Legislature(2005 - 2006)HOUSE FINANCE 519
03/07/2006 09:00 AM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB324 | |
| HB399 | |
| HB400 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 399 | TELECONFERENCED | |
| + | HB 400 | TELECONFERENCED | |
| += | HB 485 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 324 | TELECONFERENCED | |
HOUSE FINANCE COMMITTEE
March 7, 2006
9:15 A.M.
CALL TO ORDER
Co-Chair Meyer called the House Finance Committee meeting to
order at 9:15:57 AM
MEMBERS PRESENT
Representative Mike Chenault, Co-Chair
Representative Kevin Meyer, Co-Chair
Representative Bill Stoltze, Vice-Chair
Representative Richard Foster
Representative Mike Hawker
Representative Jim Holm
Representative Reggie Joule
Representative Mike Kelly
Representative Beth Kerttula
Representative Bruce Weyhrauch
MEMBERS ABSENT
Representative Carl Moses
ALSO PRESENT
Representative Gabrielle LeDoux; Representative John
Coghill; Sue Wright, Staff, Representative Mike Chenault;
Lalanya Snyder, Staff, Representative Mike Chenault; Josh
Fink, Director, Office of Public Advocacy, Department of
Administration; Suzanne Cunningham, Staff, Representative
Kevin Meyer; Dean Guanelli, Chief Assistant Attorney,
Department of Law
PRESENT VIA TELECONFERENCE
Dan McDowell, Self, Mat-Su; Ed Sniffen, Jr., Assistant
Attorney General, Department of Law, Anchorage; Brian Judy,
National Rifle Association (NRA) Representative for Alaska,
Anchorage
SUMMARY
HB 324 An Act banning the importation, transfer, and
cultivation of orange hawkweed and purple
loosestrife.
CS HB 324 (RES) was reported out of Committee with
a "no recommendation" and with zero note #1 by the
Department of Natural Resources.
HB 399 An Act establishing the office of elder fraud and
assistance; and relating to fraud involving older
Alaskans.
HB 399 was HEARD & HELD in Committee for further
consideration.
HB 400 An Act relating to disasters and confiscation of
firearms.
CS HB 400 (FIN) was reported out of Committee with
a "do pass" recommendation and with zero note #1
by the Department of Military & Veterans Affairs.
HOUSE BILL NO. 324
An Act banning the importation, transfer, and
cultivation of orange hawkweed and purple loosestrife.
9:16:02 AM
Vice Chair Stoltze MOVED to REPORT HB 324 out of Committee
with individual recommendations and with the accompanying
fiscal note. Representative Holm OBJECTED.
He stated he had done research on invasive species from
other states. In the State of Oregon, a green state, there
is a list of over 100 species & aurantiacum is not listed.
Some states have an Invasion Species Council, with
authorization to identify and quarantine various species;
enforcement is generally the weakest link in the process.
Oregon relies heavily on voluntary compliance. They do not
make it a jailed situation or impose fines. He argued that
HB 324 will be bad policy for the State of Alaska.
Representative Holm WITHDREW his OBJECTION.
Representative Kelly OBJECTED. He asked if regulation
versus law had been discussed. Co-Chair Meyer said it could
be addressed either way and left it up to the sponsor.
Representative LeDoux preferred it move through as
legislation.
Representative Kelly WITHDREW his OBJECTION.
Representative Hawker OBJECTED. He questioned if the State
should impose by statute, a decision upon a department. He
said the legislation could take the State in a "bad
direction" of public policy, imposing political decisions.
Representative Hawker WITHDREW his OBJECTION. There being
NO further OBJECTION, it was so ordered.
CS HB 324 (RES) was reported out of Committee with a "no
recommendation" and with zero note #1 by the Department of
Natural Resources.
AT EASE: 9:16:30 AM
RECONVENE:9:16:41 AM
HOUSE BILL NO. 399
An Act establishing the office of elder fraud and
assistance; and relating to fraud involving older
Alaskans.
Co-Chair Chenault MOVED to ADOPT work draft #24-LS1517\F,
Mischel, 3/06/06, as the version of the bill before the
Committee. There being NO OBJECTION, it was adopted.
9:22:57 AM
SUE WRIGHT, STAFF, REPRESENTATIVE MIKE CHENAULT, spoke to a
desperate situation currently existing in Kenai for the
McDowell family. The situation contains an egregious act of
fraud to the elderly from a distant family relative. She
urged that member's give attention to testimony from Don
McDowell.
Ms. Wright informed members that the Office of Public
Advocacy director, Josh Fink, rose to the occasion and
offered assistance to the family.
9:25:32 AM
LALANYA SNYDER, STAFF, REPRESENTATIVE MIKE CHENAULT,
addressed an article included in the member's packets, which
sheds light on the growing crisis of elder financial fraud.
Ms. Snyder explained that financial abuse takes many forms,
including credit card fraud, real estate scams, identity
theft and burglary. Reports of elder financial exploitation
are on the rise. Forty percent of all reported elder abuse
cases involve financial exploitation, yet only a small
number are reported. A study conducted by The National
Center on Elder Abuse (NCEA) found that for every reported
case of elder abuse, another five cases went unchecked.
Ms. Snyder stated that effective State responses to
financial exploitation require collaboration by a range of
State and local agencies, including law enforcement, adult
protective services, victim service agencies and private
partners. Coordination remains a major challenge. Lack of
interagency coordination means that victims remain hidden.
HB 399 helps to ensure the necessary coordination between
agencies to address the problem. Establishing an Office of
Elder Fraud and Assistance would provide elderly Alaskans
the appropriate protection they deserve.
9:25:45 AM
JOSH FINK, DIRECTOR, OFFICE OF PUBLIC ADVOCACY (OPA),
DEPARTMENT OF AMINISTRATION, applauded the sponsor for
addressing the situation endangering elder Alaskans. There
is currently no agency authorized to actively pursue civil
remedies on behave of the exploited person. The lead agency
processing and investigating the reports of those crimes is
Adult Protective Services; they do not have the statutory
authority to sue on behalf of any individual. They can stop
the exploitation by filing a petition with the court. They
have no ability to recoup losses.
According to the director of Adult Protective Services, in
fiscal year 2005, there were 500 cases of financial abuse.
Each year, there is a significant increase in the number of
cases; of those cases, approximately 90% have been verified.
When Adult Protection Services gets a case, they attempt to
"shop" it around to the other agencies such as Alaska Legal
Services or anyone who will take it. The legislation would
empower the Office of Public Advocacy to provide that
service for anyone over 60 years old. It would provide
pursuit for those not otherwise able to bring a complaint
without assistance and the legislation would be defined in
regulation. The legislation will require OPA to work with
local, state, national law enforcement and social service
agencies to determine cooperative agreements.
Mr. Fink stated that the legislation provides recouping of
costs if it does not create a financial hardship for those
represented. He did not think they would collect fees.
These cases are complex and are becoming a growing problem
within Alaska.
Mr. Fink pointed out the conservative fiscal note. He had
attempted to determine the national standard, but came to
find none. It appears one attorney could handle about 65
cases a year; the note requests three.
Co-Chair Meyer voiced concern with the note. He requested
that Co-Chair Chenault, Representative Hawker and Mr. Fink
work to address associated costs.
9:34:32 AM
Representative Holm asked if there could be unintended
consequences resulting from collecting fees from the
perpetrator that extorted the client.
Representative Holm pointed out no note from the Public
Defender's Agency; he asked if it would be forthcoming.
9:36:04 AM
Mr. Fink did not anticipate a note from that Office. Most
cases are generally not prosecuted, as it does not create a
new crime. It is not intended to ask fees from anyone
experiencing financial hardship. He imagined that generally
no fees would be paid.
9:36:21 AM
Representative Kelly echoed concern with the fiscal note.
He worried about adding a category, which indicates anyone
over 60 as vulnerable and unable to think for themselves.
He disagreed with that assessment. He voiced concern with
the switch from civil to criminal penalties and that passage
of the bill would cause unintended consequences.
9:41:02 AM
Mr. Fink shared those concerns. He did not want to set up
an office and find it overwhelmed. Adult Protective
Services currently has 5 investigators. There are sidebars
in place, which require that a person be over 60 years old.
He hoped to reach an agreement making Adult Protective
Services the "gatekeeper" for referrals.
Representative Kelly reiterated his concerns, warning that
passage of the bill could become a "nightmare".
9:43:02 AM
Representative Hawker commented on further defining the data
point of the "60 years of age or older". He asked how that
number was determined. That language could carve out a new
social service agency.
Mr. Fink acknowledged it was a public policy question
regarding where to cut off. Adult Protective Services
recommended using language rather than 60, a "vulnerable
adult", as defined in statute.
9:45:27 AM
Ms. Snyder interjected that many other statutes use "60
years" in regulation. "Vulnerable adult" as discussed,
could begin at 18 years. She offered to double check that
information and come back with age specific numbers. Mr.
Fink pointed out that Adult Protective Services had 500
reports of exploitation and of those 65% were over 60 years
old.
Representative Hawker asked what made a person excluded less
vulnerable. Mr. Fink responded it was an added sidebar to
limit the scope of services.
9:46:57 AM
DAN MCDOWELL, (TESTIFIED VIA TELECONFERENCE), MAT-SU,
thanked Co-Chair Chenault's office for all their work on the
bill, noting he is a lifetime Alaskan.
Mr. McDowell explained that his father has had Alzheimer's
for seven years. A distant relative from Colorado came to
Alaska to assist the family. That caregiver had his mother
sign quick claim deeds to the family trust and over a period
of several months, he assumed all the family's property and
money. The relative handed his parents an eviction notice
and tied up all their money. He has now leased their
property and taken all the money the senior couple had
saved.
He stated that HB 399 addresses concerns for all seniors in
Alaska. Mr. McDowell urged that the bill pass to help
protect each of us. The Federal Bureau of Investigation
(FBI) assumed that his parent's case was a civil case. Mr.
McDowell agreed that it is, but he thought it should be
tried as a criminal case of fraud. He stressed the number
of the many vulnerable Alaskans and pleaded that the
legislation pass from Committee.
9:53:27 AM
Representative Hawker asked about creating of an Office of
Elder Fraud. He asked if the intent was to go after someone
that legally committed a criminal activity. Mr. Fink
replied that was an intended subset and that the fraud is
criminal. He agreed one should have to prove elements
beyond a reasonable doubt.
9:55:27 AM
Representative Hawker noted it could be both civil and
criminal. He asked if the criminal level had been
contemplated in the fiscal note. He wondered if there were
existing resources to pursue the issue. Mr. Fink hoped that
if an office was established, there would be an agreement
with the Department of Law for making referrals for
prosecution. The problem is that it is not presently being
pursued by the law enforcement agencies.
Representative Hawker referenced Section 2, Page 3, asking
about cost recovery. Mr. Fink pointed out the amendment,
indicating three court rules, providing for recovery of
Court fees. The Legislature should not tinker with those
court rules to craft something to recoup actual costs.
Representative Holm asked if the McDowell case rose to a
criminal level. Mr. Fink thought it should be classified
criminal fraud.
Representative Holm voiced concern. He advised that
"individuals" remedy civil cases. If it were a case
affecting all society, it would be criminal. He did not
think the State should make policy decisions regarding
individual's dealings with one another. He maintained that
having State government involved was bad policy.
10:00:47 AM
Mr. Fink assumed that Adult Protective Services would make
that determination. He referenced the McDowell case, in
which the wife had never been involved in the family's
finances and then was signing all their financial documents.
He believed it was different than "buyer's remorse".
Representative Holm countered that it would raise criminal
fraud.
Mr. Fink stated that fraud is difficult to prove criminally;
these are rare analogies. If there were an analogy with a
different set of evidence and proof, it would not mean it
could not be pursued civilly.
Representative Kelly asked how many states have the proposed
law. Mr. Fink responded that he had not contacted all the
states; however, in Cook County, Illinois, there are 100
attorneys in their fraud unit. There was no state exactly
the same as proposed in the legislation; it mostly resembles
mixtures and/or combinations of the proposed.
10:03:37 AM
Representative Kelly thought it would be better legislation
if the judgment took a one third of the recovery. Mr. Fink
agreed that could be a legitimate way to go.
ED SNIFFEN, JR., (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, spoke to
some possible unintended consequences. The Department of
Law does have the jurisdiction to pursue cases of fraud
against the elderly and do so often. Those resources are
limited and it is impossible to act as everyone's individual
lawyer. The Department focuses their efforts on fraud that
impacts the greater public interest.
The statutes contain a provision, which prevents exercising
jurisdiction over cases that are regulated by another
agency. Mr. Sniffen clarified that if the legislation moves
forward, there would need to be a provision in the bill that
does not exempt their office from prosecuting fraud. He
recommended there be a provision that provides that the
Office of OPA proceed with the investigation.
Mr. Sniffen addressed the line drawn at 60 years of age and
mentioned equal protection concerns with that language. Age
discrimination is forbidden by the constitution. He
recommended using "vulnerable" adults and offered to answer
questions of the Committee.
Co-Chair Chenault asked what would stop the Department of
Law from making charges in the McDowell case. Mr. Sniffen
responded that resources are a major consideration to the
Department in pursuing that case. He understood that it
involved exploitation to an individual with Alzheimers. If
it something unique and particular to an individual, the
Department would most likely not be too interested. The
Office consists of three attorneys and is in charge of all
consumer protection in the State of Alaska. The office is
restricted to focusing efforts on broader scope issues.
Co-Chair Chenault voiced concern that the Department does
not look at all cases. He acknowledged funding concerns.
He noted that the McDowell case affects their entire life.
He realized that it is the job of a private attorney;
however, most attorneys would not be willing to take the
case without proof of finances.
10:11:37 AM
Mr. Sniffen agreed; he wished that their Division had the
resources necessary to pursue more cases on behalf of
individual consumers. He reiterated that it is a funding
issue. He acknowledged that should not detract from the
seriousness of the issue.
10:12:58 AM
Co-Chair Meyer noted that Representative Kelly would join
the group of Representative Hawker, Co-Chair Chenault and
Mr. Fink to discuss the legislation.
Co-Chair Meyer MOVED to ADOPT Conceptual Amendment #1.
(Copy on File). Vice Chair Stoltze OBJECTED.
SUZANNE CUNNINGHAM, STAFF, REPRESENTATIVE KEVIN MEYER, spoke
to the amendment. She corrected wording of the amendment
indicating that it had been written to the \F version, so
the line indications would change to Lines 5-6 from 4-5.
Co-Chair Meyer MOVED the proposed change. There being NO
OBJECTION to that change, it was adopted and Amendment #1
was amended.
Ms. Cunningham discussed the amendment, Subsection (B)
regarding theft and related offenses. In reviewing statute,
it was noted that the reference was too broad. Speaking
with Alaska Legal Services, it was determined to be limited
to those crimes that specifically address potential for
fraud or deceit.
10:15:48 AM
Representative Kerttula understood the need to bring "it
down"; she asked what offenses had been dropped. Ms.
Cunningham stated that criminal simulation and defrauding
creditors had not been listed and should have been.
Co-Chair Meyer recommended holding the amendments and have
the sponsor consider them when discussing the fiscal costs.
Co-Chair Meyer WITHDRW his MOTION to MOVE amended Amendment
#1. There being NO OBJECTION, the amendment was WITHDRAWN.
Representative Kelly inquired if providing half the
requested fiscal cost, could some cases be addressed. He
mentioned states using a "criminal arm" and asked if the
bill could address that.
10:19:37 AM
Representative Weyhrauch observed on Page 4, Line 8,
"significant" should be deleted.
Co-Chair Meyer stated that HB 399 would be HELD in Committee
for further consideration.
10:20:47 AM
HOUSE BILL NO. 400
An Act relating to disasters and confiscation of
firearms.
Vice Chair Stoltze MOVED to ADOPT work draft #24-LS1543\L,
Luckhaupt, 3/01/06, as the version of the bill before the
Committee. There being NO OBJECTION, it was adopted.
10:21:27 AM
REPRESENTATIVE JOHN COGHILL, SPONSOR, spoke to the bill. He
commented that HB 400 addresses the right of people to keep
and bear arms to insure the security of a free state. He
noted the chaos following Hurricane Katrina, where various
government agencies made systematic attempts to sweep New
Orleans clean of guns, even if it meant entering the homes
of law abiding gun owners.
Representative Coghill stated that National Guard, federal,
state, or local law enforcement personnel should not be
allowed to confiscate lawfully owned and lawfully carried
firearms. HB 400 would make it a Class A felony for any
person to knowingly confiscate, attempt to confiscate, or
order the confiscation of a firearm during a disaster
emergency. The bill would insure that the government not do
this during a time when those citizens may need their
firearms the most.
10:25:51 AM
Co-Chair Meyer pointed out the zero note accompanying the
bill.
Co-Chair Chenault asked about inclusion of the language: "A
person would forfeits any office of governmental position",
and asked if that was legal. Representative Coghill replied
that was the intent, however, at this point, it would be a
civil action. He understood there was an amendment, making
it a criminal action.
Representative Coghill advised that he concurred with both
the attached amendments.
10:28:18 AM
BRIAN JUDY, (TESTIFIED VIA TELECONFERENCE), NATIONAL RIFLE
ASSOCIATION (NRA) REPRESENTATIVE FOR ALASKA, ANCHORAGE,
testified in support of HB 400. He echoed concerns voiced
by Representative Coghill regarding what had happened in New
Orleans.
The bill would clarify that during a state of disaster,
lawfully owned firearms could not be seized from law-abiding
citizens. Additionally, it would make accountable, any
person knowingly confiscating firearms. He urged support
for the bill.
Representative Hawker MOVED to ADOPT Conceptual Amendment
#1. (Copy on File). Co-Chair Meyer OBJECTED.
Representative Hawker spoke to the grammatical change made
by the amendment. Co-Chair Meyer WITHDREW his OBJECTION.
There being NO further OBJECTION, Amendment #1 was adopted.
10:31:27 AM
Representative Hawker MOVED to ADOPT Conceptual Amendment
#2. (Copy on File). Co-Chair Meyer OBJECTED.
Representative Hawker explained the proposed change. Page
1, Line 7-10, the amendment deletes all material and would
insert Section 26.23.205, regarding confiscation of
firearms. That section provides for due process to be
exercised if the person was convicted, their office would be
forfeited. The amendment would raise the bar from simple
presumption and would require the burden of proof of a
criminal standard.
10:35:51 AM
Vice Chair Stoltze acknowledged the tough standard of
conviction. Representative Hawker referenced the original
version, which forfeited anything without regard to the
contractual contract. He did not know how it could
presently interface. He speculated that there is a
provision, if convicted, there would be consequences. The
amendment provides the form to properly address the
consequence. He spoke to automatic forfeiture.
10:37:36 AM
Representative Hawker mentioned his uncomfortableness with
the motion.
Representative Holm asked about language in Amendment #2,
Line 7, "the color of law" and that affect.
DEAN GUANELLI, CHIEF ASSISTANT ATTORNEY, CRIMINAL DIVISION,
DEPARTMENT OF LAW, pointed out that was a "term of art" and
exists in the federal civil rights law and a couple other
places in Alaska Statute. It reflects that the person doing
the act was under the cover of some lawful authority.
Representative Holm asked if it meant under the umbrella of
their position. Mr. Guanelli replied that it means that
they profess to have lawful authority.
Representative Kerttula mentioned the example of the
National Guard; they would be protected because they are
under orders. Mr. Guanelli responded that the question
would be if that person believed that it truly was a lawful
order. It would be no different than if a superior officer
orders someone to assault a person. The people must decide
for themselves whether to obey.
Representative Kerttula asked when it would be lawful to
confiscate guns. Mr. Guanelli said if a crime is being
committed, then it is lawful. Each circumstance must be
weighed separately.
10:44:56 AM
Representative Kelly wondered if the language "disaster
emergency" should be "disaster" or "emergency". Mr.
Guanelli opined that was correct. He further clarified that
the governor declares a disaster-emergency.
Representative Hawker emphasized that this is a very
sensitive issue. The amendment is intended to address a
disaster emergency situation resulting in looting. An
officer may need to secure firearms to protect citizens and
would not have to forfeit his/her job until having gone
through a court procedure. It would be a way to protect
officers acting in good faith.
Co-Chair Meyer asked Mr. Guanelli for an opinion on the
amendment. Mr. Guanelli replied that he was comfortable
with it.
10:49:32 AM
Representative Coghill commented that his intent was to
guarantee a law-abiding citizen their right to bear arms.
Co-Chair Meyer WITHDREW his OBJECTION. There being NO
further OBJECTION, Amendment #2 was adopted.
10:50:11 AM
Representative Hawker pointed out that the Department of Law
does not anticipate increased prosecutions due to the
passage of HB 400.
Representative Hawker MOVED to REPORT CS HB 400 (FIN) out of
Committee with individual recommendations and with the
accompanying zero note. There being NO OBJECTION, it was so
ordered.
CS HB 400 (FIN) was reported out of Committee with a "do
pass" recommendation and with zero note #1 by the Department
of Military & Veterans Affairs.
ADJOURNMENT
The meeting was adjourned at 10:51:53 AM.
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