Legislature(2017 - 2018)GRUENBERG 120

03/09/2018 01:00 PM JUDICIARY

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as
Download Video part 1. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HJR 29 REAUTHORIZE SECURE RURAL SCHOOLS ACT TELECONFERENCED
Moved CSHJR 29(STA) Out of Committee
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 219 CRIM HIST CHECK: ST EMPLOYEES/CONTRACTORS TELECONFERENCED
Moved CSHB 219(JUD) Out of Committee
        HB 219-CRIM HIST CHECK: ST EMPLOYEES/CONTRACTORS                                                                    
                                                                                                                                
1:22:02 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that the  final order of business would be                                                               
HOUSE BILL NO. 219, "An  Act relating to background investigation                                                               
requirements for state employees  whose job duties require access                                                               
to  certain federal  tax information;  relating to  persons under                                                               
contract  with  the state  with  access  to certain  federal  tax                                                               
information;  establishing  state personnel  procedures  required                                                               
for  employee  access to  certain  federal  tax information;  and                                                               
providing for an effective date."                                                                                               
                                                                                                                                
1:23:02 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  moved to adopt Amendment  1, labeled 30-GH1938\A.2,                                                               
Martin, 3/7/18, which read as follows:                                                                                          
                                                                                                                                
     Page 4, line 24:                                                                                                           
          Delete "2017"                                                                                                         
          Insert "2018"                                                                                                         
                                                                                                                                
REPRESENTATIVE STUTES objected for discussion.                                                                                  
                                                                                                                                
1:23:09 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN explained  that Amendment  1 changes  the effective                                                               
date from 2017 to 2018.                                                                                                         
                                                                                                                                
REPRESENTATIVE  STUTES withdrew  her objection.   There  being no                                                               
objection, Amendment 1 was adopted.                                                                                             
                                                                                                                                
1:23:40 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN noted  that Representative  Eastman  was no  longer                                                               
present and therefore he would not be offering an amendment.                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN  related that  he  was  now speaking  via                                                               
teleconference.                                                                                                                 
                                                                                                                                
CHAIR  CLAMAN informed  Representative  Eastman that  he was  not                                                               
excused from the Call of  the House of Representatives today, and                                                               
he  was present  in  the  room at  the  start  of this  committee                                                               
meeting,  and he  did  not have  an  excused absence;  therefore,                                                               
Representative  Eastman   would  not  be  allowed   to  offer  an                                                               
amendment.                                                                                                                      
                                                                                                                                
1:25:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE REINBOLD  moved to adopt Amendment  2, labeled 30-                                                               
GH1938\A.7, Martin, 3/8/18, which read as follows:                                                                              
                                                                                                                                
     Page 1, line 2, following "information;":                                                                                
          Insert "relating to polygraph examinations of                                                                       
     persons   with   access    to   certain   federal   tax                                                                  
     information;"                                                                                                            
                                                                                                                                
     Page 2, following line 8:                                                                                                  
     Insert a new bill section to read:                                                                                         
        "* Sec. 2. AS 23.10.037(b) is amended to read:                                                                      
          (b)  The provisions of (a) of this section do not                                                                     
     apply to  the state or  a political subdivision  of the                                                                    
     state when  dealing with police officers  in its employ                                                                    
     or  with  persons applying  to  be  employed as  police                                                                    
     officers or  with contractors or employees  who require                                                                
     access  to federal  tax information  under AS 36.30.960                                                                
     or AS 39.55.015. In this subsection,                                                                                   
               (1)  "contractor" has the meaning given in                                                                   
     AS 36.30.960;                                                                                                          
               (2)  "employee" has the meaning given in                                                                     
     AS 39.55.015;                                                                                                          
               (3)  "police officers" includes officers and                                                                 
     employees  of  the  Department  of  Transportation  and                                                                    
     Public   Facilities    who   are   stationed    at   an                                                                    
     international airport and have  been designated to have                                                                    
     the    general   police    powers   authorized    under                                                                    
     AS 02.15.230(a)."                                                                                                          
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 2, following line 27:                                                                                                 
     Insert a new subsection to read:                                                                                           
          "(d)  A current or prospective contractor whose                                                                       
     contract with the state requires  access to federal tax                                                                    
     information for  purposes of the contract  shall submit                                                                    
     to and  pass a  polygraph examination  before accessing                                                                    
     any federal tax information."                                                                                              
                                                                                                                                
     Reletter the following subsection accordingly.                                                                             
                                                                                                                                
     Page 4, following line 7:                                                                                                  
     Insert a new subsection to read:                                                                                           
          "(e)  A current or prospective employee whose job                                                                     
     duties require access to  federal tax information shall                                                                    
     submit  to  and  pass a  polygraph  examination  before                                                                    
     accessing any federal tax information."                                                                                    
                                                                                                                                
     Reletter the following subsection accordingly.                                                                             
                                                                                                                                
REPRESENTATIVE STUTES objected.                                                                                                 
                                                                                                                                
1:25:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  REINBOLD explained  that Amendment  2 requires  a                                                               
person to  pass a polygraph  test before the  [subject] employees                                                               
are allowed to access confidential data.                                                                                        
                                                                                                                                
CHAIR  CLAMAN  noted that  his  office  had  made an  inquiry  to                                                               
Legislative  Legal   and  Research   Services,  and   it  appears                                                               
Amendment  2  would  run  in  conflict  to  AS  23.10.037,  which                                                               
prohibits  requiring  lie  detector   tests  as  a  condition  of                                                               
employment, with  the only exception  being for  police officers.                                                               
He asked how she makes Amendment 2 square up with AS 23.10.037.                                                                 
                                                                                                                                
REPRESENTATIVE REINBOLD  responded that  Alaska wants  the people                                                               
with  access to  this  data to  be  honest, and  it  should be  a                                                               
minimum  requirement  if  they   are  accessing  personal  highly                                                               
confidential information.  In this  instance, those people should                                                               
be required to take a lie detector test.                                                                                        
                                                                                                                                
1:27:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  commented that  people, in  this instance,                                                               
should  be held  to high  standards.   Except,  she pointed  out,                                                               
there is no  consensus that polygraph evidence  is good evidence,                                                               
which  is  the   reason  polygraph  tests  are   not  allowed  as                                                               
conditions of employment.  She  further commented that people who                                                               
are psychopaths can easily pass polygraph tests.                                                                                
                                                                                                                                
REPRESENTATIVE  REINBOLD responded  that  these  people are  just                                                               
passing  a test  to have  access to  this confidential  data, the                                                               
polygraph  tests are  a measure  of honesty,  and hopefully,  the                                                               
state  will not  hire psychopaths  to get  into this  data.   She                                                               
noted that  300 state employees  have access to  this information                                                               
and it  is her belief the  state needs to ensure  a high standard                                                               
to reduce the risk and liability to the state.                                                                                  
                                                                                                                                
1:29:18 PM                                                                                                                    
                                                                                                                                
A roll  call vote  was taken.   Representative Reinbold  voted in                                                               
favor of  the adoption of  Amendment 2.   Representatives Kreiss-                                                               
Tomkins,  Kopp,  Stutes, LeDoux,  and  Claman  voted against  it.                                                               
Therefore, Amendment 2 failed by a vote of 1-5.                                                                                 
                                                                                                                                
1:29:51 PM                                                                                                                    
                                                                                                                                
[CHAIR   CLAMAN  and   Representative   Reinbold  discussed   the                                                               
amendment process.]                                                                                                             
                                                                                                                                
1:31:33 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX referred  to  the 3/8/18  letter from  Don                                                               
Habeger, Juneau  Reentry Coalition, directed to  the Alaska House                                                               
Judiciary  Committee,  and  related   that  she  would  like  the                                                               
opportunity to hear from Mr. Habeger.                                                                                           
                                                                                                                                
1:32:39 PM                                                                                                                    
                                                                                                                                
DON  HABEGER, Community  Coordinator,  Juneau Reentry  Coalition,                                                               
offered   that  finding   reasonable  ways   to  improve   (audio                                                               
difficulties)  that are  successfully reentering  their community                                                               
and putting  a history  of criminality  behind them  is something                                                               
the  Juneau Reentry  Coalition is  interested in  as it  looks to                                                               
overcome their barriers.  He said  the title of HB 219 caught his                                                               
attention and as he read  the legislation and read the Department                                                               
of  Revenue's  (DOR)  protocols for  the  hiring  process,  there                                                               
appears to  be a  possible way  for someone  who is  overcoming a                                                               
history of  crime to enter  into the  field.  However,  he noted,                                                               
when he read the background  investigation for contractors, there                                                               
is  a  clear  door  that  a  person  must  "submit  and  pass"  a                                                               
background  check.     Except,  he  pointed  out,   there  is  no                                                               
definition  as to  what "pass  a background  check" means,  as he                                                               
could  not  find  it  in  AS 12.62,  or  the  public  accountancy                                                               
statutes.   He  said that  it  raised enough  of a  flag that  he                                                               
thought he  would bring  the issue before  this committee  to see                                                               
whether the  members agree,  and if  there is  a solid  door that                                                               
someone  who  is  successful  cannot  get past.    He  asked  the                                                               
committee to at least consider that and somehow open the door.                                                                  
                                                                                                                                
1:34:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  surmised that when working  for the state,                                                               
there are specific  criteria for a person to fail  this test, but                                                               
if they are working as a contractor  it is just pass or fail, and                                                               
no one has defined "pass."                                                                                                      
                                                                                                                                
MR.  HABEGER answered  that that  is  the way  he reads  it.   He                                                               
reiterated that  "you posted on  the website their  policy" which                                                               
stated that  if there  are recent crimes  at various  levels, for                                                               
instance,  "one-to-five years  you have  a misdemeanor,  then you                                                               
are not eligible to have  employment in these particular fields."                                                               
In  the event  it is  a felony,  it might  have been  10-15 years                                                               
"whatever that was."  At least  there is a pathway, there is also                                                               
an  element of  protection  due  to the  sensitivity  of the  job                                                               
class.   However, he said,  the way  he reads this,  "it's submit                                                               
and pass."   For example,  if he received a  significant contract                                                               
with DOR  or Department of  Labor & Workforce  Development (DLWD)                                                               
and he had an employee who had  worked for him four years but did                                                               
not pass,  he would have  to let the  employee go because  he did                                                               
not have any  other work for his employee.   That is his concern,                                                               
he related.                                                                                                                     
                                                                                                                                
1:37:10 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN queried David Spanos,  DOR, in addressing this issue                                                               
about the  language "submit  to and pass,"  there was  a previous                                                               
discussion  regarding a  conviction  of dishonesty,  and this  is                                                               
specifically  the people  who would  have access  to federal  tax                                                               
information.  He said that he  understood "submit to and pass" to                                                               
mean the person  did not have the types  of convictions involving                                                               
dishonesty which would be a reason  they could not have access to                                                               
the information.   The word  "pass," although it is  not defined,                                                               
in its  practical application  "is in  that way."   He  asked Mr.                                                               
Spanos  to   describe  what  it   means  to  pass   a  background                                                               
investigation.                                                                                                                  
                                                                                                                                
1:37:59 PM                                                                                                                    
                                                                                                                                
DAVID  SPANOS,  Deputy  Director,  Tax  Division,  Department  of                                                               
Revenue, said he agreed  that (audio difficulties) interpretation                                                               
that  "pass "our  criminal background  investigation."   The  Tax                                                               
Division currently has contractors who  submit the same forms the                                                               
division's employees  submit to the Criminal  Investigation Unit.                                                               
That unit  runs the background check  and "we are the  ones" that                                                               
determine whether  the person passed.   He noted, "We  don't have                                                               
the employer" run  a background check or pay someone  else to run                                                               
the  background check,  "we run  it ourselves  and we  follow the                                                               
same policy."                                                                                                                   
                                                                                                                                
1:38:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  surmised that the process  makes a certain                                                               
degree of sense.   Although, she noted, she was  unsure there was                                                               
anything in  the statutes that  mandates it be performed  in that                                                               
manner.   She  asked whether  the process  and the  definition of                                                               
"pass" should be specified in a bit more detail.                                                                                
                                                                                                                                
MR. SPANOS  replied (audio difficulty)  how the  division handles                                                               
the background checks could be changed.   He stressed that HB 219                                                               
is  asking  for  fingerprinting   authority  to  run  a  national                                                               
background check.   The  division follows  its current  policy to                                                               
run  local background  checks,  which  includes local  background                                                               
checks for  any state employees  (audio difficulties)  within the                                                               
past  ten years,  and that  could be  changed.   He said  that he                                                               
would not  be opposed  to (audio difficulties)  but he  can't say                                                               
why (audio difficulties).                                                                                                       
                                                                                                                                
1:40:43 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  commented that  in  the  event the  statute  read,                                                               
"shall submit  to a background investigation,"  simply submitting                                                               
to the background  investigation does not convey  the notion that                                                               
certain individuals, based  on their history, that  should not be                                                               
given  access to  the information.   With  regard to  convictions                                                               
involving dishonesty,  there may be  a period wherein  people are                                                               
willing to say that enough time  had passed and the person should                                                               
be cleared.   The concept of "passing" is  pretty well understood                                                               
to mean  "not only do you  submit to it,  but you look to  see if                                                               
that criminal history  is important for purposes of  what you are                                                               
gaining  access  to.    And,  that  is  what  is  being  done  in                                                               
regulations."    Which, he  commented,  appears  to be  a  pretty                                                               
sensible way  to approach the issue.   He noted that  people talk                                                               
about passing background investigations all  of the time and what                                                               
they are  looking for,  depending on  the circumstances,  is what                                                               
are the  background investigations  that would preclude  a person                                                               
from employment.   In the  same sense,  background investigations                                                               
are  performed on  people working  with students  in the  schools                                                               
because the  state does not want  people with a history  of child                                                               
molestation to have access to students,  he said.  Except, in the                                                               
statute there is  not a long list of every  single conviction the                                                               
person has to clear to be able to  go back and teach school.  The                                                               
state basically  wants the background  investigation in  order to                                                               
be confident the person actually  passed, whatever that may mean.                                                               
He said that he tends to  believe that if this were challenged, a                                                               
court would  not have a lot  of confusion about what  it means to                                                               
pass a  background investigation.   Police officers  are required                                                               
to  undergo background  investigations  before  being hired,  but                                                               
there is not  a long list of  which crimes are the  basis for not                                                               
hiring.   He described  the question raised  as a  good question,                                                               
and noted that the contractors,  who are not state employees, are                                                               
treated in  the same manner  as the state treats  state employees                                                               
in terms of who gains access to the confidential information.                                                                   
                                                                                                                                
CHAIR  CLAMAN  asked Representative  LeDoux  if  that answer  was                                                               
satisfactory.                                                                                                                   
                                                                                                                                
REPRESENTATIVE LEDOUX said "I think so."                                                                                        
                                                                                                                                
1:43:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  REINBOLD   offered  concern  about   this  bill's                                                               
process,  Legislative  Legal  and   Research  Services,  and  her                                                               
amendments.   She related  that her  four amendments  were deemed                                                               
late  and not  allowed,  which  were as  follows:  the person  or                                                               
corporation  suffering   any  serious  violation  or   breach  of                                                               
authorized access data to be  notified within 72-hours; that this                                                               
legislation  could not  be  a  pathway, in  any  manner, to  help                                                               
establish (audio  difficulties) with  an income tax;  people "who                                                               
are over" the authorization of  data had to have careful measures                                                               
and good monitoring logs with  swift discipline for any breach of                                                               
authorized  data;  and in  the  event  of  a gross  violation  of                                                               
unauthorized  data  that  the  violation   be  forwarded  to  law                                                               
enforcement.  She  opined that this is  incredibly sensitive data                                                               
subject  to abuse  and the  state  wants the  highest quality  of                                                               
honest people with a rigid monitoring  system.  She said that she                                                               
will be "an absolute  no on this" due to her  belief she had been                                                               
obstructed  in her  ability to  amend this  legislation.   In the                                                               
event HB  219 does not  pass, "then all  is we are  not federally                                                               
compliant," and  it appears that "a  lot of you guys"  want to be                                                               
federally compliant in every area  except marijuana and she feels                                                               
like it is hypocrisy.                                                                                                           
                                                                                                                                
1:46:42 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP offered  that he supports the  bill, and that                                                               
Mr.  Habeger brought  up some  good comments  and thoughts.   For                                                               
example, he  related, possibly  a college  student had  moved his                                                               
professor's car  as a  prank and gets  tagged with  some offense,                                                               
then  15-years down  the road  the offense  still shows  up as  a                                                               
disqualifier.   He opined that that  is a situation to  which Mr.                                                               
Habeger was  referring, but  he was unsure  whether this  was the                                                               
right time to address the  issue, but the principle of background                                                               
checks is excellent.  Mr. Spanos  testified that a log is kept as                                                               
to  each  time federal  tax  information  is accessed,  and  that                                                               
violations  of  the  protocol  were  misdemeanors  subject  to  a                                                               
criminal charge  and termination  of employment.   He  noted that                                                               
the  committee had  previously discussed  the issue  of requiring                                                               
any employee to  submit to a polygraph test was  against the law,                                                               
with the exception of police  officers.  He offered surprise that                                                               
an amendment  was introduced requiring  that a polygraph  test be                                                               
administered for  purposes of employment and  remarked that there                                                               
would be quite a debate just  in updating that law all by itself.                                                               
Anyone   accessing  federal   tax  information   should  have   a                                                               
background  check  and  he opined  that  every  committee  member                                                               
agrees, and he fully supports HB 219.                                                                                           
                                                                                                                                
1:48:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KREISS-TOMKINS moved  to report  HB 219,  Version                                                               
30-GH1938\A,  as  amended,  out   of  committee  with  individual                                                               
recommendations and the accompanying fiscal notes.                                                                              
                                                                                                                                
1:48:39 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE REINBOLD, via teleconference, objected.                                                                          
                                                                                                                                
1:48:40 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN explained that according  to the rules, an objection                                                               
stated by  Representative Reinbold  via teleconference  could not                                                               
be considered on a motion to move a bill out of committee.                                                                      
                                                                                                                                
1:48:57 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced that there being no objection, CSHB
219(JUD) was reported from the House Judiciary Standing                                                                         
Committee.                                                                                                                      

Document Name Date/Time Subjects
HJR29 ver D 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Sponsor Statement 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Explanation of Changes 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Supporting Document-Grants to Boroughs FY15 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Supporting Document-SRS Payments FY16 & FY17 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Supporting Document- H.R. 2430 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Supporting Document-Congress H.R. 2340 Co-Sponsors 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Supporting Document-Congress S. 1027 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Supporting Document-Congress S. 1027 Co-Sponsors 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Supporting Document-Letters & Resolutions of Support 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Supporting Document-Public Comment 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HJR29 Fiscal Note LEG-SESS 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HJR 29
HB219 ver A 3.7.18.PDF HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Transmittal Letter 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Sectional Analysis 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Supporting Document-IRS Publication 1075 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Additional Document-DOR Information Security Management Policy 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Additional Document-Juneau Reentry Program Letter - Amend 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Amendments #1-3 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Fiscal Note DHSS-ASS 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Fiscal Note DPS-CJISP 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Fiscal Note DOLWD-UI 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Fiscal Note DOR-TAX 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Fiscal Note DOR-CSSD 3.7.18.pdf HJUD 3/7/2018 1:00:00 PM
HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Fiscal Note DOC-DAS 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HB 219
HB219 Amendments #1-3 HJUD Final Votes 3.9.18.pdf HJUD 3/9/2018 1:00:00 PM
HB 219