Legislature(1997 - 1998)
02/09/1998 01:08 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 267 - DOMESTIC VIOL. & SEXUAL ASSAULT DISCLOSURE TAPE 98-14, SIDE A Number 0006 CHAIRMAN GREEN announced the next item of business would be HB 267, "An Act relating to domestic violence and sexual assault; and providing for an effective date." The bill had been heard by the committee on February 2, 1998. Number 0054 REPRESENTATIVE PORTER advised members that his staff had done some research, as did Legislative Legal Services personnel. He said they had found a provision that answers the question of whether federal funding in this area is in jeopardy. Referring to a memorandum dated 2/9/98 from the Alaska Network on Domestic Violence and Sexual Assault, he then commented that the network had done the same research and came up with the same conclusion. He said that "actually in the federal register, there is specific language that says that the confidentiality requirements should not be interpreted to mean to interfere with a legitimate law enforcement and specifically mentions missing persons, that they should respond that a missing person is safe within the confines ... of the facility." REPRESENTATIVE PORTER stated, "I don't want to testify for them. I don't know if you all got a copy of their position on it, but their position basically is that this is unnecessary, since it would be redundant to that. I guess my response to that would be, 'I don't think so.' They thought that it would jeopardize, up until this issue brought it up for them to look. And how many other folks out there are under the same opinion? Notwithstanding the fact that they would put out a newsletter, next week we'll have a new person in some shelter that will have the same problem." REPRESENTATIVE PORTER continued, "I would rather that this permissive - not required - language be in state law, so that somebody doesn't have to go to the bother of -- some folks don't even know what a federal register is. It just seems to me that putting in law something that is law in the federal law, and makes it only provide that it may be done, so that you don't think that it can't be done, is certainly not stepping into the concerns that we've heard expressed. So, ... that's my little pitch." Number 0257 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, apologized for not being present the previous week because of a prior commitment. She then stated, "It is true what you found under the VOCA, Victims of Crime Act, that although we do have to abide by the federal confidentiality guidelines, they do not intend for that to preclude a domestic violence or sexual assault program telling law enforcement whether or not someone is in fact a missing person, if they have that information." MS. ANDREEN continued, "However, we also receive the Family Violence Prevention and Service Act funds, under which we are also required to provide confidentiality." Ms. Andreen said this past week they contacted the grant administrator in Washington, D.C., to ask how this would play out with a missing person situation. She stated, "And their response back to us - which we don't have in writing, which we can get in writing - was that ... that must be determined by each and every program. So, to have this law would, it appears, violate one of the requirements that we have under the Family Violence Prevention and Service Act, which is another federal funding source, under the Department of Health and Human Services." REPRESENTATIVE NORMAN ROKEBERG responded, "But that's not what you just said, though. Each program determines it? Excuse me, Mr. Chairman, but ...." Number 0363 BRUCE CAMPBELL, Legislative Assistant to Representative Pete Kelly, Alaska State Legislature, spoke on behalf of the sponsor. He asked, "But the question I had, if I may ask Jayne this, is the possibility of this communication which this bill provides for, is that prohibited under this? And would the regulatory powers of your ability - of the council, as directed on page 2 of the bill - would that not be able to take that into account and deal with that ... in state regulation? ... Or does the question to the ... group you asked in Washington, D.C., was that question if we required communication, when, in fact, we're not requiring it, we're just providing for the option of communication? We're not requiring this communication. We're not requiring anyone [to] violate federal law. We're not requiring anyone to do that. We are asking that this not be a violation of state law, and we're saying that under this paragraph, regulations should be adopted to carry this out. And that certainly would allow the commission to deal with it under -- and recognize federal law." Number 0458 MS. ANDREEN responded, "First of all, I want to say that the council's current regulations do cite the privileged communications statute. We require all of our grantees to abide by it. So, Section 1 basically of this I don't believe is needed, because I don't see that there would be a change. The change is incorporated in the statute. That would just be rolled into the existing regulation that we have; if there is a change in the statute, then the programs need to abide by that." MS. ANDREEN continued, "As far as the second part of the question, 'Would the way it's written as "may" circumvent the federal?' ... And unfortunately, I was not the person who talked ... to Bill Riley in Washington, D.C.; our project coordinator, Sandy Stone, did. And she said that his response to her was: This would most likely be a circumvention of their intention ... under the federal guidelines." Number 0553 REPRESENTATIVE BERKOWITZ asked whether they were talking about the "may" on page 3, line 27. MS. ANDREEN said yes. REPRESENTATIVE BERKOWITZ said he wasn't sure he should point this out, because he wasn't particularly supportive of the bill. He then stated, "But that says the victim counselor may communicate. It's not mandatory. It's permissive, which is gutless, if you ask me. There's no point in doing this legislation. Is that correct?" Number 0580 REPRESENTATIVE PORTER asked, "I thought I understood you to say that ... their position would be that that would be a decision that would have to be made at the program level?" MS. ANDREEN replied, "Correct. At the local program -- each domestic violence and sexual assault program." REPRESENTATIVE PORTER responded, "That's what we're saying." REPRESENTATIVE ROKEBERG commented, "We are the local program." REPRESENTATIVE PORTER asked, "So, what is the problem? I guess I'm missing something." REPRESENTATIVE CROFT said, "I'm missing something, too. The local program level is different from us." Number 0619 REPRESENTATIVE ROKEBERG indicated if a state law mandates and doesn't take that into consideration, then the local program has to consider it; they have to speak to it in regulation. He indicated he believes that is what the bill sponsor is saying. Number 0630 REPRESENTATIVE PORTER stated his understanding that the intent of this legislation is to tell local programs that they may release information to a law enforcement agency that they know the person is not missing and is safe, and that is all. And the reason for the bill is that there is confusion as to whether shelters may or may not do that. REPRESENTATIVE PORTER said, "And what I'm hearing you say is that first of all, the other -- the other one is overcome; they don't lose the DV [domestic violence] money. There's some other fund that I'm not even aware of, but now I think you're saying that they think this is a problem unless the program has the ability to make that decision themselves, which is precisely what the bill does. So, what's the problem?" Number 0690 REPRESENTATIVE BERKOWITZ asked the reason for this legislation, since it says "may." He suggested it becomes a symbolic question. He stated his belief that everyone present supports both good law enforcement and domestic violence shelters. He stated, "So, we've got a collision. And we've got to figure out which symbolism we're choosing, because this bill has no effect on the ground - none whatsoever - the way I read it." CHAIRMAN GREEN said, "Other than permitting it to be done." Number 0743 MR. CAMPBELL explained that they would not have drafted this bill except that they were told repeatedly that the principle and prima facie reason for not communicating with law enforcement was not because shelters didn't want to, or not because there were problems, but because it was illegal and a violation of state law. MR. CAMPBELL stated, "So, we said, 'We've read the state law. Our attorneys read the state law, and they said, "We don't think so, but if it's a problem, we'll clarify it."'" Mr. Campbell said it is a very fine point, and it has been crafted to provide the maximum flexibility. He stated, "It does not say you have to provide communication to the law enforcement official who calls you, because that, we learned last week, ... may not be appropriate. ... And it does not say, 'You shall provide communication.' It says, 'You may,' and we're encouraging ... the council to set up regulations to provide some statewide conformance with it, I guess." Number 0806 REPRESENTATIVE CROFT proposed a scenario where the legislature passes this and the WIC-CA shelter [Women in Crisis-Counseling and Assistance, Fairbanks] in two years agrees they have the authority but choose to not use it. He asked whether that is the solution they are after. Number 0820 MR. CAMPBELL replied that they may have a good reason for not telling, which may be as simple as a personality conflict. He said if that personality conflict is real, that is something they don't think is appropriate to force in state legislation; therefore, they did not use the word "shall." He suggested the legislature cannot be aware of all the incidents and all the complexities of shelter workers' responses. Number 0849 REPRESENTATIVE ROKEBERG expressed confusion about whether there are two federal laws that conflict. CHAIRMAN GREEN asked Ms. Andreen whether that is what she is saying. Number 0877 MS. ANDREEN replied, "The VOCA guidelines clearly state that we must guarantee client confidentiality for the clients. However, they note, as an exception in their federal guidelines, that it's not intended to override or supersede state law, such as reporting child abuse, or in such instances where - and they specifically talk about a missing person - where law enforcement wants to know, 'Is the person missing or not?' So, those are like two exceptions that they have built in, under their explanation of the federal guideline." Number 0904 CHAIRMAN GREEN suggested that if state law said it was a requirement, that would indicate that they would not be in conflict. MS. ANDREEN replied, "Not under the VOCA, Victims of Crime Act, which is under the Department of Justice. The conflict comes with the Family Violence Prevention and Service Act, which is under the Department of Health and Human Services." Number 0930 MR. CAMPBELL commented that he would have agreed with Representative Berkowitz prior to 20 minutes ago. He then stated, "But now that there is something else that clearly needs to be dealt with in detail by regulation, and where the regulation needs to be complied with. It makes it more important to have this laid out ... so that the council does in fact go through the regulatory process under state law and make those one consistent statewide package, so ... the various shelters ... have a sense of what they're supposed to do, and so there isn't this conflict between two very important entities, the state troopers and (indisc.)." Number 0958 REPRESENTATIVE BUNDE said if he understood the VOCA explanation correctly, the exception is for the missing person, if there is a state law. He stated, "And perhaps we'd need the law for no other reason than to say, 'We do have a statute that says you will say yes or no ... to the missing person question,' because if we don't have a statute ..., then VOCA says they don't have to report it because it's not conflicting with the state law." Number 0997 REPRESENTATIVE CROFT asked Mr. Campbell, "I guess what I'm hearing you saying is this part on ... page 3 is not as important anymore as the regulatory authority. What you want to see, that the 'may' may codify just what they could do anyway, but the regulations are what now the sponsor sees -- and if that's the truth, ... the regulations couldn't go any broader than the statutory authority we have. We're not going to say 'shall' in the regulations where we say 'may.' We're not going to say, 'You must do "X," "Y" and "Z."' Right?" Number 1049 REPRESENTATIVE PORTER said, "Just to respond to Representative Bunde's concern, I think it -- it said it didn't -- it certainly would not preclude following a reporting requirement that a state law, as ours does have for child abuse -- but then, it didn't say that the missing person had to be a state law addressing missing persons or reporting that; it just said a missing person report." REPRESENTATIVE CROFT asked, "Can I read that? Because I think like everyone, I'm getting more and more confused. [He read from an unspecified document.] 'Furthermore, this confidentiality provision should not be interpreted to thwart the legitimate informational needs (indisc.). For example, this provision does not prohibit a domestic violence shelter from acknowledging, in response to inquiry by a law enforcement agency conducting a missing person investigation, that the person is safe in the shelter' - or safe anywhere, I guess. It does not prohibit, but this statute does prohibit it, or it says the privilege generally applies and has no exception for it. So, you can have a federal law that does not prohibit it but does not mandate it and a state law that prohibits it. This doesn't have the text of the statute, it just has the ...." REPRESENTATIVE PORTER commented that a state law can be more restrictive than a federal law but cannot conflict with it. REPRESENTATIVE CROFT asked whether that is what they have here or not. REPRESENTATIVE JAMES suggested it is more restrictive. Number 1126 REPRESENTATIVE PORTER stated, "What this provision is trying to do is to point out that there isn't anything in anybody's law that prohibits this, and that you may do it. It isn't trying to tell them to do it. I think it's probably implying that you should, without good cause, but it is not saying you will do this. It is saying there aren't any laws that say you may not." He indicated that in talking to the sponsor and reading the bill, he believes that is the only intent. CHAIRMAN GREEN asked whether Ms. Hugonin could clarify this. Number 1166 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault, came forward. She stated, "And in our memo that we submitted, what I was trying to say is that I agree with the Representative that the VOCA regulations do provide for that possibility, and that we still think [that] without a statutory change, the shelters and programs in the state are willing to hear that and respond appropriately. So, it's our intention to work with everybody to develop a comprehensive, consistent policy and to make sure that people understand that they have the ability to make that disclosure, if in fact that's going to be part of their policy." MS. HUGONIN continued, "So, we are going to send out a legal memo. We are going to try to work with the state subcommittee on law enforcement that's developing model protocols and ask that a missing persons protocol be developed for local programs to look at and to adapt for their use. And I don't think we're disagreeing with you about the intent and how to carry it out. What we're saying is we still think it does not have to go toward a statutory change." She said they understand that a clarification needs to be made, they are willing to make that clarification, and they are willing to try to help people continue to work it out locally. MS. HUGONIN reminded members that this is not a widespread problem or one that happens daily with missing persons. She stated, "This was a very specific problem that happened in Fairbanks recently, and that happened several years ago in Juneau. And so, we are trying ... to address it." Number 1262 REPRESENTATIVE BERKOWITZ asked whether Ms. Hugonin is going to write a letter to all the domestic violence shelters in Alaska, saying essentially that under current law, a victim counselor may communicate to law officials. MS. HUGONIN replied that that is what they are going to say, that VOCA requirements provide for an exception in responding in a missing persons situation. Number 1289 REPRESENTATIVE BERKOWITZ asked for confirmation that Ms. Hugonin is not opposed to the language of this legislation but just the concept of legislating something of this nature. MS. HUGONIN replied, "Exactly." [Representative Kelly, sponsor, arrived.] Number 1314 REPRESENTATIVE BERKOWITZ advised Representative Kelly that Ms. Hugonin had just informed the committee she will write a letter to all the domestic violence shelters in the state, telling them the effective language on page 3 of the bill, "a victim counselor may communicate to the law enforcement official." Representative Berkowitz said Ms. Hugonin's problem with the bill is she doesn't think it should be in statute, because it is already resolved, it is already part of the law. He asked whether that would suffice. Number 1340 REPRESENTATIVE PETE KELLY, sponsor of HB 267, replied that he thinks the statutes were vague, which created the original problem. He stated, "Now we're led to believe that all of a sudden the same attempts that have been going on before, to make it across the board, to all the shelters operating across the board the same way, will all of a sudden work. I don't think it will. I think we need the statute. I think we need ... the regulatory portion of the bill as well, so that the council can write the regulations to be consistent with ... the federal regulations. And I think it is very necessary to do the statutes. The statutes do no harm as they are, because all they are asking the shelters to do are what shelters are already doing throughout the state, with the exception of a few of them. But they can do some good, because they will clarify the issue. And I think we've seen from the federal register that they will do no harm, because that is already ... the case in regulation." Number 1401 REPRESENTATIVE BUNDE said he would have to excuse himself to attend another meeting. He then likened the bill to chicken soup, agreeing with the sponsor that it couldn't hurt. Number 1427 REPRESENTATIVE CROFT asked Ms. Hugonin, "If you're going to send a letter saying we may, and we should all figure out what our protocols are, how can you do that without this provision in there? I mean, don't you have to say in your letter, 'Under federal law we may, but under state law we can't, and now let's figure out protocols'? And how would one do that?" MS. HUGONIN said that is a good question. REPRESENTATIVE CROFT asked whether it would help to take one of the other exceptions out. Number 1456 MS. HUGONIN asked, "So, is it your understanding that without this in here, the state law prohibits someone from disclosing that information?" REPRESENTATIVE CROFT said he thinks it is a privilege, with limited exceptions. Without permission of the person who owns the privilege, they can only do the exceptions, which are listed as (1) through (8). He suggested that without exception (9) [page 3, lines 25 through 30 of the bill], which says "may," Ms. Hugonin cannot write that letter. If he were counsel advising Ms. Hugonin, he would tell her the letter should say that "under federal law you can, under state law you cannot; therefore, really, the conclusion is ... you cannot tell any law enforcement agency without their permission." CHAIRMAN GREEN added, "Without adopting (9)." Number 1499 REPRESENTATIVE PORTER commented, "Logistically, that might be a real problem. You may want to do that, but you can't get a hold of them, because you know they might be in Kentucky with their sister and you just can't get a hold of them for that permission, and this search could go on for weeks, and ...." MS. HUGONIN said, "But, of course, then we wouldn't know that they were not missing, ... if they were in Kentucky." REPRESENTATIVE PORTER said under state law, they may not be able to say that, without this provision in law. Number 1523 MS. HUGONIN responded, "Oh, I see what you're saying. Well, I certainly understand that it looks like the bill is going to be passed out of this committee. I would ask that on page 2, line 25, that AS 18.66.210, we add the number (9) there, because what you're asking for is for a specific clarification on the confidentiality, and not on the other eight exceptions." MS. HUGONIN advised members she had previously spoken to the sponsor about her concern with the title. She asked that consideration also be given to tightening the title. Number 1563 REPRESENTATIVE CROFT said he had talked with the sponsor and had drawn up an amendment to make the title as tight as possible. He noted although his written amendment said "client," that is not a term of art; he suggested using "victim" or "person" instead, whichever the council or the sponsor prefers. CHAIRMAN GREEN supported the use of "person." REPRESENTATIVE KELLY said he had no objection to the title change. REPRESENTATIVE CROFT made a motion to adopt Amendment 1, using the word "person." Amendment 1, changing the title, now read: Page 1, line 1, following "to": Insert "the duties of the Council on Domestic Violence and Sexual Assault; allowing domestic violence and sexual assault counselors to reveal to public safety officers whether a person is missing or not missing" Number 1640 CHAIRMAN GREEN asked whether there was an objection to Amendment 1. There being no objection, Amendment 1 was adopted. Number 1653 REPRESENTATIVE CROFT made a motion to adopt Amendment 2, "to make on page 2, line 25, it be subsection (9)." He explained that there are some other exceptions that are problematic or that at least would take a lot of discussion. He stated, "The 'excited utterance' one was one that leaps out; I understand there's a weird history to it. But you wouldn't want to require regulations on all of these exceptions." He specified, "I'm adding (9) in parentheses after 210 and before the semicolon." Number 1681 REPRESENTATIVE JAMES objected for the purpose of discussion. She asked the reason for the objection to (1) through (8). She asked whether Representative Croft was saying some of those are not valid. She further asked, "Are they sufficient on their face to not have regulations implementing how they would be addressed?" Number 1703 REPRESENTATIVE CROFT stated his understanding that this is an exception to the privilege, so it is now in the area of discretion. He stated, "What the regulations say, it must require a victim counselor to divulge information under this. So, ... we're taking a step from 'can do the privilege' into 'must.'" He then expressed uncertainty about that. REPRESENTATIVE JAMES said it is to the extent allowed, which she thinks is pretty clear. REPRESENTATIVE ROKEBERG asked for confirmation that it says to draft regulations on (9), but not on the rest of them. Number 1734 REPRESENTATIVE BERKOWITZ said it is to limit the amount of regulations that need to be drafted. REPRESENTATIVE JAMES again asked whether they are saying that there already are sufficient regulations for (1) through (8). Number 1746 MS. ANDREEN advised members that the council's regulations currently cover all of AS 18.66.210. She stated, "It doesn't delineate (1) through (8); it covers all of the exceptions under the privileged communications, which is why I said earlier I don't think that this section is even needed. If (9), (10) and (11) are added on, they will be covered by [the] council's regulations ...." Number 1767 REPRESENTATIVE CROFT asked whether this changes "may" to "shall." MS. ANDREEN said that would be her concern. REPRESENTATIVE CROFT read from the new language on page 3, beginning at line 23, which says regulations adopted under this paragraph must require a victim counselor employed by a grantee to divulge information to the extent allowed under AS 18.66.210. REPRESENTATIVE JAMES said "allowed" is "may." MS. HUGONIN responded, "Only on number (9)." Number 1788 MS. HUGONIN advised members, "My concern, and the reason why I asked for that, is because these are also testimonial privileges. It's not just, for example, to report child abuse to DFYS [Division of Family and Youth Services] or to law enforcement. It's privileges that have to do with requiring victim counselors to testify in court. And I think that it's an area of law - although I'm not a lawyer, so I apologize for not being able to present the argument as articulately - but I think that's an area that is outside of the scope of regulation (indisc.--papers rustling) more difficult to interpret through regulation. There are instances when these exceptions come forward, and a defense attorney would try to subpoena records. And what happens is that there is a motion entered on behalf of the victim or a victim counselor to quash that subpoena, and the judge makes an in camera decision about whether or not one of the exceptions actually does apply. So, I think ... it's a different area than what you're interested in establishing in number (9)." Number 1833 REPRESENTATIVE ROKEBERG said he would like to move this bill. He suggested that leaving (9) in there, which is specific to the new addition, is appropriate. He also suggested if there is a problem later, it could be taken care of. Number 1851 REPRESENTATIVE KELLY stated, "I think we could take care of it easily right now if we changed 'must require' to 'must allow' and leave it 18.66.210. Forget (9). She's already writing regulations on ... (1) through (8), and she said if you added 15 more, she'd have the authority to do that under this. But if it's 'must allow,' ... there is no danger of it changing the 'may' to a 'shall.'" REPRESENTATIVE CROFT agreed. REPRESENTATIVE PORTER said he likes it. It makes it permissive and is a nice, neutral statement. Number 1884 CHAIRMAN GREEN noted that with the amendment to Amendment 2, it would now change "require" to "allow" [page 2, line 23] and not add "(9)" to line 25. REPRESENTATIVE CROFT accepted that as a friendly amendment. REPRESENTATIVE JAMES removed her objection. CHAIRMAN GREEN asked whether there was a further objection. Hearing none, he announced that Amendment 2 was adopted. Number 1898 REPRESENTATIVE ROKEBERG made a motion to move HB 267, as amended, from committee with individual recommendations. He added that there was no fiscal note. Number 1914 REPRESENTATIVE BERKOWITZ objected. He explained that they were passing legislation through the committee that already exists and is therefore sort of frivolous. In addition, it symbolically puts domestic violence (DV) shelters in a position where the expectation of protection is lower than it is at an individual's residence or in a place other than a DV shelter, which he believes is symbolically the wrong step to take. Number 1940 CHAIRMAN GREEN requested a roll call vote. Voting to move HB 267, as amended, from committee were Representatives Croft, James, Porter, Rokeberg and Green. Voting against it was Representative Berkowitz. Representative Bunde was absent. Therefore, CSHB 267(JUD) moved from the House Judiciary Standing Committee by a vote of 5-1.
| Document Name | Date/Time | Subjects |
|---|