Legislature(1997 - 1998)

03/11/1998 08:25 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
     CS FOR SENATE BILL NO. 254(JUD)                                           
     "An   Act  relating   to  the   exemption  from   levy,                   
     execution,  garnishment,  attachment, or  other  remedy                   
     for the  collection of debt  as applied to  a permanent                   
     fund dividend."                                                           
                                                                               
                                                                               
MIKE  PAULEY,   staff  to  Senator  Leman,   addressed  this                   
legislation.  His testimony was as follows:                                    
                                                                               
"This  bill  would  significantly  enhance  the  ability  of                   
Alaskan  businesses and  other  private  parties to  collect                   
from  debtors  who  are  in  a state  of  default  in  their                   
financial  obligations.   Existing state  law provides  that                   
45% of  a person's annual  Permanent Fund Dividend  check is                   
exempt  from collection  to  pay an  outstanding  debt.   In                   
other  words,  even  though  a   person  may  have  a  court                   
judgement  stipulating that  they  owe a  certain amount  of                   
money, almost  half of their  dividend check is  exempt from                   
collection at  least when its  a private party  that seeking                   
to  collect the  debt.   There are  some exceptions  to this                   
general rule.  Child  support obligations, defaulted student                   
loans  and any  debts  to an  agency of  the  state are  not                   
covered by the 45% exemption.   So on those cases; the state                   
can garnish  100% of  a dividend check  in order  to satisfy                   
its financial  obligation.  But  small businesses  and other                   
private parties  do not enjoy  that ability to  collect 100%                   
of the check."                                                                 
                                                                               
"When businesses  are not able  to collect funds  from those                   
in  default,  it  increases  the  cost  of  doing  business.                   
Ironically, those  costs are passed  on to  honest consumers                   
in the form of higher costs  for goods and services.  So, in                   
a very  real sense,  the majority  of Alaskan  consumers are                   
paying  for  the  financial   irresponsibility  of  a  small                   
minority."                                                                     
                                                                               
"As  originally introduced,  SB 254  proposed to  completely                   
eliminate  the  45%  exemption.     However,  and  amendment                   
adopted in committee, restored the  exemption but lowered it                   
from  the  current  45%  to   30%.    This  means  that  the                   
percentage  of  a  dividend  available  for  garnishment  by                   
private parties would  increase from 55% to 70%  as the bill                   
currently stands.  State agencies  would continue to collect                   
at a rate of 100%."                                                            
                                                                               
As currently  structured, SB  254 significantly  narrows the                   
gap between what  private parties and the State  are able to                   
collect."                                                                      
                                                                               
That concluded Mr. Pauley's prepared statement.                                
                                                                               
Senator  Donley   agreed  that   while  he  felt   the  100%                   
garnishment  would work  because people  would not  have the                   
incentive to actually  file for their PFD, he  did think the                   
higher percentage  was appropriate here.   He said  he would                   
like to  see it  around 25%  or less  so people  would still                   
have the  incentive to  file, but  still benefit  anyone who                   
went through the effort to get a court judgement.                              
                                                                               
Co-Chair  Sharp's comment  was that  he wanted  to keep  the                   
incentive  and  leave  enough  to   pay  the  taxes  on  the                   
dividend.  There was  further discussion  by Co-Chair  Sharp                   
and  Senator Donley  about  the taxes  and  the efforts  the                   
debtor makes in obtaining a judgement.                                         
                                                                               
Co-Chair  Sharp   requested  the   sponsor's  view   of  the                   
Judiciary version.   Mr.  Pauley qualified  that he  must be                   
careful in  speaking his  office's opinion.   The  Labor and                   
Commerce Committee,  who he was here  representing, voted to                   
restore, but  lower, the exemption, which  the original bill                   
eliminated.  Therefore, he felt he could not comment.                          
                                                                               
Co-Chair Sharp  noted the L&C  version added a  fee schedule                   
based  on five-percent  of the  dividend  rather that  five-                   
percent of the  amount collected.  Mr.  Pauley explained the                   
L&C change from  imposing a $2 fee to a  fee of five-percent                   
of  the total  value  of  the PFD.    This  was because  the                   
existing $2  fee was not  covering the  division's expenses.                   
The  Judiciary  committee then  voted  to  remove the  five-                   
percent  fee,  which  eliminated  the  actions  of  the  L&C                   
Committee.     He  recalled  the  Permanent   Fund  Division                   
testified that they were opposed to the five-percent fee.                      
                                                                               
Co-Chair Sharp noted that the  division had a representative                   
present   at  this   meeting  to   answer  questions.     He                   
anticipated the committee would have a few questions.                          
                                                                               
Senator  Torgerson  was  under the  impression  that  court-                   
ordered  restitution  was  already  at 100%.    He  gave  an                   
example:   "If  I did  a small  claims action,  and took  it                   
through the court  process, and the case was  found in favor                   
of my claim,  I would now have a court  order for re-payment                   
of  that amount  of money  as long  as it  was under  $5000.                   
What you're saying  is that under current law,  I could only                   
collect 55% of  that even though it was  under court order?"                   
Apparently, he said, he had  a different explanation of what                   
court-ordered restitution means.                                               
                                                                               
Mr. Pauley  shared that to  his understanding  that language                   
did  not apply  to  private  debtors.   He  spoke  of a  car                   
dealership with a customer who  defaulted on their car loan.                   
Even if the  dealership had the court  statement saying they                   
were entitled  to that  money, that  didn't entitle  them to                   
100% of the PFD.                                                               
                                                                               
Senator Donley interjected;  pointing out that "restitution"                   
usually applied  to criminal situations.   Senator Torgerson                   
said  he  thought  part  of   this  legislation  dealt  with                   
criminal actions.   Senator Donley  explained how  the court                   
usually assigns  restitution to be  paid by the  criminal to                   
the victim of the crime.                                                       
                                                                               
Senator  Torgerson asked  what  form  the garnishment  would                   
come to  the PFD.  Did  the collection agency submit  a copy                   
of the  credit card statement  showing the balance  owed and                   
substantial documentation,  or was a court  order necessary,                   
he asked.   Mr.  Pauley told  him there  was a  process that                   
must  be  followed.  He  deferred  to  NANCY  JONES  of  the                   
division who had more knowledge of the mechanics.                              
                                                                               
Co-Chair Sharp called Ms. Jones  to come to the committee to                   
testify.  She started  by answering Senator Torgerson's last                   
question.   The court must  certify all claims,  she stated.                   
The  division would  not  accept any  private  claims.   The                   
garnishment request would come to  PFD through a court order                   
that states this was a legal dept.                                             
                                                                               
Co-Chair Sharp restated the  earlier question concerning the                   
$2 fee  and whether  that was  adequate to  cover processing                   
costs.   Ms.  Jones told  of the  division's the  collection                   
staff, which  also does data  processing.  April 1  would be                   
the first  time they  would be accepting  any claims.   They                   
would accept claims from April  1 through the payment period                   
in October.   Of a staff of four, one  person worked 100% on                   
processing these  claims.  Other staff  worked varying parts                   
of the process.  Including  data entry time and computer use                   
charges,  the total  cost  of processing  the  claims was  a                   
little more that $154,000.   The $2 fee adequately reflected                   
the  cost,  summarized  Ms.  Jones.   She  spoke  about  the                   
allocation  of   those  funds  by  the   Legislature,  which                   
required the charges be collected  before the money could be                   
spent.    Therefore,  she  said, if  the  division  did  not                   
receive the  anticipated number  of collections,  they could                   
not spend the $154,000  operating appropriation.  Because of                   
this, they had kept the projections conservative.                              
                                                                               
Co-Chair Sharp asked about the  record of federal government                   
agencies,  namely the  Internal Revenue  Service, as  far as                   
paying  the  processing fee.    He  wanted  to know  if  the                   
division had  gotten any static  from the IRS  attempting to                   
have the  fees waived.   Ms. Jones  recounted that  prior to                   
her tenure  with the division,  there had been  some battles                   
fought over  this matter.  The  IRS did not allow  any other                   
institutions to  collect a processing fee  before dispersing                   
funds.   They had come to  an agreement that said  if at any                   
time the  IRS could collect up  to $21 million from  the PFD                   
fund, they shouldn't  quibble about the meager $2  fee.  She                   
said  the  division  was  working   together  with  the  IRS                   
regional directors.                                                            
                                                                               
Senator Donley  wanted to know  if the $2 fee  was currently                   
set in  statutes.   Ms. Jones responded,  no.   The statutes                   
just provided  the authority  for the  division to  charge a                   
fee.  The amount was set in regulation.                                        
                                                                               
Senator Phillips and Ms. Jones  had further discussion about                   
the  fee  and  whether  it  was  adequate  at  covering  the                   
processing costs.                                                              
                                                                               
Senator  Torgerson  asked  to  make it  clear  that  if  the                   
department's  costs  started  to   exceed  that,  which  was                   
covered by  the $2, that the  fees would be increased.   Ms.                   
Jones  assured  him  that when  the  overhead  exceeded  the                   
collected amount the fees would be  raises.  She said it was                   
difficult to  breakdown and to  determine the exact  cost to                   
process each claim.   Senator Torgerson said  he just wanted                   
reassurance that the  division had the ability  to raise the                   
fee if needed to cover the costs.                                              
                                                                               
Co-Chair  Sharp  brought  up  the  issue  of  the  different                   
versions  of the  bill and  asked the  committee which  they                   
would like to address.                                                         
                                                                               
Senator Donley  suggested the simplest bill  version to work                   
from  would  be  the  Judiciary  version.    Co-Chair  Sharp                   
agreed.                                                                        
                                                                               
Senator Donley considered changing the  current 30% to 20 or                   
25%.    Senator  Adams  responded  by  asking  how  low  the                   
percentage  retained  could  drop  and  still  maintain  the                   
incentive for  the individual to  file.  He wondered  if the                   
current  30% was  determined  to be  that  amount.   Senator                   
Donley spoke to the logic of  a desire to pay off one's dept                   
to be the incentive needed.   He felt that if the court told                   
an  individual they  owed a  debt,  they ought  to have  the                   
moral fortitude  to pay off  that debt.   By using  the PFD,                   
they are  getting the advantage  of having the  dividend pay                   
toward that  debt.   He acknowledged  there should  remain a                   
percentage to allow the incentive to file.                                     
                                                                               
Senator Donley  made a motion to  change Page 1 Line  5 from                   
30%  to  20%.     Co-Chair  Sharp  objected  for  discussion                   
purposes.   Senator  Phillips wanted  to know  the sponsor's                   
opinion on the amendment.                                                      
                                                                               
Mr. Pauley  spoke saying they  had heard an  enormous amount                   
of testimony on  this issue as to what  the right percentage                   
should be  to still give an  incentive to apply. He  made an                   
observation,  if there  was a  concern that  garnishing 100%                   
would  be  a disincentive  for  people  to apply,  then  the                   
argument should be  made to take the  state agencies current                   
100%  and  lower  it  to whatever  percentage  was  set  for                   
private party  collection.   The question  was posed  to the                   
Administration  asking   if  they  had  data   showing  that                   
individuals were  not applying  because they knew  that 100%                   
of their  dividend would  go toward  their child  support or                   
student  loan obligation.    The  response was  anecdotally,                   
they had heard of cases where  this was the case, but it was                   
extremely difficult to quantify.                                               
                                                                               
He continued,  saying that the current  stipulation allowing                   
for 55% of the dividend to  be collected was determined at a                   
time  when the  dividend was  a significantly  lower amount.                   
He  predicted  that if  next  year's  check was  $1500,  and                   
Senator Donley's  amendment was adopted, Mr.  Pauley's guess                   
would be the  recipient would still receive  $300.  Speaking                   
for  himself, he  would  still apply  for  the "free"  $300.                   
That was a  lot of money to  him, and he felt it  would be a                   
lot of money to most people.                                                   
                                                                               
Co-Chair  Sharp  removed  his objection  and  Senator  Adams                   
maintained the  objection.   Roll call  was taken,  with the                   
vote  tally 4-2  (Senator Adams  and Senator  Phillips nay).                   
The motion passed.                                                             
                                                                               
Public  testimony   was  heard   from  Ms.  LaBolle.     Her                   
organization  supported the  legislation and  the change  in                   
the percentage from the Judiciary  version.  She added their                   
desire to  keep the amount  of the processing fee  to remain                   
set in regulation rather than statutes.                                        
                                                                               
Senator Donley  referred to language deleted  in lines eight                   
through eleven  and asked  for an  explanation.   Mr. Pauley                   
spoke  to  the   change  in  Workdraft  F   as  a  technical                   
correction suggested by  the Department of Law.   The change                   
gives a definition  of "after" in relation to  the amount of                   
the exemption taken.                                                           
                                                                               
Senator   Donley   moved   the  Senate   Finance   Committee                   
Substitute  for  SB 254  from  committee  with a  new,  zero                   
fiscal note  and individual recommendations.   There were no                   
objections and Co-Chair Sharp so ordered.                                      
                                                                               

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