Legislature(2003 - 2004)

05/18/2003 01:03 PM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
     CS FOR HOUSE BILL NO. 245(JUD)(efd fld)                                                                                    
     "An Act relating to certain suits and claims by members of the                                                             
     military  services;  relating  to  certain  suits  and  claims                                                             
     regarding acts or omissions of the organized militia; relating                                                             
     to workers' compensation and death benefits for members of the                                                             
     organized  militia;  relating  to  liability  arising  out  of                                                             
     certain search and rescue, civil defense, fire management, and                                                             
     fire fighting activities."                                                                                                 
                                                                                                                                
                                                                                                                                
This was  the first  hearing for  this bill  in the Senate  Finance                                                             
Committee.                                                                                                                      
                                                                                                                                
Co-Chair Wilken stated that this bill, sponsored by the House Rules                                                             
Committee  at the request  of the Governor,  "limits civil  actions                                                             
arising out of claims and suits by members of the military service,                                                             
organized  militia  and firefighters.  The  State's  self-insurance                                                             
program for tort liability exposures  will be favorably affected by                                                             
this legislation."                                                                                                              
                                                                                                                                
GAIL VOIGHTLANDER,  Assistant Attorney General, Department  of Law,                                                             
testified via teleconference from  an off net location in Anchorage                                                             
that this bill addresses liability  for State and local governments                                                             
and State and local government employees and volunteers who provide                                                             
"important emergency services."                                                                                                 
                                                                                                                                
Ms. Voightlander  noted that  State and  local governments  provide                                                             
four different  areas of emergency  response, one being  search and                                                             
rescue.  She  informed  that  the  Alaska  State  Troopers  perform                                                             
approximately  400  search  and  rescue  operations  annually.  She                                                             
emphasized  this bill would  provide immunity  to the Troopers  and                                                             
other State  and local employees  and volunteers involved  in these                                                             
activities.                                                                                                                     
                                                                                                                                
Ms. Voightlander assured this legislation and the immunity it would                                                             
provide, is consistent with Alaska Supreme Court case law regarding                                                             
liability of  public safety workers,  and she listed examples.  She                                                             
stated this bill extends the provisions of public safety workers to                                                             
include search and  rescue operations in granting immunity  against                                                             
civil liabilities for negligent actions during an investigation.                                                                
                                                                                                                                
Ms. Voigtlander  furthered  that this bill  also addresses  "intra-                                                             
military tort"  and would  clarify "what was  muddied in an  Alaska                                                             
Supreme  Court case  in 2001"  called  Himsel versus  the State  of                                                           
Alaska. She  expressed that  confusion had long  existed as  to the                                                           
"various hats ? the  Alaska National Guard might wear  in any given                                                             
occasion,"  and   opined  that  this  case  further   "blurred  the                                                             
distinction" as well created uncertainty  regarding the responsible                                                             
party defending  against  claims made arising  from National  Guard                                                             
activities. She stated that this  legislation provides that members                                                             
of the  Alaska National  Guard,  if injured  while operating  under                                                             
State  orders,   would  be  covered   under  the  State's   workers                                                             
compensation program, and if injured  while operating under federal                                                             
orders, would be  provided workers compensation and  other benefits                                                             
by the  federal government.  She pointed  out that  members of  the                                                             
Alaska National Guard mostly operate under federal orders.                                                                      
                                                                                                                                
Ms. Voightlander continued that  the Himsel vs. State decision also                                                           
resulting in the allowance of the military to "sue one another" for                                                             
civil damages. She reported that all but two other jurisdictions in                                                             
the U.S.  follow the Feres  Doctrine, which  determines that  it is                                                             
poor  public  policy  to  allow members  of  the  military  to  sue                                                             
officers,  fellow  military  members  and  employers  for  military                                                             
activities.  She remarked that  to allow an  individual to  give an                                                             
order,  yet hold  that individual  liable  for civil  actions as  a                                                             
result of giving that order is  detrimental to the military command                                                             
structure. She  also remarked that  public policy should  not allow                                                             
civilian courts to  interject with military operations  and orders.                                                             
She stated this legislation would reestablish the Feres Doctrine in                                                             
Alaska.                                                                                                                         
                                                                                                                                
Ms. Voightlander stressed this  portion of the legislation is not a                                                             
"change", but rather is in response of the Himsel vs. State ruling.                                                           
She informed  that the Feres Doctrine  had been the "long  standing                                                             
rule" and that no lawsuits had  been filed against the State due to                                                             
the awareness of the Doctrine and the understanding that it applied                                                             
to Alaska. She pointed out that  the National Guard is comprised of                                                             
both  State  and federal  employees  "providing  services  under  a                                                             
variety of orders".                                                                                                             
                                                                                                                                
Ms. Voightlander  listed the third  subject of this legislation  as                                                             
civil defense. She referenced Title  26. Immunity for Civil Defense                                                             
Activities.,  in Alaska State  Statue, and  stated this bill  would                                                             
"continue"  that immunity,  although it  provides "slightly  higher                                                             
standards for  the one exception when  lawsuits are allowed  in the                                                             
area of civil defense.  She noted that civil defense  activities in                                                             
Alaska  are primarily  responses  to natural  disasters,  including                                                             
earthquakes  and floods.  She said  these  events normally  involve                                                             
State  and local  governments  and  employees and  volunteers.  She                                                             
stated that  this provision of the  bill would "immunize"  not only                                                             
the governments,  but also the  employees and volunteers  providing                                                             
"vital emergency services."                                                                                                     
                                                                                                                                
Ms. Voightlander  concluded  with the  provisions for  firefighting                                                             
activities contained in this legislation.  She informed that it had                                                             
been  understood  that  the  State  could not  be  sued  for  these                                                             
activities; however, the Alaska  Supreme Court in 2001 ruled in two                                                             
cases relating to the Miller's  Reach Fire, that the State could be                                                             
sued for "certain  aspects of firefighting activities".  This bill,                                                             
she  stressed,   would  provide   immunity   to  State  and   local                                                             
"responders"  and  to volunteers,  "all  who  conduct  firefighting                                                             
operations  in the  State  of Alaska",  to  allow them  to  perform                                                             
emergency responses. She surmised this would permit those personnel                                                             
to make emergency  decisions without  the threat of lawsuits  filed                                                             
against themselves individually or their employers.                                                                             
                                                                                                                                
Ms. Voightlander pointed out that  workers and volunteers defending                                                             
themselves  against  a lawsuit  are  subsequently  unavailable  for                                                             
public safety  activities  during times of  court appearances,  and                                                             
related appointments.                                                                                                           
                                                                                                                                
Ms. Voightlander informed that  the State and federal employees and                                                             
volunteers, are covered  by workers' compensation insurance  in the                                                             
event they are injured during the  performance of their duties. She                                                             
noted  workers'  compensation  is  a  "no-fault  system"  in  which                                                             
attorneys  are not  necessary  for an  injured  employee to  assert                                                             
rights and to receive compensation.                                                                                             
                                                                                                                                
Ms. Voightlander  stated this legislation  would bring  Alaska into                                                             
compliance  with other Western  states and  the U.S. Ninth  Circuit                                                             
Court of  Appeals rulings that  holds that firefighting  activities                                                             
are immune.                                                                                                                     
                                                                                                                                
Senator Taylor  asked about the plaintiff  in Himsel vs.  State why                                                           
the suit was brought.                                                                                                           
                                                                                                                                
Ms. Voightlander shared that Major General Kenneth Himsel served in                                                             
the Indiana  National Guard and was  stationed in Alaska.  She said                                                             
the lawsuit arose from a plane crash near Juneau of a federal plane                                                             
piloted  by a member  of the  federal National  Guard  transporting                                                             
several members  of the  Alaska National Guard  who were in  Active                                                             
Guard Reserve (AGR)  status, in which there were no  survivors. She                                                             
explained this status was categorized  as a federal status in which                                                             
members received federal benefits  and in this instance the spouses                                                             
and  dependent  children  did receive  benefits  from  the  federal                                                             
government following  the crash.  This lawsuit, she  stated, argued                                                             
whether the  mission was State or  federal, and the Alaska  Supreme                                                             
Court, in rejecting the Feres Doctrine of whether injuries arose as                                                             
a  result  of  military  service,  substituted  a  "new  test"  the                                                             
"uniquely military test." She updated that this lawsuit was settled                                                             
for  $7.5 million  with  the State  portion  of that  amount  $2.75                                                             
million and  the remainder  paid by insurance  the State no  longer                                                             
carries.                                                                                                                        
                                                                                                                                
Senator Taylor asked about the other passengers on that flight.                                                                 
                                                                                                                                
Ms.  Voightlander  indicated  that  General  Carrol  [spelling  not                                                             
specified] was on  that plane and was the only individual  involved                                                             
who was "clearly a State employee" and therefore his estate was not                                                             
included  in the  lawsuit. She  was unaware  whether the  General's                                                             
spouse  wanted to  participate  in  the suit,  but  noted that  the                                                             
acceptance of  State workers compensation  benefits precluded  such                                                             
actions.                                                                                                                        
                                                                                                                                
Senator Taylor  asked if the other  passengers were members  of the                                                             
military.                                                                                                                       
                                                                                                                                
Ms. Voightlander affirmed and reiterated that Major General Kenneth                                                             
Himsel was  a member of the Indiana  National Guard, the  pilot was                                                             
considered   a  federal  employee   and  the  co-pilot   and  other                                                             
passengers,  excluding General Carrol,  were members of  the Alaska                                                             
National Guard  in AGR status. She  stated that receipt  of federal                                                             
benefits prohibited  the estates  from recovering from  the federal                                                             
government,  although  it did  not bar  them from  pursuing  remedy                                                             
against  the State  of Alaska.  She noted  such  attempts would  be                                                             
barred under the Feres Doctrine.                                                                                                
                                                                                                                                
Senator Taylor  asked how the State  was ruled liable for  an event                                                             
involving a federal plane piloted by a federal employee.                                                                        
                                                                                                                                
Ms. Voightlander replied that the Alaska Supreme Court ruled on the                                                             
question as to whether the mission was federal or State and whether                                                             
the pilot  was a "borrowed  servant" from  the federal  government,                                                             
necessitating that the State be liable for the pilot's actions.                                                                 
                                                                                                                                
Senator Taylor and Ms. Voightlander continued to discuss the merits                                                             
of  this case  with Ms.  Voightlander  summarizing  that the  State                                                             
decided to settle the case following the initial trial court ruling                                                             
and after analyzing  the strengths and weaknesses and  the probable                                                             
cost of extended litigation. She addressed Senator Taylor's concern                                                             
that the matter was  never decided by the Alaska Supreme  Court, by                                                             
emphasizing  that because  the Feres  Doctrine  was dismissed,  its                                                             
provisions were invalid and subsequently  the State was not immune.                                                             
                                                                                                                                
Senator Taylor next addressed Section 2 relating to civil immunity,                                                             
which stipulates  that "a person may  not bring a civil  action for                                                             
damages against the  State political subdivision?[for  the] results                                                             
of an  action or  a mission  for performing  or failing to  perform                                                             
activities or duties authorized" under AS 18.60.120 through 175. He                                                             
asked for a summary of these statutes.                                                                                          
                                                                                                                                
Ms. Voightlander responded that these statutes relate to search and                                                             
rescue  operations,  and  stipulate   the  funding  and  authorized                                                             
participation in those activities.                                                                                              
                                                                                                                                
Senator  Taylor asked  if this  provision would  grant immunity  to                                                             
Alaska  State  Troopers,  and  other  State  and  local  government                                                             
employees.                                                                                                                      
                                                                                                                                
Ms.  Voightlander  affirmed   this  would  apply  to  all  parities                                                             
participating in search and rescue  operations including volunteers                                                             
and agents.                                                                                                                     
                                                                                                                                
Senator  Taylor clarified  this legislation  would provide  blanket                                                             
immunity for all  related activities regardless of  recklessness or                                                             
gross negligence.                                                                                                               
                                                                                                                                
Ms. Voightlander affirmed there would be no exemptions.                                                                         
                                                                                                                                
Senator  Taylor  asked  if this  portion  of  the  legislation  was                                                             
precipitated as a result of the lawsuit relating to the death of an                                                             
elderly couple and their grandchild,  and the Alaska State Troopers                                                             
failure to conduct a search and rescue operation for those stranded                                                             
travelers.                                                                                                                      
                                                                                                                                
Ms. Voightlander answered that a couple of lawsuits have been filed                                                             
against the State  on this matter, including the situation  Senator                                                             
Taylor indicated  that involved  a family  traveling on the  Denali                                                             
Highway after  it had been closed  for the winter. She  stated this                                                             
trial resulted in a judgment against the State.  She qualified that                                                             
family  members reported  that the  travelers were  located in  the                                                             
Kenai area and search and rescue  operations were conducted in that                                                             
area. She said it  was only later learned that the  travelers could                                                             
be on the Denali Highway, at which  time weather conditions were 45                                                             
degrees below zero.                                                                                                             
                                                                                                                                
Senator Taylor asked the judgment rendered against the State.                                                                   
                                                                                                                                
Ms. Voightlander  told of the rulings  and appeals process  of this                                                             
case.                                                                                                                           
                                                                                                                                
                                                                                                                                
SFC 03 # 102, Side B 07:23 PM                                                                                                   
                                                                                                                                
                                                                                                                                
Ms. Voightlander  continued that if  the State does not  ultimately                                                             
prevail, the total judgment would  be over $7 million incorporating                                                             
the findings  that the  State shared  50 percent  of fault and  the                                                             
travelers' negligence contributed 49 percent of fault.                                                                          
                                                                                                                                
Senator Taylor surmised  that as a result of this lawsuit,  blanket                                                             
immunity would  be granted, regardless  of whether State  employees                                                             
act negligently, recklessly, grossly  negligently or intentionally.                                                             
                                                                                                                                
Ms. Voightlander again affirmed. She noted that in addition to this                                                             
case, another  lawsuit was  filed against  the State that  involved                                                             
decisions about whether to instigate  a search and rescue operation                                                             
from  one village  or  another village,  and  in which  manner  the                                                             
operation should proceed.                                                                                                       
                                                                                                                                
Senator Taylor asked the result of that suit.                                                                                   
                                                                                                                                
Ms. Voightlander  responded that a  settlement was reached  in this                                                             
case.                                                                                                                           
                                                                                                                                
Senator Taylor asked if therefore the State admitted wrongdoing.                                                                
                                                                                                                                
Ms. Voightlander explained that  in any civil litigation, weight is                                                             
given to possible verdicts, potential damages that could be awarded                                                             
and appeal  costs.  She stressed  that settlements  do not  include                                                             
admission of liability.                                                                                                         
                                                                                                                                
Senator Taylor asked the settlement amount.                                                                                     
                                                                                                                                
Ms. Voightlander answered approximately $250,000.                                                                               
                                                                                                                                
Senator Taylor again  spoke to negligence or gross  misconduct of a                                                             
State employee resulting in damage  to another party that would not                                                             
be subject to civil actions.                                                                                                    
                                                                                                                                
Ms.  Voightlander   emphasized  this  legislation   "represents  an                                                             
enunciation  of public  policy"  that  allows parties  involved  in                                                             
search and rescue operations to make the best decisions at the time                                                             
for the safety of workers and those  being rescued, without concern                                                             
for possible civil liability actions.                                                                                           
                                                                                                                                
Senator  Taylor  noted the  absence  of  language in  this  Section                                                             
specifying  immunity  would  apply  to  volunteers.  He  identified                                                             
"public  employees who  are salaried  and paid  by the  State or  a                                                             
political subdivision" and therefore argued, "it's a nice emotional                                                             
argument" to suggest "some poor volunteer might get sued"; however,                                                             
the provisions only applies to  "our employees doing negligent acts                                                             
that cause damage or death."                                                                                                    
                                                                                                                                
Ms.  Voightlander  corrected  that volunteers  "covered  under  the                                                             
agents principal" and are considered agents of the State.                                                                       
                                                                                                                                
Senator  Taylor   asked  if  volunteers   were  sued  in   the  two                                                             
aforementioned cases.                                                                                                           
                                                                                                                                
Ms. Voightlander answered no.                                                                                                   
                                                                                                                                
Senator  Taylor directed  attention to Section  7, which  specifies                                                             
employees and authorized volunteers  and includes an exception from                                                             
immunity  for malicious  actions  or reckless  indifference to  the                                                             
rights of others or safety of others. He asked why this language is                                                             
not included in Section 2.                                                                                                      
                                                                                                                                
Ms. Voightlander replied that this section amends existing statutes                                                             
and adds a "clear  and convincing" standard. She informed  that the                                                             
exceptions are  not included in other  sections of the bill  due to                                                             
the  high cost  of defense  against  lawsuits.  She emphasized  the                                                             
intent  of this  bill is  to not  distract from  search and  rescue                                                             
activities.                                                                                                                     
                                                                                                                                
Senator Taylor  next surmised that  the language relating  to civil                                                             
defense in  Sections 8 and 9 mirrors  federal language  relating to                                                             
homeland security, specifically in granting civil immunity to those                                                             
administering vaccinations.                                                                                                     
                                                                                                                                
Ms. Voightlander  replied that Section 9 provides immunity  for the                                                             
activity  of administering  vaccinations; however  she pointed  out                                                             
that existing programs provide funds for people injured as a result                                                             
of adverse reactions to vaccinations.                                                                                           
                                                                                                                                
Senator  Taylor understood  such programs  exist to provide  relief                                                             
from  adverse  reactions  resulting  from  specific   vaccinations,                                                             
although  this legislation  would  apply  to all  vaccinations.  He                                                             
opined that statistically all vaccination  programs would result in                                                             
an adverse reaction to some recipients.                                                                                         
                                                                                                                                
Co-Chair  Green  referenced  the  definition   of  "civil  defense"                                                             
provided in Section 9 amending  AS 26.20.200(1) on page 4, line 31,                                                             
through page 5, lines 1  9 as follows.                                                                                          
                                                                                                                                
               (1) "civil defense" means the protection and defense                                                             
     of the  civilian population  by the  organized efforts  of the                                                             
     residents  of  the state  other  than  those in  the  military                                                             
     service,  and  includes  without  limitation,  fire  fighting,                                                             
     policing, rescue, air raid  warning, security, communications,                                                           
     medical  service,  vaccination and  other  actions to  protect                                                           
     public health, transportation,  evacuation of persons, welfare                                                           
     aid,  guard duty,  anti-espionage and  anti-sabotage  service,                                                             
     construction  of temporary  housing and  bomb proof  shelters,                                                             
     [AND] any  other service necessary  for the protection  of and                                                             
     aid  to the  public  not normally  furnished  by the  military                                                             
     services,  and   training,  preparation,  travel,   and  other                                                           
     activities  necessary   for  the  provision  of  the  services                                                           
     described in this paragraph;                                                                                             
                                                                                                                                
     New Text Underlined [DELETED TEXT BRACKETED]                                                                             
                                                                                                                                
Co-Chair Green understood this language clarifies that the immunity                                                             
would not apply to all vaccinations,  but rather those administered                                                             
for the purpose of civil defense.                                                                                               
                                                                                                                                
Senator Taylor surmised  Co-Chair Green's assertion  to be correct,                                                             
although the language is "quite broad" in the parties included.                                                                 
                                                                                                                                
Senator Taylor then asked if this legislation would prevent parties                                                             
from filing suit against the State  for incidences similar to those                                                             
arising  from the Millers  Reach fire.  He opined  that the  system                                                             
operated correctly in this instance, as well as all such instances,                                                             
in that the case was brought and the court ruled that the State was                                                             
not at fault. He asked the reason to amend the existing provisions.                                                             
                                                                                                                                
Ms. Voightlander indicated this legislation addresses the matter in                                                             
Sections 11 and 12 related to firefighting activities. She asserted                                                             
this legislation is necessary to  affirm public policy factors. She                                                             
informed that  the cost of this  litigation is high, in  that these                                                             
activities  remove  employees from  their  regular  jobs to  defend                                                             
against civil litigation, in addition  to defense costs. She listed                                                             
the legal  expenses of the  Millers Reach  Fire litigation  at $2.5                                                             
million to  date. She reiterated  that this legislation  would hold                                                             
Alaska consistent with other Western  states and with case law that                                                             
holds firefighters immune. She expressed that response to emergency                                                             
situation requires discretion and judgment decisions.                                                                           
                                                                                                                                
Senator Taylor asked  whether property owner could  seek damages in                                                             
the event  of a disaster when gross  negligence of State  employees                                                             
could be demonstrated.                                                                                                          
                                                                                                                                
Ms. Voightlander responded that  property owners would be unable to                                                             
sue for damages.                                                                                                                
                                                                                                                                
Senator Taylor  clarified that no  exceptions would be  allowed for                                                             
instances of  gross negligence, reckless  disregard of  human life,                                                             
and intentional conduct.                                                                                                        
                                                                                                                                
Ms. Voightlander  affirmed.  She qualified that  if an employee  or                                                             
agent's  actions  "rise  to  the level  of  violating  a  federally                                                             
guaranteed constitutional right"  the individual has the "remedy of                                                             
filing either in federal or State court under 42 USC Section 1983".                                                             
                                                                                                                                
Senator Taylor noted the aforementioned federal statute pertains to                                                             
civil rights.  He asked if the intent  of Sections 11 and  12 is to                                                             
allow parties to seek damages under civil rights laws.                                                                          
                                                                                                                                
Ms. Voightlander  responded that these sections would  immunize the                                                             
State  and  local  governments  and   employees  in  fire  fighting                                                             
activities. She pointed out that the existing AS 09.65.070 provides                                                             
immunity to local firefighters.                                                                                                 
                                                                                                                                
Senator Taylor asked  if any conditions or exceptions  are provided                                                             
in the aforementioned statute relating to local firefighters.                                                                   
                                                                                                                                
Ms. Voightlander answered no.                                                                                                   
                                                                                                                                
Co-Chair  Wilken  asked  if  the  witness  recognizes  a  need  for                                                             
qualifiers  in  event of  gross  negligence,  such as  exampled  by                                                             
Senator Taylor.                                                                                                                 
                                                                                                                                
Ms.   Voightlander   responded  that   providing   exceptions   and                                                             
qualifiers, requires  the State to  incur defense expenses  even if                                                             
successful against lawsuits. She  informed that Alaska law provides                                                             
that a civil trial could be decided  summarily without a trial only                                                             
if  "no genuine  issues  of material  fact" are  demonstrated.  She                                                             
stated that the standards  for summary judgment are  set "very high                                                             
in Alaska" and that cases are increasingly "having to go to trial".                                                             
She furthered that  case law provides that "even when  people agree                                                             
that  there  is not  a  fact issue,"  different  jurors  "may  have                                                             
different views as  to the inferences to derive from  those facts."                                                             
                                                                                                                                
DEAN BROWN,  Deputy Director, Division  of Forestry, Department  of                                                             
Natural  Resources testified  via  teleconference from  an off  net                                                             
location about the  impact this legislation would have  on forestry                                                             
operations.  She pointed  out the  major function  of the  Division                                                             
relates to wildland fire fighting. She spoke to increasing wildland                                                             
urban interface concerns as more people move into wooded areas, and                                                             
she noted  that during a fire season,  approximately 86  percent of                                                             
fires are  human caused. During  the spring season, she  furthered,                                                             
virtually 100 percent are human caused and are located primarily in                                                             
the main roaded area  of the State and remarked that  the number of                                                             
springtime fires  is increasing and occurring earlier  in the year.                                                             
                                                                                                                                
Ms. Brown expressed concern over  the impact that litigation has on                                                             
firefighters, who are typically  seasonal workers for three to five                                                             
months annually and  are trained to national standards.  She stated                                                             
these firefighters make critical life and death decisions involving                                                             
fires varying from minor campfires to major fires. She stressed the                                                             
importance  that "their mind  be 100 percent  on that job"  without                                                             
concern for the consequences of actions taken in the performance of                                                             
duties.                                                                                                                         
                                                                                                                                
Ms. Brown told of employees fighting  fires in the Mat-Su area that                                                             
occurred during windstorms in February 2003. She informed that many                                                             
of these firefighters  fought fires in the evenings  and until 5:30                                                             
am and then  appeared in court  at 8:00 am for daylong  proceedings                                                             
related to the Millers Reach Fire lawsuit.                                                                                      
                                                                                                                                
Ms. Brown  also pointed out that  federally employed fire  fighters                                                             
are immune from civil litigation  and that in many instances State,                                                             
federal and locally employed fire fighters are involved in the same                                                             
operations. She reiterated the  U.S. Ninth Circuit Court of Appeals                                                             
verdict  upholding   the  immunity  of  government   public  safety                                                             
employees.                                                                                                                      
                                                                                                                                
Co-Chair Wilken gave a hypothetical  situation of firefighter under                                                             
the influence of drugs, responding to an emergency call and hitting                                                             
a child  with a fire  truck, killing  the child.  He asked  if that                                                             
firefighter would not be held liable  in this instance based on the                                                             
decision to use drugs "on the job.                                                                                              
                                                                                                                                
Mr.  Brown informed  that  the  Department  has a  "strict"  policy                                                             
against alcohol  and drug  use and employment  of the  hypothetical                                                             
firefighter would be "terminated immediately."                                                                                  
                                                                                                                                
Co-Chair Wilken commented this would not "bring the child back".                                                                
                                                                                                                                
Senator Taylor  noted that  Sections 11 and  12 relating to  "fires                                                             
authorized to be  preformed" cite different statutes:  AS 41.15.010                                                             
and AS 41.17.080. He asked why  two "identical immunity provisions"                                                             
are necessary.                                                                                                                  
                                                                                                                                
Ms.  Voightlander  replied  that AS  41.15,  cited in  Section  11,                                                             
relates to forests and provides  to firefighting activities, and AS                                                             
41.17,  cited  in   Section  12,  relates  to  administration   and                                                             
management. She explained that under both chapters, the Division of                                                             
Forestry is authorized to conduct firefighting activities.                                                                      
                                                                                                                                
Senator  Taylor  understood  general  State  policy  on  liability,                                                             
exampling that the Legislature could not be sued for its decisions,                                                             
and the  Department of Transportation  and Public Facilities  could                                                             
not be sued for decisions made regarding the location of a highway,                                                             
as those decisions are considered  discretionary. However, he noted                                                             
that the Department  of Transportation and Public Facilities  could                                                             
be  held liable  for administrative  actions,  such  as failure  to                                                             
safely  maintain  roadways  or otherwise  warn  the public  of  the                                                             
dangers. He  surmised that  a threshold exists  in which the  State                                                             
becomes liable for  its actions. He asked for clarification  of the                                                             
activities for which the State could be sued.                                                                                   
                                                                                                                                
Ms. Voightlander  agreed  with Senator Taylor's  assertion  that AS                                                             
950.250 stipulates that discretionary  decisions are not subject to                                                             
liable, although  once decisions are  made the State could  be sued                                                             
for the manner in which activities are conducted.                                                                               
                                                                                                                                
Senator Taylor indicated he has many other questions.                                                                           
                                                                                                                                
Co-Chair  Wilken asked  the witness  to  reply to  the scenario  he                                                             
earlier posed involving a firefighter under the influence of drugs.                                                             
                                                                                                                                
Ms. Voightlander responded that  under existing law AS 965.070, "an                                                             
action for damages could not be  made against an employee or member                                                             
a fire department if the claim  is for a tort and is based upon the                                                             
act  or admission  of  the member  of the  fire  department in  the                                                             
execution of a function  for which the department is  established."                                                             
Therefore, she  stated that an injured  party would be  barred from                                                             
filing suit in the aforementioned instance.                                                                                     
                                                                                                                                
Senator Olson  asked, as a matter  of public policy, how  the State                                                             
provides  adequate oversight  to ensure quality  search and  rescue                                                             
operations.                                                                                                                     
                                                                                                                                
Co-Chair Wilken requested the question be held.                                                                                 
                                                                                                                                
Co-Chair Wilken ordered the bill HELD in Committee.                                                                             
                                                                                                                                
AT EASE 7:56 PM / 7:57 PM                                                                                                       
                                                                                                                                

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