Legislature(2003 - 2004)
04/15/2004 12:25 PM House EDU
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ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON EDUCATION
April 15, 2004
12:25 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Paul Seaton, Vice Chair
Representative Dan Ogg
Representative Kelly Wolf
Representative Les Gara
MEMBERS ABSENT
Representative Peggy Wilson
Representative Mary Kapsner
COMMITTEE CALENDAR
HOUSE BILL NO. 551
"An Act relating to the issuance of teacher certificates to and
revocation of teacher certificates of persons convicted of
felony drug offenses and to the issuance of limited teacher
certificates to persons convicted of certain crimes involving a
minor and felony drug offenses."
- MOVED HB 551 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 551
SHORT TITLE: DRUG FELONY DISQUALIFIES TEACHER
SPONSOR(S): JUDICIARY
04/05/04 (H) READ THE FIRST TIME - REFERRALS
04/05/04 (H) EDU, JUD
04/13/04 (H) EDU AT 11:00 AM CAPITOL 124
04/13/04 (H) Scheduled But Not Heard
04/15/04 (H) EDU AT 11:00 AM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE LESIL McGUIRE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as Chair of the House Judiciary
Standing Committee which sponsored HB 551, and answered
questions from the members.
RYAN MAKINSTER, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified on HB 551 and answered questions
from the members.
ACTION NARRATIVE
TAPE 04-20, SIDE A
Number 0001
CHAIR CARL GATTO called the House Special Committee on Education
meeting to order at 12:25 p.m. Representatives Gatto, Seaton,
Ogg, and Wolf were present at the call to order. Representative
Gara arrived as the meeting was in progress.
HB 551-DRUG FELONY DISQUALIFIES TEACHER
Number 0050
CHAIR GATTO announced that the only order of business would be
HOUSE BILL NO. 551, "An Act relating to the issuance of teacher
certificates to and revocation of teacher certificates of
persons convicted of felony drug offenses and to the issuance of
limited teacher certificates to persons convicted of certain
crimes involving a minor and felony drug offenses."
Number 0077
REPRESENTATIVE OGG moved to adopt HB 551, Version A, 23-
LS1889\A, Craver, 3/29/04, as the working document. There being
no objection, Version A was before the House Special Committee
on Education.
REPRESENTATIVE OGG moved to report HB 551 out of committee with
individual recommendations and the accompanying fiscal notes.
Number 0089
REPRESENTATIVE SEATON objected for purposes of discussion.
REPRESENTATIVE OGG told the members that he is speaking on
behalf of the Chair of the House Judiciary Standing Committee in
presenting this bill. He explained that this bill came about
because of an incident that occurred recently in Anchorage where
a teacher had been arrested on felony drug charges and was still
allowed to teach. This caused great concern in the community.
As a result of this incident, it was discovered that there is a
loophole in Alaska statutes which allows someone convicted of
misconduct involving a controlled substance to continue to teach
in Alaska's schools. He clarified that in the incident which
spurred this interest, the teacher had not been convicted. The
House Judiciary Standing Committee believes that this law should
be changed to address this loophole and ensure that individuals
convicted of this charge would not be allowed to continue to
teach.
CHAIR GATTO commented that legally a person charged with
misconduct involving a controlled substance would be allowed to
continue to teach because the laws of this country say an
individual is innocent until proven guilty. He asked how this
would be handled. Chair Gatto commented that if the person is
convicted he/she would be in jail so presence in the classroom
at that point is not an issue.
Number 0307
REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature,
testified as Chair of the House Judiciary Standing Committee,
which sponsored HB 551 and answered questions from the members.
CHAIR GATTO referred to page 1, lines 1 through 4, which reads
as follows:
"An Act relating to the issuance of teacher
certificates to and revocation of teacher certificates
of persons convicted of felony drug offenses and the
issuance of limited teacher certificates to persons
convicted of certain crimes involving a minor and
felony drug offenses."
CHAIR GATTO commented that he is concerned with the term
"convicted" on line 2. He said in this case if a teacher is not
yet convicted, but caught with a smoking gun, he/she would still
have the privilege of remaining in the classroom.
REPRESENTATIVE McGUIRE replied that is correct. The law says
that a person is innocent until proven guilty. It is important
when considering penalties such as removing someone from the
work place or not allowing an individual to participate that it
is handled in the right way. She clarified that if an
individual had been charged with a crime, but not yet convicted,
then this bill would not apply to that individual.
Number 0402
REPRESENTATIVE SEATON said he believes this bill only covers the
revocation of the teaching certificate, but the school district
could take whatever administrative action it wished during the
interim [while charges are pending].
Number 0416
CHAIR GATTO agreed with Representative Seaton. The typical
action that is taken in a circumstance such as this is to place
the individual on administrative leave. That gets the
individual out of the classroom, out of the building, and off
the property. He added that he knows that this is done in the
fire department or police department. Normally, this does not
imply that the person is guilty, he said. The public is very
protective of their students and would not want that person in
the classroom. Chair Gatto summarized that he believes the
expectation is higher based upon the field in which an
individual works, such as teachers.
CHAIR GATTO announced for the record that Representative Gara
has joined the meeting.
Number 0605
REPRESENTATIVE GARA said he understood there would be amendments
considered by the sponsor of the bill and asked if they had been
provided to the members yet.
REPRESENTATIVE McGUIRE responded that there was a discussion
about whether the amendments would be presented in the House
Special Committee on Education or the House Judiciary Standing
Committee. It was decided to present the amendments in House
Judiciary Standing Committee, she said.
CHAIR GATTO asked if Representative McGuire could briefly go
over the amendments that will be presented.
Number 0675
RYAN MAKINSTER, Staff to Representative Lesil McGuire, Alaska
State Legislature, testified on HB 551 and answered questions
from the members. He explained that after speaking with school
board members and other education officials a situation was
brought to Representative McGuire's attention where a teacher
who was guilty of a class three or class four felony early in
life could have his/her ability to teach taken away. In a case
where an individual made a mistake as a youth, then overcame
his/her problems, and was rehabilitated, it would be unfortunate
to deny him/her the ability to teach. The thought is that class
three and class four felonies would be removed from the bill and
all that would remain in the bill is class one and two felonies,
he said. These are basically serious felonies which would
include manufacturing controlled substances or selling
controlled substances at a criminal enterprise level, he added.
Number 0731
CHAIR GATTO asked if this would include manufacturing controlled
substances but with no connection to students or minors.
MR. MAKINSTER stated that a second degree felony includes
manufacturing without minors involved. That offense would still
be contained in the bill.
Number 0784
REPRESENTATIVE SEATON commented that he does not see any
reference to an offense involving a minor in the bill.
MR. MAKINSTER responded that the way the bill is written now it
does not specifically address offenses involving a minor, with
the exception that in a first-degree felony definition it refers
to a controlled substance felony where a person is delivering to
a person under 19 years of age.
REPRESENTATIVE SEATON commented that is not the only offense
under a class one felony. He asked for a review of felony
classes.
Number 0879
REPRESENTATIVE McGUIRE responded as follows:
On page 1 of the bill, lines 9 and 10, Representative
Seaton is correct. We are talking about misconduct
involving a controlled substance and then what we do
is refer the series of statutes going all the way up
to just prior to a fifth level offense. So 11.71.010
starts with misconduct involving a controlled
substance in the first degree and goes all the way to
11.71.040, which comes up to misconduct involving a
controlled substance in the fourth degree. Within
each of the degrees you have a series of things that
are laid out. Within that, Ryan is correct. It can
be delivering an amount of lower scheduled drugs, 2A
or 3A, to a person who is at least 19, if you are 19,
to a person who is at least three years younger than
the person. And that is contained within each one of
these levels.
Number 0980
So one of the things that I want to point out to the
committee that I will be curious to explore in
judiciary is whether or not if we eliminate the fourth
and third degree felonies, we might want to keep in
those elements of that degree that involved
distribution to someone who is a minor. And that is
something that I want to consider and have not
explored yet. So...Ryan is accurate that the school
district and school board were concerned that when you
are talking about misconduct involving a controlled
substance in the third degree and fourth degree, it
could be something like marijuana and lets say you had
large quantities of it, not huge amounts like you
would have in first degree and second degree, but
large enough quantities. Lets say you were 19 years
old and made a mistake. That could be on your record
and bar you from teaching forever. So that is the
concern they have raised and I think that there is
some merit to what they are saying. That said, the
part about the third degree and fourth degree crimes
that I might want to consider retaining would be the
part that talks about delivering, for example, in
misconduct involving a controlled substance in the
third degree. It still includes delivery of any
amount of a schedule IVA, VA, VIA controlled substance
to a person under 19 years of age who is at least
three years younger than the person delivering the
substance. That crime concerns me in particular
because these are folks that are going to be in the
classroom around young people. So that is something
to think about.
Number 1118
I can make this available to you, Representative
Seaton. It's fairly exhaustive area of the law that
kind of goes through a bunch of different subsections
for things that you can be doing. It is clear, in my
opinion, that first degree and second degree ought to
be in, but when you start to get to the third and
fourth degree, I'd be interested to have the debate.
Number 1123
REPRESENTATIVE GARA commented that he generally agrees with
Representative McGuire. He said that the categories that he
would be comfortable saying an individual should not teach are
the ones where the individual has sold or dealt [controlled
substances] in a school zone. Representative Gara went on to
say that he sees it less important to include a younger person
who has [been convicted of] possessing or using drugs, but then
rehabilitates himself/herself. There is middle ground of those
who manufacture controlled substances. He admitted that he does
not know enough about drugs to know what that is.
Representative Gara said he is not sure if there are some drugs
that would be manufactured for a person personal use. If there
are, he said he believes that is very much like possession of
drugs. Representative Gara told the members that the selling
and distribution of controlled substances is the conduct that is
most disturbing to him. It is what makes an individual a risk
to children, he added.
Number 1237
CHAIR GATTO asked if the "look back" issue is addressed in the
bill. For example, if an individual who is 17 years old,
snorted cocaine, got caught, and is now 34, has a teaching
certificate, a family, and gets discovered, will that person
have their teaching certificate revoked.
REPRESENTATIVE McGUIRE replied that is a great question. The
way the bill stands right now that is not addressed. She said
that with the exception of the area of drunk driving she is not
aware of any look backs in the criminal code. Representative
McGuire told the members that if an individual is convicted of a
crime as an adult it will count against the person as an
offense. If an individual is convicted of a crime as minor, it
depends on the circumstances. For example, if it is a sex crime
there is the ability to look back to that in certain
circumstances. She told the members that she is not aware of an
offense being held against an individual for something that was
done as a minor. An offense on an adult's record is held
against an individual, she reiterated.
Number 1373
REPRESENTATIVE McGUIRE agreed with Representative Gara's view
that the House Judiciary Standing Committee will have to go
through each one of these [felony] categories between the first
and fourth degree and pick out the types of behaviors that
should be discouraged. She cautioned that there needs to be
care when the defense says that a lot of the drugs were being
produced for self-consumption. Unless an individual is caught
in the transaction, it is fairly difficult to prove that the
drugs were being produced for sale. Sometimes the criminal code
will look at the amount of drugs because it is not plausible
that a person could be consuming the amount of drugs being
produced. In summary, she said that she believes most of the
things in the first and second degree [felony] will stay in and
probably only the things in the third degree that stand out as
distribution to a minor.
CHAIR GATTO commented that he believes any distribution of drugs
ultimately gets to minors.
REPRESENTATIVE SEATON agreed with Representative Gara's earlier
comments. He expressed concern that a person's personal conduct
with respect to a controlled substance, such as alcohol, would
be taken to a higher level. Representative Seaton said he would
like the focus to stay on detrimental behaviors that put kids at
risk through distribution or encouraging bad behavior.
Number 1551
REPRESENTATIVE McGUIRE assured Representative Seaton that she is
on the same philosophical tract. It is not her intent in
introducing this bill to penalize purely personal conduct that
may or may not be offensive to some people in their own home and
in a way that is not harming others. She emphasized that the
purpose of this bill is to get at the higher-level crimes where
there is manufacturing and distributing of drugs in a way that
jeopardizes the teacher's role in the classroom.
REPRESENTATIVE McGUIRE commented that there was an opinion that
came down in November, the Noy opinion, that reaffirms the fact
that because of a right to privacy in our constitution an
individual has the right to grow marijuana, smoke it at home,
whether or not the legislature says it can't be done.
CHAIR GATTO agreed that if the legislature passes legislation
that interferes with the right to privacy, it will go to court
and be [over turned]. The goal of this bill is to protect
minors from teachers who could have a detrimental effect on
students.
Number 1669
REPRESENTATIVE GARA commented that if the bill is less inclusive
in the charges that a certificate will be denied under this
bill, the individual will still have to go through an interview
process with the school district where the details of the
criminal charge may be discussed. He reiterated that
individuals still have to be fingerprinted and undergo a
background check to obtain a teaching certificate.
CHAIR GATTO agreed with Representative Gara that teachers would
be caught in the interview process. He told the members that in
his district the human resources departments does a very
thorough check on teacher applicants. In fact, there has never
been an instance in eight years where a fingerprint or
background check came back that would indicate anything was
missed in the interview process, he said.
CHAIR GATTO pointed out that Representative Gara had Alaska
Statute 11.71.010 related to controlled substances copied and
provided to the members.
REPRESENTATIVE McGUIRE directed the members to look at Sec.
11.71.020, and read the following:
Misconduct involving a controlled substance in the
second degree. (1) manufactures or delivers any
amount of a schedule IA controlled substance or
possesses any amount of a schedule IA controlled
substance with intent to manufacture or deliver;
REPRESENTATIVE McGUIRE went on to say the Mr. Makinster pointed
out that the manufacturing part of this statute refers only to
methamphetamines. She said that is probably because of the
serious nature of methamphetamines which would rise to a
different level.
CHAIR GATTO commented that House Special Committee on Education
is really interested in this legislation in terms of policy. He
said he believes it is more appropriate to have the House
Judiciary Standing Committee scrutinize the legal aspects of the
bill.
Number 1955
REPRESENTATIVE SEATON told the members that he is comfortable
with the assurances of the chair of the House Judiciary Standing
Committee that the bill will be refined. He removed his
objection.
Number 2001
CHAIR GATTO said there being no further objection, HB 551 was
reported out of the House Special Committee on Education.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Education meeting was adjourned at 12:55
p.m.
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