Legislature(2011 - 2012)BUTROVICH 205
03/01/2012 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
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| Start | |
| SB198 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 29 | TELECONFERENCED | |
| *+ | SB 198 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
March 1, 2012
9:03 a.m.
MEMBERS PRESENT
Senator Bill Wielechowski, Chair
Senator Joe Paskvan, Vice Chair
Senator Albert Kookesh
Senator Kevin Meyer
Senator Cathy Giessel
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 198
"An Act establishing procedures relating to issuance,
suspension, or revocation of certification of police officers by
the police standards council; making certain court service
officers subject to certification by the police standards
council; making confidential certain information that personally
identifies a police officer; relating to requesting or requiring
police officers to submit to lie detector tests; repealing a
provision exempting certain police officers from a prohibition
against requiring certain employees to submit to lie detector
tests; and providing for an effective date."
- HEARD AND HELD
SENATE BILL NO. 29
"An Act relating to the reporting and analysis of certain
information relating to tax credits, deductions, exclusions,
exemptions, deferrals, and other tax expenditures; and providing
for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 198
SHORT TITLE: POLICE OFFICER PROTECTIONS/CERTIFICATION
SPONSOR(s): STATE AFFAIRS
02/17/12 (S) READ THE FIRST TIME - REFERRALS
02/17/12 (S) STA, JUD
03/01/12 (S) STA AT 9:00 AM BUTROVICH 205
WITNESS REGISTER
THOMAS PRESLEY, Staff
Senator Bill Wielechowski
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SB 198 on behalf of the sponsor.
TOM CLEMONS, Director
Alaska Association of Chiefs of Police
Seward, Alaska
POSITION STATEMENT: Testified in opposition to SB 198.
DAVE SEXTON, Executive Director
Alaska Police Standards Council (APSC)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to SB 198.
JAKE METCALFE, Executive Director
Public Safety Employees Association (PSEA), Local 803
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 198.
CHRIS GIFFORD, Municipal Chapter President
Public Safety Employees Association and
Sergeant
Juneau Police Department
Juneau, Alaska
POSITION STATEMENT: Spoke in support of SB 198.
JAY SEARS, Alaska State Trooper and
Western Vice President
Public Safety Employees Association (PSEA)
Nome, Alaska
POSITION STATEMENT: Testified in support of SB 198.
MARK MEW, Chief of Police
Anchorage, Alaska and
Member
Alaska Police Standards Council (APSC)
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 198
THOMAS ROBSON, Court Services Officer (CSO)
Alaska State Troopers and
Member
Public Safety Employees Association (PSEA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 198.
JEFFERY MITTMAN
Executive Director
American Civil Liberties Union (ACLU) of Alaska
Anchorage, Alaska
POSITION STATEMENT: Voiced concerns about sections of SB 198.
AARON DANIELSON, President
Airport Police and Fire Officer (APFO) and
Vice President
Public Safety Employees Association (PSEA)
Fairbanks, Alaska
POSITION STATEMENT: Testified in support SB 198.
ACTION NARRATIVE
9:03:27 AM
CHAIR BILL WIELECHOWSKI called the Senate State Affairs Standing
Committee meeting to order at 9:03 a.m. Present at the call to
order were Senators Giessel, Kookesh, Meyer, and Chair
Wielechowski. Senator Paskvan arrived shortly thereafter.
SB 198-POLICE OFFICER PROTECTIONS/CERTIFICATION
9:03:51 AM
CHAIR WIELECHOWSKI announced that the first bill would be SB
198, which provides police officers with improved due process
procedures when faced with disciplinary actions, and provides
better protection of their personal information, such as home
addresses.
THOMAS PRESLEY, staff, Senator Bill Wielechowski, introduced SB
198 on behalf of the sponsor. He read from the following sponsor
statement:
The intent of SB 198 is to ensure that public servants
who are entrusted with protecting Alaskans, are
afforded due process and protections when facing
allegations of misconduct. First, SB 198 allows for
suspension of a police officer's certificate.
Currently, Alaska law does not provide for the Alaska
Police Standards Council to suspend certificates, only
to revoke them. Revocation of a license has severe
consequences; officers may no longer practice in the
state and, for all intents and purposes, loses their
livelihood as a result. Suspension is one way to
discipline, yet retain police officers.
Section 2 sets the standard for evidence when
considering revocation of an officer's certification.
The new standard would be clear and convincing.
Section 3 makes it unlawful to suspend or revoke a
certificate or refuse to grant one based on a
disciplinary action against the officer that has been
reversed or removed.
Section 4 adds court service officers to the
definition of "police officer." These court service
officers already perform the functions of certified
officers. They carry guns, make arrests, and serve
warrants. Including these people under the definition
of police officers will make for streamlined training
and liability coverage.
Section 5 prohibits an employer from discriminating
against police officers in the case that an officer
refuses to take a lie detector test. Studies have
shown that the results of a polygraph can vary greatly
based on environment. One study by the Office of
Technology found that although the polygraph
instrument itself is essentially the same for all
applications, the purpose of the examination, type of
individual tested, examiner training, setting of the
examination, and type of questions asked, among other
factors, can differ substantially. The instrument
cannot itself detect deception.
Section 6 allows for a police officer to refuse taking
a lie detector test. It makes that decision
confidential. It may not be recorded on the police
officer's personnel file or employment record.
Section 7 makes photographs and home addresses
confidential unless an office voluntarily authorizes
their release. Instances of police being stalked
because of the public availability of this information
have been recorded. This section would make it harder
for those seeking to harm officers and their families.
Section 8 repeals a section in current statute that
exempts police officers from protections against
taking a lie detector test.
9:07:38 AM
CHAIR WIELECHOWSKI asked if other states allowed for suspension
rather than revocation of a police certificate.
MR. PRESLEY said there were 11 states that allow for suspension
of a certificate.
CHAIR WIELECHOWSKI asked how many states provided polygraph
protection for police officers.
MR. PRESLEY said that four states did.
SENATOR GIESSEL asked if the bill provided for additional
training for court service officers.
MR. PRESLEY did not know if it would require more training; SB
198 allows court service officers to receive training that is
already in place.
SENATOR GIESSEL asked if the court officers would be eligible
for a pay increment.
MR. PRESLEY said he could not address that issue.
SENATOR GIESSEL asked if other public servants have similar
protection of personal information.
MR. PRESLEY offered to find out.
CHAIR WIELECHOWSKI noted the arrival of Senator Paskvan.
9:10:21 AM
SENATOR KOOKESH asked if a polygraph was done pre-employment.
MR. PRESLEY said he thought pre-employment polygraphs would be
allowed under the bill.
SENATOR KOOKESH asked if University of Alaska campus security
personnel were covered under the legislation.
MR. PRESLEY said they were.
SENATOR KOOKESH asked if there was any opposition to SB 198.
MR. PRESLEY spoke of concerns from the Department of Public
Safety regarding termination issues and back pay.
9:11:53 AM
TOM CLEMONS, Director of Alaska Association of Chiefs of Police,
testified in opposition to SB 198. He shared his background and
the history of the Alaska Police Standards Council (APSC). He
related that APSC provides training, high professional
standards, and help with liability insurance qualification. He
stated that APSC has no history of being an outside influence
trying to tell police how to do their job. APSC maintains high
standards for public safety officers and wishes to maintain an
honorable standard in order to provide professional police
officers to the state and keep the public's respect. Officers
were not decertified unless they reached a level that warranted
that action. He shared a story about trusting police officers.
9:17:49 AM
SENATOR KOOKESH asked what process was used to enable Mr.
Clemons to represent his organization and testify against the
bill.
MR. CLEMONS said there was informal communication amongst the
board members.
SENATOR KOOKESH requested more information.
MR. CLEMONS reiterated that an informal process was used.
CHAIR WIELECHOWSKI asked if Mr. Clemons had had a change to read
all nine sections of the bill. He asked if there were certain
sections Mr. Clemons particularly disagreed with.
CHAIR WIELECHOWSKI summarized Section 1 of the bill. He
suggested it gives the option of suspension rather than
revocation, which he termed the "death penalty" for an officer.
He stated that Section 1 provided options.
MR. CLEMONS agreed that it would provide APSC with more options;
however, most decertifications are for more serious offenses. He
pointed out that there were reciprocal agreements with other
states that recognize Alaska's decertification program.
CHAIR WIELECHOWSKI urged Mr. Clemons to rethink his opposition
to Section 1. He maintained that it did not require suspension.
He addressed Section 2, which deals with the standard of "clear
and convincing evidence." He asked Mr. Clemons if he thought
that standard should not apply.
MR. CLEMONS said he believed the council does that now. He
related his experience on the review committee that made
decisions on decertification. He emphasized that if an officer
has violated the trust of the public he or she should be
decertified.
CHAIR WIELECHOWSKI agreed. He argued that he does not want to
take away licenses unless there is a standard of proof. He
explained three standards of proof: preponderance of the
evidence, clear and convincing evidence, and beyond a reasonable
doubt. He wondered why putting this standard into statute would
be a bad thing.
MR. CLEMONS opined that unless the violation reached the level
of decertification it was not undertaken.
9:24:28 AM
CHAIR WIELECHOWSKI explained Section 3 which says in an
arbitration case that has been reversed, deference to that
decision must be given. He asked if there was a problem with
that.
MR. CLEMONS talked about collective bargaining decisions which
might not be related to the violation. APSC is only interested
in what the officer did.
DAVE SEXTON, Executive Director, Alaska Police Standards Council
(APSC), testified in opposition to SB 198, which he said impacts
the current policies and procedures of APSC and the current
hiring and retention practices of some law enforcement agencies.
He summarized the mission statement of APSC; to produce and
maintain highly trained and positively motivated professional
officers capable of meeting contemporary law enforcement
standards of performance. He listed the core services provided
by APSC. In cases of misconduct by a certified policy officer,
APSC makes a determination whether certification should be
revoked. APSC monitors compliance with current regulations and
legislation, develops, monitors, and revises law enforcement
training, and assists academies and departments with funding for
academy training. It funds specialized and advanced training for
police departments, determines certificate eligibility for all
police, probation, and correctional officers, and issue the
appropriate level of certification. APSC provides pre-employment
polygraph and psychological testing for smaller agencies across
the state.
MR. SEXTON emphasized that SB 198 directly affects APSC
specifically by neutering several of the core services. He
voiced three main concerns. The first was regarding
certification. SB 198 would inhibit APSC's ability to decertify
an officer. He stated that in the last ten years, only 63
officers have been decertified, a third of which were voluntary
surrendered by the officer. He stressed that out of 3,000 only
40 had their certificate taken. He detailed the decertification
process the council uses. The council is made of 13 members
selected by the governor and affirmed by the legislature. He
termed the board's makeup as balanced and trustworthy, whose
primary mission is the protection of Alaskan citizens. He took
issue with the bill's removing the board's independence and
autonomy.
MR. SECTON described the second area of concern - the use of
polygraphs. Currently, the use of polygraphs is found in pre-
employment and in investigative situations. The bill attempts to
regulate this. He said he was not aware of a single
decertification decision that hinged on a polygraph test.
MR. SEXTON addressed a third concern in SB 198, the requirement
to cease providing photographs of officers in action. Mr. Sexton
held up a picture of officers who rescued a 12-year-old boy. If
the language passes, such pictures could not be shared. The
language in the bill prohibits showing photos of officers in
positive situations. He concluded by stating that APSC opposes
the legislation in its entirety.
9:33:28 AM
CHAIR WIELECHOWSKI thanked Mr. Sexton for his service on the
council. He referred to Section 1 and asked if there was a
specific problem.
MR. SEXTON agreed that Section 1 talks about suspension rather
than revocation. He noted the part APSC is opposed to is having
to follow the recommendation of a decision made in a separate
employment hearing. Under this bill, APSC is forced to make
decisions consistent with that decision. A strength of the
council is that it is autonomous. Currently, APSC is required to
take a termination recommendation into account, but is not
required to follow it. He gave an example of an officer who was
sleeping on duty and the recommendation was for decertification.
The council disagreed and did not follow up on it. He listed the
types of decisions APSC takes under recommendations when making
decisions.
SENATOR PASKVAN referred to Section 1, line 11, and pointed out
that the wording is "may". It does not mandate anything.
MR. SEXTON agreed, but read, "may follow the filing of an
accusation hearing or decision under Alaska statute and revoke
the certificate of a police officer." He argued, "if revocation
is consistent with that decision."
SENATOR PASKVAN disagreed. He used the example of the officer
sleeping on the job. The language says you may have revoked the
certification if it was consistent with the decision, but you
didn't have to do it. He did not think the word "may" would have
changed any of the past decertifications.
MR. SEXTON said he understands that the second part of the
section negates the first part.
SENATOR PASKVAN reiterated that he reads it as being
discretionary.
9:39:57 AM
CHAIR WIELECHOWSKI questioned Mr. Sexton's opposition to
polygraph tests not being used, when they have not been used in
recent cases.
MR. SEXTON clarified that polygraph's are being used, but have
not been crucial to council decisions regarding revocation. They
have been used for pre-employment and investigation reasons.
SENATOR KOOKESH asked if an arbitrator or a judge reinstates a
police officer, can APSC still revoke the officer's certificate.
MR. SEXTON replied that APSC could still revoke the certificate;
however, it considers broader standards beyond employment.
SENATOR KOOKESH repeated the question.
MR. SEXTON said judges don't rule on the same issues APSC deals
with.
SENATOR KOOKESH said he is hearing that APSC feels like the
legislature is interfering with APSC's duties. He pointed out
that APSC was created by the legislature.
MR. SEXTON agreed that the legislature has the authority to
offer SB 198, said he has been happy with past legislation.
However, this bill takes away from the current mission and core
services of APSC.
9:44:06 AM
CHAIR WIELECHOWSKI stressed that the bill does not gut what APSC
does; it puts sideboards on APSC's mission. He asked if Mr.
Sexton opposes the section that calls for higher standards for
decertification.
MR. SEXTON addressed the standards of evidence in civil matters.
He said he agrees with some things in the bill. However, nothing
in current legislation uses "preponderance of evidence". He
reiterated the low numbers of certificates taken away. He said
he values the ability to keep one class of officers and treat
them all the same.
SENATOR PASKVAN said he struggles with APSC's appeal process. He
asked if APSC would follow the recommendation of a judge who
determined an appeal was flawed.
MR. SEXTON said certainly. He explained how the process works.
First, the executive director makes a decision on an individual,
which can be appealed to the board if someone disagrees with it.
If someone does not agree with the board's decision, then it is
appealed to the courts. This bill injects itself into the middle
of the process when the decision is related to employment
infractions.
SENATOR PASKVAN again referred to the use of the word "may" and
questioned how that would hurt APSC's process.
MR. SEXTON agreed with the interpretation of the word "may," but
disagreed with the sentence following it, which he said removes
APSC's authority.
9:49:44 AM
SENATOR MEYER requested an opinion on including court officers
in the bill.
MR. SEXTON did not have a problem with that.
SENATOR MEYER asked if Village Public Safety Officers (VPSO's)
and bailiffs were already included in the bill.
MR. SEXTON said the VPSO's were included, but he did not know
about bailiffs.
SENATOR MEYER wondered how the low number of decertifications
compares with other states.
MR. SEXTON didn't know. He said there is a nationwide
organization that has that information.
9:51:50 AM
JAKE METCALFE, Executive Director, Public Safety Employees
Association (PSEA), Local 803, testified in support of SB 198.
He listed members in his organization. He maintained that a
strong APSC protects all Alaskans. He said he believed
suspension or revocation of a police officer's certificate must
be based on a high standard of proof and with due process. SB
198 gives the council additional tools, improves their
standards, and creates a regulatory system that respects due
process.
MR. METCALFE agreed with Senator Paskvan's understanding of
Section 1. He spoke to the issue of prior decisions, such as
employment or arbitration decisions, and agreed that the council
should be involved. He gave an example of the termination
process and spoke in support of the council's involvement with
the determination. He also agreed that the middle standard of
"clear and convincing evidence" be used in revocation process.
He highlighted the court service officers' certification
requirements in the bill, and agreed with the bill's
interpretation. He addressed the polygraph issue and agreed with
the provisions in the bill regarding pre-employment polygraphs.
He asked that the committee support the part in Section 5 of the
bill where it says agencies can't use the police officer's
refusal to submit to a lie detector test in an employment
action. In Section 6, PSEA supports the part that makes those
requests confidential.
MR. METCALF addressed Section 7 and gave examples of voluntary
photos and information that would be acceptable under this
section.
9:59:10 AM
SENATOR MEYER asked if court officers are represented by PSEA
and whether or not they were certified and adequately trained.
MR. METCALF explained that court officers are employed by the
Department of Public Safety, and through certification provided
by the bill, they will receive training. Some have already
received training.
SENATOR MEYER asked how many court officers there were.
MR. METCALF thought there were about 90.
SENATOR MEYER asked if court officers could be shown on TV under
this legislation.
MR. METCALF explained the requirements under the bill. It is
more about the police department submitting photos and the need
for an agreement to do so.
CHAIR WIELECHOWSKI said public photos can be put on the news.
However, if someone were to request a picture of an arresting
officer, the legislation says the officer has an option to say
no. He asked if officers have received threats.
MR. METCALF referred to an example about militia members staking
out troopers, judges, and other federal officials in Fairbanks.
There is concern about protecting the privacy of officers. Small
communities present greater risks.
10:03:55 AM
CHRIS GIFFORD, Municipal Chapter President, Public Safety
Employees Association, and Sergeant, Juneau Police Department,
spoke in support of SB 198. He said the bill is fair and
contains due process. It would raise the standard of revocation.
He stated support for the certification of court service
officers. He gave a personal example of a police officer who was
harassed and photos were not released in order to protect the
officer. He thought releasing personal information or photos
could be a safety issue for officers.
10:07:09 AM
JAY SEARS, Alaska State Trooper and Western Vice President,
Public Safety Employees Association (PSEA), testified in support
of SB 198. He stated support for every part of SB 198 and said
it corrects some of the issues facing public safety employees in
Alaska. He discussed APSC certification which he termed "the
ticket that allows you to become a police officer." It affects
all 50 states. He said PSEA was not in the business of
protecting bad officers, but did support a fair process. He
spoke of the double jeopardy with the APSC decertification
board. He thought APSC's revoking of a certificate after an
officer has been through the hearing process and been awarded
back the certificate, was double jeopardy. He compared it to the
military. He said he was not disputing the competency of APSC.
SENATOR GIESSEL said she was trying to find out what in the
decertification process was broken. She summarized what Mr.
Sears said about double jeopardy; an officer could have been
exonerated by the Supreme Court and could still lose
certification due to a decision by APSC.
MR. GIFFORD said that was correct. One such case is coming up in
APSC's May meeting.
SENATOR GIESSEL asked if that scenario had ever happened.
MR. GIFFORD did not know. He suggested Senator Giessel ask Mr.
Sexton.
CHAIR WIELECHOWSKI agreed with Mr. Gifford's analysis.
10:13:55 AM
MARK MEW, Anchorage Chief of Police and Member, Alaska Police
Standards Council (APSC), testified in opposition to SB 198. He
spoke of the importance of keeping the public's trust. Once in a
while there are "bad apples" and the police have to have the
tools to deal with them. He gave examples of recent cases in
Anchorage.
CHIEF MEW did not see a problem with the ability to suspend
found in Section 1. He suggested clearing up the language
surrounding the word "may." He opined that in Section 2, the
burden of proof should remain at the civil level. Using "clear
and convincing evidence" raises it to the "reasonable doubt"
standard. He said he thought that the existing standard was
adequate.
CHIEF MEW addressed Section 3 and compared it other professions,
such as medicine, where a physician might be exonerated in court
from a crime, but have his or her license revoked by a licensing
board of physicians. He maintained that the bill would eliminate
the council's ability to decertify police officers in similar
instances. He did not think the council should be bound by an
arbitrator's decision. He could think of two examples of when an
officer was decertified against the arbitrator's wish.
CHIEF MEW addressed the polygraph issue in Section 5 of the bill
and maintained that the ability to compel a polygraph should
remain. He opined that it has not been done in Anchorage. He
called it a "nuclear deterrent."
10:25:14 AM
THOMAS ROBSON, Court Services Officer (CSO), Alaska State
Troopers, and Member, Public Safety Employees Association (PSEA)
testified in support of SB 198. He commented on Section 4
regarding certifying court service officers. The training for
CSO's has varied greatly over the past 20 years. The bill would
ensure that minimum training standards are established. He said
there are currently 60 officers stationed in 11 cities in
Alaska. He noted that CSO's perform functions that are normally
associated with a sheriff's department, but unlike a sheriff's
department, these officers operate statewide. In addition CSO's
travel to the other 49 states to retrieve Alaskan fugitives. The
three primary functions of CSO's are the transportation of
prisoners, the service of court orders, and the security of the
court facilities.
10:28:22 AM
JEFFERY MITTMAN, Executive Director, American Civil Liberties
Union (ACLU) of Alaska, voiced concern about sections of SB 198.
He said he had provided written testimony to the committee. He
addressed the need for a more narrow definition of the
confidentiality issue.
AARON DANIELSON, President, Airport Police and Fire Officer
(APFO), Vice President, Public Safety Employees Association
(PSEA) testified in support SB 198. He reported about past
dealings with the bill in the 90's in order for APFO's to
receive APSC certification. He did not believe that pay was a
factor in the legislation.
CHAIR WIELECHOWSKI said that SB 198 would be set aside.
10:30:40 AM
There being no further business to come before the committee,
Chair Wielechowski adjourned the Senate State Affairs Standing
Committee at 10:30 p.m.
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