Legislature(2003 - 2004)
03/08/2004 01:52 PM House FIN
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 514
An Act relating to child support modification and
enforcement, to the establishment of paternity by the
child support enforcement agency, and to the crimes of
criminal nonsupport and aiding the nonpayment of child
support; amending Rule 90.3, Alaska Rules of Civil
Procedure; and providing for an effective date.
JOHN MAIN, STAFF TO REPRESENTATIVE PETE KOTT, explained the
changes in the Judiciary Committee Substitute for HB 514.
[The first part of Mr. Main's testimony did not record.] He
said that Section 4 raises aiding and abetting the
nonpayment of child support to the felony level.
In response to a question by Representative Stoltze, Mr.
Main explained that he was formerly the Director of the
Child Support Division and that he now works for Speaker
Kott.
Mr. Main continued discussing the Judiciary version of HB
514. He remarked that a study conducted by Dr. Elaine
Sorenson noted that of the $90 billion owed throughout the
nation in child support, 70% of the individuals make less
than $10 thousand a year. In Alaska, individuals owe about
$250-300 million. The bill sponsor would like to give the
agency the authority to adjust these arrearages, so that the
parent can start making payments and the custodial parent
can count on child support coming in monthly. The child
support agency would gain in its performance measure of
collections, the custodial parent would gain with monthly
payments, and the child would gain another reliable parent.
Mr. Main explained that under current state law the agency
is not allowed to establish paternity for victims of rape or
incest, and consequently, the agency cannot establish a
child support order. The bill asks that the agency be given
that authority whenever a woman requests it.
Mr. Main noted that the bill addresses a modification
imposed by the federal government to comply with the state
plan this legislative session, or lose $14-75 million in
federal funds.
Representative Croft asked if there is a federal law
prohibiting the retroactive modification of child support
orders, and in what manner the state's ability to compromise
the orders would affect the federal rule. Mr. Main replied
that is correct, a state cannot retroactively modify a child
support order or arrearage, but a state can forgive the
debt. A state does not have to pay the federal portion of
the debt if the state does not collect it.
Representative Croft asked the practical difference between
child support payments that are too high being cut in half
versus a cumulative debt being halved. Mr. Main clarified
that the agency would create a new order to forgive a
hardship debt, as in a default order establishing what could
have been paid many years before. The agency does not
modify a current order. Representative Croft asked if
federal law prevents modifying on-going child support
orders. Mr. Main replied that he did not believe so.
LANDA BAILY, SPECIAL ASSISTANT AND LEGISLATIVE LIAISON,
DEPARTMENT OF REVENUE, stated that HB 514 is a collaborative
effort between the Department of Revenue (DOR) and Speaker
Kott and his staff. She noted that two of the bill's
provisions cause the department concern.
Ms. Baily stated that Section 12(f) in the Judiciary
Committee Substitute relates to arming the investigators in
the Child Support Enforcement Division (CSED). She shared
that the department takes seriously the security of its CSED
employees and their clients, and the security of the
information. Past incidents have led to security measures
including bulletproof glass and cardkey entry systems in
Anchorage, and emergency response procedures. Other offices
around the state also have response procedures, including
instructing employees to dial 911.
Ms. Baily continued explaining that CSED investigators are
commissioned as special officers by the Department of Public
Safety to gather documentary evidence for the conviction of
the current misdemeanor crime of non-support, or to help the
Department of Law obtain court judgments to secure the
payment of child support. It is a multi-agency effort
involving the departments of Revenue, Law, Public Safety and
the court system.
Ms. Baily stated that the Department of Revenue works hard
to ensure that Alaskan children receive their entitled
support. It is a process of working with the documentary
evidence, not one of face-to-face encounters with
individuals who may become hostile or threatening. Other
states arm their investigators and ask them to supervise
felony investigations and to make arrests because they are
dealing with hostile people on a frequent basis. The intent
of Representative Kott is that the investigators carry
firearms for self-protection rather than to make arrests.
Ms. Baily noted the provision on page 3, line 20 that adds
the words "and unreasonably" harmful. She stated that the
intent of the bill is to help the department to prosecute,
while this may have the opposite effect.
Ms. Baily referred to the bill sections pertaining to the
compromising of state-owed arrearages, stating that there is
a lot of money owed to the state and to children. The
department has worked closely with CSED on a pilot program
that would help people with a poor payment history to become
responsible and make payments to the state and to the
custodial parent. The pilot program needs extensive legal
analysis to meet constitutional safeguards, and she stated
that the current wording may have equal protection problems.
Co-Chair Williams stated that he planned to hear both the
Judiciary Committee Substitute and the Work Draft versions
of HB 514,
Representative Stoltze questioned the merits of recreational
licensing on page 2, lines 14-16. Ms. Baily was unable to
respond.
Co-Chair Harris noted on page 1, Sec. 3(d) through page 2,
(1) the aggregate amount of accrued monetary child support
arrearage totaling $10 thousand. He maintained that it is a
lot of money to be in arrears before there is an attempted
felony prosecution, and he said, two years without support
from the spouse is a very long time. He asked if the
sponsor considered making it one year, or less than $10
thousand.
Ms. Baily explained that two years is Representative Kott's
suggested timeframe. Ms. Baily acknowledged that parents
have attested it's very difficult when they're not receiving
child support.
Mr. Main stated that two years and $10 thousand mirrors the
federal child support criminal statute. The statute began
in 1992 with $5 thousand and one year of non-payments, which
was found insufficient. Co-Chair Harris asked what wasn't
sufficient. Mr. Main replied that the misdemeanors were not
being investigated. When the CSED tried to get federal
attorney to prosecute numerous cases, they were denied.
From 2002 to the present, the federal government reviewed
4600 federal cases and prosecuted 450 nationwide felonies
across state lines. Through restitution the federal
government recovered $18 million. The State of Alaska has
submitted several federal felony cases for review that
haven't yet been prosecuted.
Co-Chair Harris asked if a person would face criminal
charges if they made one payment during twenty-four months
and owed less than $10 thousand. Mr. Main explained that the
issue is inadequate investigative resources to look at all
the cases. Currently there are about 14,000 cases owing
more than $10,000 or two years in arrears, but he stressed
that it doesn't mean that everyone who owes over $10
thousand should be charged with a felony or misdemeanor.
TAPE HFC 04 - 51, Side B
Mr. Main noted that there are a number of reasons why people
cannot afford to pay and may be two years in arrears.
Co-Chair Harris asked if the CSED could foreclose on homes
or automobiles. Mr. Main affirmed that the CSED has that
authority but has chosen not to exercise it. The division
has put liens on houses and various properties. The CSED
tried to become a co-lien holder on vehicles but the
Division of Motor Vehicles (DMV) advised against it. The
State of Washington has a successful program requiring a
buyer to go through the DMV to get title whenever a car is
sold. To his knowledge, the CSED has not foreclosed on
homes, but it has gone after airplanes. Due to a manpower
shortage, the CSED has not approached seizing property from
homes.
Co-Chair Harris asked if there is a penalty against an
employer who pays "under the table" to avoid a record of
salary so the CSED or the courts cannot attach the
employee's wages. Mr. Main affirmed that there are both
civil and criminal penalties. The civil penalty applies if
the employer received a holding order or garnishment order
and failed to withhold. In those cases, the employer could
be fined the full arrears. In court, the employer could be
fined the entire $10 thousand rather than what the
individual would have been charged. The criminal penalty
involves aiding and abetting the nonpayment of child
support, currently a misdemeanor. In response to a question
by Co-Chair Harris, Mr. Main stated that charges have been
filed.
Representative Croft clarified that not paying child support
at all is currently criminal nonsupport and a misdemeanor,
but when it reaches the two-year limit, it becomes a felony.
Representative Croft asked if a violator of misdemeanor
nonsupport could lose hunting and fishing licenses. Mr.
Main affirmed that a violator could lose up to six months of
use of hunting and fishing licenses. Representative Croft
asked if this provision is a requirement of federal law.
Mr. Main responded that it is a compromise because the
federal government mandated that the state seize
recreational licenses if a person owes back child support.
The Judiciary Committee amendment extended the loss of the
hunting or fishing license until the arrears were paid, if
the person is convicted of a felony.
Representative Joule asked how many of the 14,000 cases
become felons. Mr. Main replied, between 3-6 cases per year.
Representative Joule questioned the rationale of people
losing hunting licenses in rural areas where there may not
be jobs, and where obtaining game is good for the family but
doesn't translate into a child support payment. He pointed
out that if people lost their hunting license, they would be
gathering food illegally. Mr. Main pointed to Version U,
page 4, section 8, line 18 "the court may suspend, restrict,
or revoke," and explained that it does not mean that the
court is required to do so. The court would look at the
individual's circumstances and whether the license was
needed for subsistence to feed the family.
Representative Croft stated that the law previously revoked
a hunting or fishing license for six months for nonsupport,
and asked if it would now be revoked for the duration of the
nonsupport. Mr. Main affirmed that the Judiciary Committee
had adopted that amendment.
Representative Chenault asked the meaning on page 4, line
21, "natural person." Mr. Main was unable to respond.
Co-Chair Harris asked if a person would be subject to losing
a recreational license forever if that person is currently
making payments but also has a great backlog of payments to
make up. Mr. Main replied that the court would make that
decision, with a recommendation by the Department of Law.
The language reads, "the court may suspend, restrict, or
revoke." Co-Chair Harris asked why the word "shall" was not
used.
Ms. Baily pointed out that it is a penalty for criminal
nonsupport so the license would not revoked unless the
person was actually convicted of either a misdemeanor or a
felony. It would not apply to ongoing child support
arrearages unless the person was convicted.
In response to a question by Representative Stoltze, Mr.
Main explained that a conviction would be prosecuted in the
courts.
In response to a question by Representative Foster, Mr. Main
indicated there are four CSED investigators.
CO-CHAIR Harris referred to language on page 5, line 5 and
asked if the CSED automatically would take the full
Permanent Fund dividend (PFD) if an individual were in
arrears.
JOHN MALLONEE, ACTING DIRECTOR, CHILD SUPPORT ENFORCEMENT
DIVISION, DEPARTMENT OF REVENUE explained that if the
individual has more than $50 in arrears, the division would
attach any portion up to and including the entire amount of
the PFD. If the arrears totals more than the amount of the
dividend, the entire PFD would be taken. Co-Chair Harris
asked if the dividend would be split among multiple children
with different parents. Mr. Mallonee affirmed that the
dividend would be split among them based on a portion of the
arrears.
Representative Joule asked whether an individual in arrears
who is currently raising another family could use any of the
PFD balance for the new family. Mr. Mallonee explained that
the dividend comes in primarily against the child support
arrears but any balance would go toward on-going child
support.
MELANIE MILLHORN, DIRECTOR, DIVISION OF RETIREMENT AND
BENEFITS, DEPARTMENT OF ADMINISTRATION, stated that the
division was asked to look at the legal analysis dated March
2 (copy on file), and to respond to a provision in Section
12 of the Judiciary Committee Substitute. Section 12 would
provide peace officer/firefighter retirement service after
20 years for the four CSED positions. The Mercer Actuarial
preliminary figures show an increase of 2.84% in the
employer contribution rate by the Department of Revenue for
personal services. A fiscal note will follow. The annual
cost to the department totals $6,208.
Representative Hawker questioned whether the language is
sufficient to the intent of granting investigators the
powers but not the designation of peace officers. Ms.
Millhorn commented that the legal analysis looks at the
statutory provision and the regulation for peace officers
and firefighters, and she admitted uncertainty regarding
whether the regulation could withstand challenge.
Representative Hawker argued against giving title and
authority without commensurate benefits.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW, spoke to a
minor part of the Judiciary Committee Substitute that was
removed from the new work draft. She explained that the
addition of two words, "and unreasonably," in the Judiciary
Version U, on page 3, line 20 would have made it difficult
for attorneys to prosecute people for criminal nonsupport.
Ms. Carpeneti was unsure if the sponsor realized that aiding
the obligor with nonpayment of child support would interfere
with prosecuting for nonpayment of child support. Currently
the division has to prove that there is a valid
administrative order that the person knows about, and prove
that the person intentionally withheld information or
knowingly helped to hide assets. She explained that adding
the "and unreasonably" standard would be problematic and
she doubted that it was the sponsor's intent.
Co-Chair Harris pointed out that the words, "and
unreasonably" were removed from the new work draft.
Representative Croft questioned the language on page 3, Sec.
5(A) of both versions that would make it a misdemeanor to
withhold information about an obligor. Ms. Carpeneti
explained that the division doesn't prosecute many of these
cases, and it applies to employers and second spouses.
Representative Croft suggested adding the words, "and
unreasonably," under Sec. 5(A), arguing that there could be
reasonable situations of a person not wanting to disclose
employment or residence information. Ms. Carpeneti replied
that she would be more comfortable if that language only
modified paragraph(A), but it would add an unreasonable
requirement and an additional hardship to existing law. She
would prefer that it not be included at all.
Representative Croft asked if there is a general misdemeanor
penalty if a person does not disclose information to a CSED
investigator. Ms. Carpeneti replied, not to her knowledge.
Representative Croft questioned the federal requirement to
only revoke the recreational license for a major crime and
not a misdemeanor. Ms. Carpeneti was unable to fully
respond, but commented that it is discretionary and not
mandatory.
DIANE WENDLANDT, CHIEF ASSISTANT ATTORNEY GENERAL,
DEPARTMENT OF LAW, VIA TELECONFERENCE, ANCHORAGE, explained
the federal requirement is simply that the state has
procedures allowing for the suspension of recreational
licenses. The federal government doesn't specify how that
may be done, although for all other licenses there are
general programs through the licensing agencies. A
compromise was reached, with the department agreeing to
suspend recreational licenses only in cases of civil
contempt or criminal nonsupport, which would comply with the
federal requirement.
Representative Croft asked if the state would violate the
federal requirement by suspending the license only for a
felony and not a misdemeanor. Ms. Wendlandt answered that
it is difficult to know beforehand what the federal
government will allow.
Representative Foster questioned having the CSED
plainclothes officers carrying guns in the twenty-nine
villages of his district. He recounted an instance of a
national park service employee in Hawaii who was killed with
his own gun, and expressed concern that this provision would
be asking for trouble in Western Alaska.
Mr. Main replied that the provision is intended for the
protection of the CSED investigators who don't wear
uniforms. In rural areas, the investigators would ask to be
accompanied by state troopers or Village Public Safety
Officers (VPSOs). To his knowledge, the investigators have
gone to areas by road or aircraft but not to the remote
villages.
Representative Foster questioned the fiscal note for the
training of four CSED investigators. He commented that the
VPSOs in Hooper Bay are unarmed and face greater dangers
than the child support investigators.
LT. ALLEN STORY, DIVISION OF ALASKA STATE TROOPERS,
DEPARTMENT OF PUBLIC SAFETY, VIA TELECONFERENCE, replied
that there is not a fiscal note yet. He commented that the
definitions of "peace officer" and "police officer" are used
throughout statute to empower different people in differing
circumstances. He stated that Representative Foster is
correct that police officers would have to be certified by
the Alaska Police Standards Council. The costs for
attending the Public Safety Academy are $7100 per
participant, and another $2700 for an array of firearms and
use of force equipment.
Representative Foster asked if this is the same argument as
the ABC Board wanting to arm their agents. Mr. Story replied
that it is not the intent of the current administration to
arm the ABC agents.
Mr. Main stated that the Child Support Enforcement Division
wrote up a fiscal note regarding the training of the
investigators, not the Department of Public Safety.
Ms. Baily clarified that the new numbers for training will
be incorporated into a new fiscal note that the department
will provide soon.
Representative Chenault reiterated his question of the
meaning of the language "natural person" that appears on
page 4, lines 21 and 28 of Judiciary Version U.
Ms. Carpeneti replied that it means a human being and
clarified that there are entities including corporations and
partnerships. Representative Chenault doubted that
corporations would be issued a recreational license. Ms.
Carpeneti stated that this is existing law, and a defendant
could be a corporation aiding and abetting failure to pay
child support. Representative Chenault argued that this
deals with revoking recreational licenses.
PETER ECKLUND, STAFF TO REPRESENTATIVE WILLIAMS, explained
the changes in the Work Draft 23-S1639\V by first pointing
out the language deleted from Judiciary Version U. The
words "and unreasonably" were deleted from page 3, line 20.
All of Sec. 12 (f)(1) and (2) has been deleted from page 5,
line 16, which had designated the investigators as peace
officers and allowed them to carry firearms. The work draft
also deletes Sec. 12(g) through (i) which was the arrearages
section allowing the department to negotiate forgiveness of
child support arrearages.
Mr. Ecklund explained that the work draft adds a Pilot
Program for Child Support Arrearages on page 7, line 10. He
noted that if the committee accepts the work draft and the
pilot program language, the date that the pilot program
would report to the legislature and the Governor should be
changed. He suggested changing page 7, line 15, from October
1, 2005 to February 1, 2005.
Co-Chair Williams asked if the department supports the
changes. Ms. Baily replied that the Department of Revenue
supports the changes in the proposed committee substitute,
especially the removal of language giving firearm
authorization to CSED investigators, and the inclusion of
the pilot program and provision to report back to the
legislature.
In response to a question by Representative Chenault, Ms.
Baily replied that the fiscal note would change. She
offered that some of the changes in the committee substitute
might help allay concerns expressed by the Division of Risk
Management and the Tort and Workers' Compensation Section in
the Department of Law. She expected a revised fiscal note
soon.
Representative Hawker asked the sponsor's perspective on the
changes.
TAPE HFC 04 - 52, Side A
In response to a question by Representative Foster, Ms.
Baily described the pilot program formulated by the CSED and
the Department of Revenue. The program would help people
who are not presently paying child support to secure
training for employment and reduce the need for state
assistance. It would also address arrearages in payment to
custodial parent. She stated that Ms. Wendlandt has worked
with the department and outlined concerns regarding the
pilot program in the Department of Law memorandum dated
March 5, 2004 (copy on file.) The program must meet
constitutional safeguards.
In response to a question by Co-Chair Harris, Co-Chair
Williams stated that he would wait to hear from the bill
sponsor before adopting the proposed committee substitute.
Mr. Main pointed out that the sponsor has not seen the
committee substitute.
Co-Chair Harris requested a revised fiscal note based on the
new version.
Representative Stoltze asked for guidance in whether the
committee would adopt the work draft Version V, or the
Judiciary Committee Substitute. Co-Chair Williams clarified
that he was asked by the administration to draft a committee
substitute, but it is up to the committee which bill it
supports.
HB 514 was heard and HELD in Committee for further
consideration.
The committee took a brief At Ease.
| Document Name | Date/Time | Subjects |
|---|