AM
CHAIR TILTON announced that the final order of business would be
HOUSE BILL NO. 104, "An Act relating to immunity for a fire
department and employees or members of a fire department."
8:20:38 AM
DAN BELLERIVE, Staff, Representative Tilton, Alaska State
Legislature, paraphrased from the following written statement
[original punctuation provided]:
House Bill 104 was brought up in our office as a
companion to a bill in the other body.
This bill intends to fix an oversight that failed to
include certain fire departments when providing legal
protection.
Under current statute some immunities are given to
municipal fire departments and their members, but no
protection is provided for fire departments are under
contract with the municipalities.
We feel that liability protections should not be
exclusive to municipal fire departments and should be
extended to all fire departments that have a
contractual relationship with local government.
The inclusion of these departments is accomplished
with the additional definition provided on lines
eleven and twelve of the bill.
This amendment mirrors an amendment that was offered
in the other body that was offered to create an
exception from the legal immunity in cases where a
fire department or its members' actions are
intentionally wrong or performed with extreme
disregard.
The language in this amendment is similar to that of
the Immunity for 911 systems, where there is an
exception for intentional acts of misconduct or gross
negligence.
8:21:59 AM
REPRESENTATIVE SEATON asked if this extends to a private
contractor that is providing fire suppression services for a
business. He further asked if the proposed definition change
means that the person offering fire services isn't liable for
acts of negligence.
MR. BELLERIVE explained that HB 104 does provide protection for
acts that are considered negligent, which he suggested could be
fixed via an amendment. However, with regard to contractual
services, Mr. Bellerive specified that the legislation strictly
speaks to fire departments that are contracted to the government
as opposed to a subscription service.
8:23:16 AM
JILL DOLAN, Assistant Borough Attorney, Fairbanks North Star
Borough, noted her agreement with Mr. Bellerive's explanation.
The current language of HB 104 does offer complete immunity to
fire departments as well as their employees and members.
However, existing statute provides immunity for municipal
employees and members of municipal fire departments, but not for
those fire departments with which the municipality contracts to
provide services. Ms. Dolan further clarified that current
statute offers municipal employees and members of the
[municipal] fire department complete immunity, and thus they
wouldn't have personal liability, even for acts of negligence.
For the municipality itself, for its fire department,
discretionary function immunity is offered in subsection (d) of
the same statute. This legislation, she explained, extends the
immunity for employees and members to the contracted fire
departments for the municipalities. She pointed out that there
is additional language extending immunity to the fire
departments themselves. She said, "The fire department
themselves, in the current draft of the bill, would extend to
the acts of negligence that you inquired about, Representative
Seaton."
8:24:50 AM
REPRESENTATIVE SEATON inquired as to how far the contractor
relationship goes. He further inquired as to whether the
proposed extension [of immunity] in HB 104 provides contractual
immunity to the person providing the fire suppression services.
MS. DOLAN clarified that HB 104 wouldn't extend [immunity] to
the subscription services. The legislation intends to extend
the immunity to those providing services on behalf of the
municipality or village.
8:26:26 AM
REPRESENTATIVE HUGHES inquired as to whether a municipality can
contract with a for-profit fire service.
MS. DOLAN specified that a municipality can contract with a for-
profit entity. She clarified that an individual for-profit or
nonprofit entity that did not contract with a municipality or
village but rather provided a subscription service to residents
would not be covered by HB 104. The legislation, she further
clarified, extends immunities that are currently available to
municipalities to their contractors. For example, the Fairbanks
North Star Borough has fire service areas that contract various
entities to provide fire services to its residents. The
intention with HB 104 was to extend immunities available to the
municipality to those contractors, which may be for-profit
contractors.
8:28:12 AM
REPRESENTATIVE REINBOLD asked whether a group of users in an
area where they are trying to reduce the use of fire fuels would
be considered contractors and have immunity or not.
MS. DOLAN responded, "If they are in the execution of a function
for which they're established and they're contracting with a
municipality for that service, then they would be covered." In
further response to Representative Reinbold, Ms. Dolan confirmed
that without a contract, they would not be covered. This
legislation wouldn't apply to a group performing services for
the state.
8:29:18 AM
REPRESENTATIVE HUGHES inquired as to the current status of
municipal fire departments and their employees in terms of
complete immunity.
MS. DOLAN clarified that under existing statute employees and
members of municipal fire departments are offered immunity. The
municipality itself for the fire department, under subsection
(d) of the statute, has discretionary function immunity from
damages claimed. Municipal fire departments don't currently
enjoy complete immunity, rather just discretionary function
immunity.
REPRESENTATIVE HUGHES surmised then that HB 104 would offer the
fire department itself complete immunity.
MS. DOLAN replied yes, as currently drafted.
REPRESENTATIVE HUGHES further surmised then that under HB 104,
municipal fire departments and contracted fire departments with
municipalities as well as employees and volunteers with
contracted and municipal fire departments would have complete
immunity.
MS. DOLAN confirmed that Representative Hughes is correct in
terms of the current language of HB 104. However, she informed
the committee that an amendment that would offer immunity with
the exception of acts of intentional misconduct or gross
negligence has been discussed in relation to the companion
legislation. Ms. Dolan opined that such an amendment would
resolve Representative Hughes' concern with regard to the
complete immunity.
8:31:53 AM
REPRESENTATIVE HUGHES related her understanding that this
legislation would impact about 10 fire departments that don't
have the same immunity. She then asked whether those fire
departments pay liability insurance and whether passage of HB
104 would result in a savings to those fire departments if they
didn't have to have liability insurance.
MS. DOLAN said she couldn't answer that question and deferred to
Chief Flynn, Steese Volunteer Fire Department.
8:32:59 AM
REPRESENTATIVE SEATON expressed interest in clarification as to
the universe of people covered by HB 104, particularly since the
legislation refers to a village without defining it as an
established village. He posed a scenario in which a village
contracts with an entity to provide suppression services and the
same contractor provides services for an oil company or a
corporation that had facilities. In such a scenario, he asked
whether HB 104 would grant immunity whether the services for
that contractor were being provided for that village itself or
would it extend to the contractor providing services under
potentially a separate contractor to a business within the
community or the region.
MS. DOLAN informed the committee that this section of law
operating the immunity is titled "Suits Against Incorporated
Units of Local Government." She then explained that in
Representative Seaton's scenario, the definition of "fire
department" in HB 104 would cover the village. She further
explained that it was intended to be related to a contractual
relationship, and thus was an extension of a governmental
immunity and was not intended to cover the private functions the
entity would perform. She offered to review it more closely to
ensure there is no unintended consequence, but stated that
wasn't the intent.
REPRESENTATIVE SEATON requested that the aforementioned be
addressed.
8:36:08 AM
REPRESENTATIVE HUGHES related her appreciation for the volunteer
firefighters around the state. She then inquired as to the
training and qualifications of the contracted and volunteer
nonprofit fire fighters as opposed to municipal firefighters.
MS. DOLAN deferred to others.
8:38:13 AM
DAVID GIBBS, Director, Emergency Operations, Fairbanks North
Star Borough, informed the committee that training standards are
established by the National Fire Protection Association and
those standards are followed by all firefighters, whether
volunteer or career department. Therefore, the training
provided and conducted by volunteer fire departments is
identical to that of the career departments. Mr. Gibbs noted
that he also serves on the Alaska Fire Standards Council, which
establishes qualifications for firefighter training. He related
that the Alaska Fire Standards Council doesn't differentiate
between career and volunteer departments.
8:39:17 AM
REPRESENTATIVE HUGHES remarked that although she was aware of
the aforementioned, she felt it important for people to know.
She then commented that Alaska has excellent firefighters.
8:39:45 AM
REPRESENTATIVE SEATON stated his interest in the appropriate
witness to address whether the term "community" should be used
rather than "village."
8:40:21 AM
CHAIR TILTON opened public testimony.
8:40:28 AM
JEFF TUCKER, Second Vice President, Alaska Fire Chief's
Association, began by noting that he is a past fire chief of one
of the departments that would be impacted by HB 104. Mr. Tucker
opined that it's appropriate the legislature consider extending
the immunities that are enjoyed by municipal departments to
those departments who contract municipalities. He related that
typically the ones impacted by HB 104 will be service areas that
were formed to serve communities in the municipalities.
Examples of such areas are the Fairbanks North Star Borough, the
Chugiak and Girdwood Fire Departments. The [aforementioned]
agencies provide municipal services as not-for-profit
corporations, they may be volunteer departments or combination
departments. Therefore, extending the immunity to them is
important. With regard to the training of firefighters, he
confirmed that it's the same for municipal, volunteer, and
combination departments. In conclusion, he related support for
HB 104 from the Alaska Fire Chief's Association. With regard to
Representative Seaton's question, Mr. Tucker said he isn't aware
of any villages that currently contract with a fire entity or
corporation to provide fire services for the villages; however,
he admitted that doesn't mean there are not such situations.
8:43:20 AM
MITCH FLYNN, Fire Chief, Steese Fire Department, testified in
support of HB 104. The legislation, he opined, will protect the
firefighters as well as the taxpayers, who could be held liable
for the actions taken by the firefighters and a lawsuit that a
[firefighter/department] couldn't pay. Mr. Flynn related
support for HB 104 and pointed out the zero fiscal note. He
then related that the insurance broker for the Steese Fire
Department will realize a cost savings on the insurance premium
for general liability.
8:44:50 AM
DOUG SCHRAGE, Fire Chief, University of Alaska Fairbanks Fire
Department, related his support for HB 104. He then related
that he is a member and past president of the Alaska Fire
Chief's Association and currently sits on its Board of
Directors. He explained that the University of Alaska Fairbanks
(UAF) Fire Department is a student-based fire department that
provides fire service to the Fairbanks North Star Borough on a
contractual basis. Therefore, the UAF Fire Department would
benefit from the immunity extended under HB 104. As is the case
for many fire departments [in the state], UAF Fire Department is
a one fire department, which means the department is staffed and
equipped to handle one fire at a time. The UAF Fire Department,
he explained, is also a workforce development program
responsible for providing many of Alaska's municipal fire
departments with experienced and trained firefighters. In the
current fiscal environment, the concern with liability could be
a factor in the future of the program. He reiterated his
support for HB 104 and noted his agreement with the prior
testimony.
8:46:37 AM
VIRGINIA MCMICHAEL, Fire Chief, Chugiak Fire Department,
indicated that the Chugiak Fire Department would be impacted by
HB 104 as it's a nonprofit agency that has been providing
contract fire service to the Municipality of Anchorage for quite
some time. Municipal tax funds are used to provide the service
to the community and there are almost 100 volunteers who spend
100s of hours annually training and some 1,000s of hours
responding. She then noted that many of Chugiak Fire
Department's responders are career firefighters and medics in
other departments throughout the state as well as retired career
firefighters. In conclusion, Ms. McMichael related the Chugiak
Fire Department's support for HB 104.
8:48:04 AM
CHAIR TILTON, upon determining no one else wished to testify,
closed public testimony.
8:48:20 AM
REPRESENTATIVE SEATON, referring to page 1, line 10, of HB 104,
expressed concern with the lack of a definition for "village."
He then questioned whether the term "village" should be
"community as recognized by the Department of Commerce,
Community & Economic Development" as fire is one of the five
criteria for providing services on which communities are
recognized. He noted that a lot of communities in the state are
located in organized and unorganized boroughs that provide fire
service.
CHAIR TILTON said she will look into that.
8:50:01 AM
CHAIR TILTON moved that the committee adopt Amendment 1,
labelled 29-LS0550\A.1, Shutts, 2/27/15, which read:
Page 1, lines 7 - 8:
Delete "a fire department or"
Page 1, line 8, following "department.":
Insert "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."
Page 1, following line 12:
Insert a new bill section to read:
"* Sec. 2. AS 09.65.070(d) is amended to read:
(d) Notwithstanding (c) of this section, an [AN]
action for damages may not be brought against a
municipality or any of its agents, officers, or
employees if the claim
(1) is based on a failure of the
municipality, or its agents, officers, or employees,
when the municipality is neither owner nor lessee of
the property involved,
(A) to inspect property for a violation of
any statute, regulation, or ordinance, or a hazard to
health or safety;
(B) to discover a violation of any statute,
regulation, or ordinance, or a hazard to health or
safety if an inspection of property is made; or
(C) to abate a violation of any statute,
regulation, or ordinance, or a hazard to health or
safety discovered on property inspected;
(2) is based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty by a municipality or
its agents, officers, or employees, whether or not the
discretion involved is abused;
(3) is based upon the grant, issuance,
refusal, suspension, delay, or denial of a license,
permit, appeal, approval, exception, variance, or
other entitlement, or a rezoning;
(4) is based on the exercise or performance
during the course of gratuitous extension of municipal
services on an extraterritorial basis;
(5) is based upon the exercise or
performance of a duty or function upon the request of,
or by the terms of an agreement or contract with, the
state to meet emergency public safety requirements; or
(6) is based on the exercise or performance
of a duty in connection with an enhanced 911 emergency
system and is not based on an intentional act of
misconduct or on an act of gross negligence."
REPRESENTATIVE SEATON objected.
8:50:14 AM
MR. BELLERIVE explained that Amendment 1 mirrors an amendment
offered to the companion legislation in the Senate. Amendment 1
provides an exception to legal immunity in cases in which a fire
department or its member's actions are intentionally wrong or
performed with extreme disregard. The language of Amendment 1,
he further explained, is similar to that of the immunity for 911
systems in which there is an exception for intentional acts of
misconduct or gross negligence.
8:51:03 AM
REPRESENTATIVE SEATON asked if Amendment 1 places the liability
on the training activities at the University of Alaska Anchorage
and the Chugach Fire Department.
MR. BELLERIVE replied no, in so far as the description from
Legislative Legal Services.
8:52:01 AM
MR. BELLERIVE, in response to Representative Nageak, said he has
a memorandum from Legislative Legal Services that outlines the
purpose and functional changes of the legislation. In further
response to Representative Nageak, Mr. Bellerive specified that
he didn't receive a memorandum for Amendment 1, but did receive
an oral explanation as to the changes of the amendment. Mr.
Bellerive confirmed that Amendment 1 had been vetted by
Legislative Legal Services.
8:52:59 AM
The committee took a brief at ease.
8:53:53 AM
REPRESENTATIVE SEATON pointed out that the new Section 2
language proposed by Amendment 1 refers to municipality rather
than village or community. He asked if that is an intentional
change or not.
MR. BELLERIVE answered that it wasn't an intentional change but
rather was made to clarify that changes in the legislation
weren't intended to negate the protections afforded in
subsection (d).
8:55:26 AM
REPRESENTATIVE SEATON further pointed out that the new Section 2
language of Amendment 1 refers to a municipality only while the
general protection located on page 1, line 10, of HB 104 refers
to a municipality or a village. Therefore, he requested
clarification on the language.
8:56:02 AM
CHAIR TILTON announced that HB 104 and Amendment 1 [with
Representative Seaton's objection] would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Legal Memorandum, Conceptual Amendment to Amendment 2 Options.pdf |
HCRA 3/5/2015 8:00:00 AM |
HB 75 |
| HB104 Sponsor Statement.pdf |
HCRA 3/5/2015 8:00:00 AM |
HB 104 |
| HB104 Supporting Documents-Letter Mayor Luke Hopkins.pdf |
HCRA 3/5/2015 8:00:00 AM |
HB 104 |
| HB104 ver A.pdf |
HCRA 3/5/2015 8:00:00 AM |
HB 104 |
| HB104 Fiscal Note-DPS-FLS-02-27-15.pdf |
HCRA 3/5/2015 8:00:00 AM |
HB 104 |
| HB104 Draft Proposed Amendment ver A 1.pdf |
HCRA 3/5/2015 8:00:00 AM |
HB 104 |