Legislature(2009 - 2010)BELTZ 211

02/24/2009 09:00 AM Senate STATE AFFAIRS

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSJR 6(STA) Out of Committee
Moved SB 50 Out of Committee
Moved CSSB 19(CRA) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB  19-COMPLAINTS AGAINST PEACE OFFICERS/VPSOS                                                                     
9:25:05 AM                                                                                                                    
CHAIR MENARD announced the consideration of SB 19.                                                                              
SENATOR MEYER noted that the  committee was working on Version E,                                                               
which is CSSB 19 (CRA).                                                                                                         
9:25:52 AM                                                                                                                    
SENATOR FRENCH  said this  bill is based  on a  recommendation of                                                               
the Branchflower Report.  It balances the need  to keep personnel                                                               
investigations  confidential  to  preserve  the  reputations  and                                                               
privacy of troopers with the  need to provide some feedback about                                                               
complaints of a trooper. The  bill now strictly pertains to peace                                                               
officers. The committee earlier  eliminated village public safety                                                               
officers from  it. The bill sets  up a process for  a citizen who                                                               
has  a  complaint and  is  willing  to  sign a  written  document                                                               
regarding  it.  The  department   will  provide  updates  on  the                                                               
progress of  the investigation  and the  outcome of  it. It  is a                                                               
small step. There will be no  website or public hearings; it just                                                               
establishes a small  safety valve that lets the  public know that                                                               
a complaint was dealt with and what the outcome was.                                                                            
9:27:57 AM                                                                                                                    
CHAIR MENARD asked if Mr. Branchflower has seen the CS.                                                                         
SENATOR FRENCH said he will send him the current language.                                                                      
SENATOR  KOOKESH  asked  if  the   definition  of  peace  officer                                                               
satisfies the committee.                                                                                                        
SENATOR FRENCH  noted a letter  of support from the  Alaska Peace                                                               
Officers  Association.  The  definition  of  peace  officers,  in                                                               
general,  means  troopers,  municipal   police,  VPSOs  and  U.S.                                                               
marshals, but  the bill narrows  the definition to those  who are                                                               
employed by the department. That restricts it to state troopers.                                                                
9:30:20 AM                                                                                                                    
SENATOR KOOKESH asked if there is any opposition.                                                                               
SENATOR FRENCH  said he has  been working with the  Public Safety                                                               
Employees  Association  (PSEA)  and   APD,  and  there  are  some                                                               
concerns. He shares some of  the concerns. "You could conceivably                                                               
wind  up having  revealed  to a  citizen what  the  outcome of  a                                                               
complaint is;  you could wind up  with, sort of, a  public record                                                               
... of discipline,"  which could be used against  that officer in                                                               
court or with  public opinion. He is working with  APD, PSEA, and                                                               
the department [of public safety  (DPS)]. The commissioner of DPS                                                               
is  establishing  a new  Office  of  Internal Affairs  that  will                                                               
largely replicate SB 19. Some troopers are a little concerned.                                                                  
SENATOR PASKVAN  asked if the intent  is to give a  response to a                                                               
written complaint, but not an oral complaint.                                                                                   
9:32:16 AM                                                                                                                    
SENATOR  FRENCH said  the basic  intent is  to just  provide some                                                               
feedback to citizens. The reason  he requires the complaint to be                                                               
written is  to keep track of  it and to expect  a "seriousness of                                                               
SENATOR  PASKVAN said  there have  been investigations  that were                                                               
serious and were  never formalized; it was  just done internally.                                                               
He  wants to  make  sure the  bill is  not  foreclosing the  oral                                                               
notification, and that the internal  process can continue - "that                                                               
we're  not limiting  it to  just written  notification back  to a                                                               
9:33:15 AM                                                                                                                    
SENATOR FRENCH  said that  is a  great point, and  it is  not his                                                               
intention  to  shut  that  down.  He  doesn't  believe  that  the                                                               
department  intends to  make all  complaints be  in writing.  His                                                               
discussions with the  commissioner and the union  have taught him                                                               
that they  take complaints seriously.  A phone call  alerting the                                                               
department to an  officer who is driving poorly,  for example, is                                                               
looked into.  It is not his  intention to make all  complaints in                                                               
written format.                                                                                                                 
9:34:10 AM                                                                                                                    
TERRENCE  SHANIGAN,   Alaska  State  Trooper,  Member   of  PSEA,                                                               
Talkeetna, said every  Alaska resident has the  right to complain                                                               
about  anyone in  any  job.  The original  definition  on line  5                                                               
identified  state  peace  officers,  "and immediately  to  me  it                                                               
singled out state troopers." The  language looked like it focused                                                               
on  troopers.  That  was  also   the  reaction  of  some  of  his                                                               
colleagues.  He  asked  if  a   complaint  means  being  rude  or                                                               
unprofessional, or  if it means  using pepper spray to  deal with                                                               
an unruly  six-year-old. One of  those is a personnel  issue that                                                               
would be  handled confidentially. The  other is excessive  use of                                                               
force, which might be criminal.  There are processes in place for                                                               
people  who   complain.  Sometimes  those  complaints   point  to                                                               
criminal acts, and others are  handled like any personnel matter.                                                               
If someone working at a store  is rude to a customer, the manager                                                               
may handle  that rudeness later. Some  of the intent in  the bill                                                               
is  notifying  the  complainant.  "We do  that  already  in  many                                                               
cases." Informal  complaints may  not get  a follow-up  unless it                                                               
has  been  asked for.  Since  there  are already  procedures  for                                                               
handling complaints  made against state troopers,  the bill looks                                                               
like  it singles  out  state troopers  specifically.  The DPS  is                                                               
already  working  to  come  up  with  that  process  through  the                                                               
commissioner, who  would have an "independent  source investigate                                                               
complaints and those kinds of  things." Having this in statute is                                                               
redundant and complicates the situation.  It should be a standard                                                               
process  statewide  for  all law  enforcement  officers.  Forcing                                                               
personnel matters  to be made  public by statute  could undermine                                                               
good  troopers  and the  trust  in  them  -  "and also  trust  by                                                               
troopers  that those  that  are doing  the  investigating of  the                                                               
complaints  are actually  taking  a neutral  position." It  could                                                               
serve to cast a shadow of  doubt over troopers or law enforcement                                                               
officers  in the  public's eye.  It creates  a slippery  slope by                                                               
giving  some of  the  information  back, and  it  would ruin  the                                                               
credibility of those sworn to protect Alaskans.                                                                                 
9:38:00 AM                                                                                                                    
MR.  SHANIGAN  said,  "By publicizing  accusations  made  against                                                               
somebody for  the sake  of somebody's curiosity  ... I  don't see                                                               
this just stopping  at giving feedback to somebody.  I think this                                                               
opens the  door for somebody  then to say,  well we want  to know                                                               
more." He said there is a desire  to know and a need to know. His                                                               
profession spends  a lot  of time dealing  with people  who cause                                                               
problems and who are in legal  trouble. There is a higher rate of                                                               
people  who  want to  complain.  A  handful  of people  may  make                                                               
numerous  complaints against  every  single trooper.  If some  of                                                               
that is  made public  without knowing how  often such  people are                                                               
complaining, what their  histories are, or if  the complaints are                                                               
valid  it could  give troopers  black  eyes. The  bill speaks  to                                                               
written  statements being  unsworn falsification.  "It should  be                                                               
unsworn falsification even  if it is verbal." He  doesn't see the                                                               
district  attorney's  office  starting  to take  on  these  false                                                               
complaints when there are more serious crimes to deal with.                                                                     
CHAIR MENARD surmised that he is not in favor of SB 19.                                                                         
MR.  SHANIGAN said  he is  not, mostly  because there  are things                                                               
that single out state troopers.                                                                                                 
9:40:49 AM                                                                                                                    
SENATOR FRENCH  thanked the trooper.  He said he has  had several                                                               
thoughtful  conversations with  line  officers  and the  troopers                                                               
union, and  he is listening  on how  to balance the  interests of                                                               
troopers so they  are not harassed by false  complaints, with the                                                               
public's legitimate  right to have  some feedback on  issues with                                                               
the individuals who  are empowered to carry guns  and enforce the                                                               
law. He will make sure the bill doesn't get blown wide open.                                                                    
SUE STANCLIFF, Special Assistant  to the Commissioner, Department                                                               
of Public  Safety, Anchorage, said Trooper  Shanigan was speaking                                                               
on  his own  behalf.  The  DPS has  worked  closely with  Senator                                                               
French and appreciates  his efforts, but it has not  yet taken an                                                               
official position on the bill. She  said there has been a problem                                                               
with  reporting back  to people,  and the  public trust  has been                                                               
diminished.  DPS wants  to fix  it. The  commissioner has  done a                                                               
tremendous  amount   of  work  in  the   Office  of  Professional                                                               
Standards that  he has  created to protect  the integrity  of the                                                               
department  and insure  the public  trust. It  is a  new internal                                                               
affairs  unit  and  is  a   proactive  approach.  The  Office  of                                                               
Professional Standards  was created in  response to the  need for                                                               
centralized oversight,  management, and analysis  of departmental                                                               
investigations.  Investigating  employee misconduct  will  ensure                                                               
that complaints are dealt with  in a thorough, objective, timely,                                                               
and consistent manner. The office  will work for the commissioner                                                               
and  will be  staffed with  two highly-trained  investigators. In                                                               
the past, serious complaints were  reviewed at the division level                                                               
by a trained supervisor who would  follow the manual to guide him                                                               
or  her  through the  often  complex  steps of  notification  and                                                               
investigation required by union contracts.                                                                                      
9:44:33 AM                                                                                                                    
MS.  STANCLIFF  said  between   union  contracts  and  department                                                               
policies, it can be a  difficult maze. It is generally effective,                                                               
but there have  been problems with the  approach. Current statute                                                               
concerning  confidentiality  restricts  information that  can  be                                                               
released to a complainant. It  has been very difficult to provide                                                               
a  final outcome  to a  complainant. The  Office of  Professional                                                               
Standards will send  a letter to every  complainant advising them                                                               
of the investigation  and appropriate action. It  does not change                                                               
how complaints  are handled  at the  field level.  The commanding                                                               
officer has a database that complaints  are entered into. It is a                                                               
tracking system  and early  warning device.  The system  is being                                                               
put into  place by the  commissioner and  he believes it  will be                                                               
very effective.                                                                                                                 
9:46:56 AM                                                                                                                    
VERNON  MARSHALL, Lobbyist,  Public Safety  Employees Association                                                               
(PSEA),  Anchorage,  said  PSEA   has  a  prepared  statement  of                                                               
concerns with SB  19. He is working with the  sponsor. He has the                                                               
article from  the collective  bargaining agreement  that outlines                                                               
the   specific  procedures   for   criminal  and   administrative                                                               
investigations and inquiries. He said  PSEA has met with everyone                                                               
on the committee. He expressed  a concern of confidentiality. The                                                               
collective  bargaining agreement  stipulates  that material  that                                                               
relates to an investigation is  confidential. That is good public                                                               
policy. He  is not worried that  the state will create  a website                                                               
with  that  information,   but  others  may  want   to  post  the                                                               
complaints. That is not a good way  to deal with the issues of an                                                               
agency as important  as the Alaska troopers.  Also, the threshold                                                               
of  signing a  complaint is  relatively low.  The statements  are                                                               
punishable  as  unsworn falsification,  but  there  is a  greater                                                               
penalty for  falsely signing a  boat registration. Whether  it is                                                               
valid or not,  a complaint should be brought forth  in the spirit                                                               
of trying to get the issue  presented to the department and dealt                                                               
with. Some frivolous  complaints will be eliminated  if the level                                                               
of  signing  is  raised  to   a  point  of  oath.  PSEA  supports                                                               
Commissioner Masters'  Office of  Professional Standards,  and it                                                               
is working with the department. It  is a good way to resolve some                                                               
of the problems that people have.                                                                                               
9:51:29 AM                                                                                                                    
SENATOR MEYER asked how the bill can be improved.                                                                               
MR. MARSHALL  suggested removing the section  on confidentiality.                                                               
There would still  be language that would be  consistent with the                                                               
collective  bargaining agreement.  Removing  it doesn't  diminish                                                               
the  investigation.  Investigations  do take  place  with  higher                                                               
command staff. "The issue of  confidentiality avoids the possible                                                               
politicizing  of  complaints that  might  come  up from  time  to                                                               
9:53:14 AM                                                                                                                    
SENATOR FRENCH asked about the effect of removing Section 2.                                                                    
MR. MARSHALL said the intent  is to provide feedback to citizens.                                                               
The agreement  and the statute  would provide the means  by which                                                               
the DPS  could say the  complaint was received and  what happened                                                               
after the investigation.                                                                                                        
SENATOR FRENCH  asked if  Mr. Marshal  wants that  disclosure and                                                               
communication confidential.                                                                                                     
MR. MARSHALL  said, "No ...  if you take  out Section 2,  I think                                                               
that  disclosure can  be made  as its  being made  now under  the                                                               
current procedure." There has been  testimony that complaints are                                                               
being  filed  now. There  is  a  "report  back"  on the  part  of                                                               
captains and higher to those  filing the complaint. "They've been                                                               
heard; they've  been checked in  to, and the ...  complainant can                                                               
be assured that something was done."                                                                                            
9:55:23 AM                                                                                                                    
SENATOR  FRENCH  said  it  is  not clear  at  all  that  that  is                                                               
happening. The committee  has not heard that. We need  to get the                                                               
commissioner here  to say that  those citizens are called  at the                                                               
end. "I don't think that is the record."                                                                                        
MR. MARSHALL said officers tell  him that the feedback process is                                                               
in  place. It  is not  the procedures  that fail  many times,  it                                                               
could be the people that fail. "But I believe they do that."                                                                    
SENATOR FRENCH  said then this  bill is  redundant - there  is no                                                               
reason to oppose the bill because it is already happening.                                                                      
MR. MARSHALL said that is what he has argued.                                                                                   
SENATOR FRENCH  said that is not  what Mr. Cox's letter  says. He                                                               
urged him to read the letter.                                                                                                   
9:56:43 AM                                                                                                                    
SENATOR  PASKVAN   asked  if  Mr.   Marshall  has   trouble  with                                                               
disclosing the report to the  public. Instead, the complainant is                                                               
told that  the complaint justified  the investigation, but  he or                                                               
she  is not  told  -  because of  confidentiality  issues -  what                                                               
actual result occurred. Is that what you are saying?                                                                            
MR. MARSHALL said that is much  better. The issue is what "valid"                                                               
means.  Are all  complaints  valid,  or will  there  be a  higher                                                               
threshold? The meaning  of valid is very broad, and  it should be                                                               
narrowed it to a point that is better understood by all parties.                                                                
9:58:54 AM                                                                                                                    
SENATOR PASKVAN asked about oversight outside of the department.                                                                
MR. MARSHALL  said he  is not aware  of any  investigative effort                                                               
outside of  the department. Commissioner  Masters is  putting the                                                               
Office  of Professional  Standards in  place with  two staff  for                                                               
dealing  with  internal  issues.  They will  be  responsible  for                                                               
dealing with complaints.                                                                                                        
SENATOR KOOKESH  asked if  Mr. Marshall is  saying that  he wants                                                               
disclosures made  to a complaint under  AS18.65.120 to disappear.                                                               
So if a complaint is  found valid, Mr. Marshall wants disclosures                                                               
made  under this  section  to be  confidential.  "You don't  want                                                               
anybody to know about it."                                                                                                      
MR.  MARSHALL   said  he  wants   the  complainant  to   get  the                                                               
information that is listed in Section 1.                                                                                        
10:01:00 AM                                                                                                                   
SENATOR KOOKESH  said that is where  the public has the  right to                                                               
know. That  overrides confidentiality rights. If  a peace officer                                                               
is doing  something wrong  and it is  kept confidential,  then we                                                               
have a  problem. Getting rid  of the confidential section  in the                                                               
bill won't  solve the  problem. Peace officers  are subject  to a                                                               
certain standard, like everyone in this state.                                                                                  
10:01:44 AM                                                                                                                   
MR.  MARSHALL  said the  union  agrees  that officers  should  be                                                               
punished for  violating any kind  of legal or moral  standard. He                                                               
would like to work with  the committee. With a clearer definition                                                               
like Senator  Paskvan offered,  we can deal  with the  release of                                                               
that information.                                                                                                               
SENATOR FRENCH  said he appreciates  the remarks, and  he doesn't                                                               
feel like this bill is on a  fast track. He will continue to work                                                               
with the  commissioner. It is a  touchy subject, and he  will try                                                               
to get to something that works.                                                                                                 
CHAIR MENARD  said the  new professional  standards office  has a                                                               
lot of  validity. In the meantime,  the state needs to  deal with                                                               
something that has happened in the past.                                                                                        
10:03:38 AM                                                                                                                   
MR. MARSHALL  said the  union wants  to work on  this. It  is not                                                               
SENATOR MEYER asked if Senator Paskvan had an amendment.                                                                        
SENATOR  PASKVAN said  he is  struggling with  the definition  of                                                               
valid. So  the question is  if the  response doesn't have  to use                                                               
the term "valid," but that the investigation was warranted.                                                                     
10:05:28 AM                                                                                                                   
SENATOR FRENCH said he has struggled  with that word as well. The                                                               
bill goes  to judiciary next, and  it will likely stay  there for                                                               
awhile. It can be worked on.                                                                                                    
SENATOR MEYER said  he is not comfortable that  the bill balances                                                               
the rights of the troopers and  the public. He is willing to help                                                               
improve it.                                                                                                                     
SENATOR KOOKESH  said he is satisfied  with the bill, but  he can                                                               
work with the members. Not everyone can be satisfied.                                                                           
10:07:05 AM                                                                                                                   
CHAIR MENARD asked for a motion.                                                                                                
SENATOR MEYER  said he is not  excited about it, but  he moved to                                                               
report   CS   for   SB  19   from   committee   with   individual                                                               
recommendations  and  attached  fiscal note(s).  There  being  no                                                               
objection, CSSB 19(CRA) moved out of committee.                                                                                 

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