Legislature(1993 - 1994)

03/08/1993 01:00 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                          March 8, 1993                                        
                            1:00 p.m.                                          
  MEMBERS PRESENT                                                              
  Rep. Brian Porter, Chairman                                                  
  Rep. Jeannette James, Vice-Chair                                             
  Rep. Gail Phillips                                                           
  Rep. Pete Kott                                                               
  Rep. Jim Nordlund                                                            
  Rep. Joe Green                                                               
  Rep. Cliff Davidson                                                          
  OTHER MEMBERS PRESENT                                                        
  Rep. Eileen MacLean                                                          
  COMMITTEE CALENDAR                                                           
  HB 62:    "An Act prohibiting employers from discriminating                  
            against individuals who use legal products in a                    
            legal manner outside of work."                                     
            HEARD AND HELD FOR FURTHER CONSIDERATION                           
  HB 147:   "An Act relating to the disclosure of information                  
            by an employer about the job performance of an                     
            employee or former employee."                                      
            HEARD AND HELD FOR FURTHER CONSIDERATION                           
  HB 181:   "An Act relating to the state's right to appeal in                 
            criminal cases; relating to sentence appeals;                      
            amending Rule 202 of the Alaska Rules of Appellate                 
            Procedure; and providing for an effective date."                   
            PASSED OUT WITH A DO PASS RECOMMENDATION                           
  (* First public hearing.)                                                    
  WITNESS REGISTER                                                             
  REP. BEN GRUSSENDORF                                                         
  Alaska State Legislature                                                     
  Capitol Building, Room 415                                                   
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-3824                                                             
  Position Statement:  Prime Sponsor of HB 62                                  
  MIKE MCMULLEN                                                                
  Manager, System Services                                                     
  Division of Personnel/EEO                                                    
  Department of Administration                                                 
  P.O. Box 110201                                                              
  Juneau, Alaska 99811-0201                                                    
  Phone:  465-4430                                                             
  Position Statement:  Opposed HB 62; Supported HB 147                         
  RENA BUKOVICH                                                                
  Legislative Aide                                                             
  Rep. Eileen MacLean                                                          
  Alaska State Legislature                                                     
  Capitol Building, Room 507                                                   
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-4833                                                             
  Position Statement:  Represented Prime Sponsor of HB 147                     
  JAMIE PARSONS                                                                
  Alaska State Chamber of Commerce                                             
  217 Second Street, Suite 201                                                 
  Juneau, Alaska 99801                                                         
  Phone:  586-2323                                                             
  Position Statement:  Supported HB 147                                        
  RESA JERREL                                                                  
  National Federation of Independent Businesses                                
  9159 Skywood                                                                 
  Juneau, Alaska 99801                                                         
  Phone:  789-4278                                                             
  Position Statement:  Supported HB 147                                        
  WILLIE ANDERSON                                                              
  National Education Association-Alaska                                        
  114 Second Street                                                            
  Juneau, Alaska 99801                                                         
  Phone:  586-3090                                                             
  Position Statement:  Commented on HB 147                                     
  GAYLE HORETSKI                                                               
  Committee Counsel                                                            
  House Judiciary Committee                                                    
  Capitol Building, Room 120                                                   
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-6841                                                             
  Position Statement:  Discussed HB 181                                        
  DOUG RICKEY                                                                  
  Legislative Aide                                                             
  Rep. Ben Grussendorf                                                         
  Alaska State Legislature                                                     
  Capitol Building, Room 415                                                   
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-3824                                                             
  Position Statement:  Discussed HB 62                                         
  MARGOT KNUTH                                                                 
  Assistant Attorney General                                                   
  Criminal Division                                                            
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska 99811-0300                                                    
  Phone:  465-3428                                                             
  Position Statement:  Discussed HB 181                                        
  PREVIOUS ACTION                                                              
  BILL:  HB  62                                                                
  BILL VERSION: CSHB 62(JUD)                                                   
  SPONSOR(S): REPRESENTATIVE(S) GRUSSENDORF                                    
  TITLE: "An Act prohibiting employers from discriminating                     
  against individuals who use legal products in a legal manner                 
  outside of work."                                                            
  JRN-DATE    JRN-PG                     ACTION                                
  01/15/93        74    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/15/93        74    (H)   LABOR & COMMERCE, JUDICIARY                      
  02/16/93              (H)   L&C AT 03:00 PM CAPITOL 17                       
  02/16/93              (H)   MINUTE(L&C)                                      
  02/17/93       358    (H)   L&C RPT  4DP  2NR                                
  02/17/93       358    (H)   DP: SITTON, MULDER, WILLIAMS,                    
  02/17/93       358    (H)   NR: PORTER, GREEN                                
  02/17/93       358    (H)   -2 ZERO FNS (ADM, LABOR) 2/17/93                 
  03/08/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  BILL:  HB 147                                                                
  BILL VERSION:                                                                
  SPONSOR(S): REPRESENTATIVE(S) MACLEAN,Phillips,Porter                        
  TITLE: "An Act relating to the disclosure of information by                  
  an employer about the job performance of an employee or                      
  former employee."                                                            
  JRN-DATE    JRN-PG                     ACTION                                
  02/10/93       292    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/10/93       292    (H)   L&C, JUDICIARY                                   
  02/25/93              (H)   L&C AT 03:00 PM CAPITOL 17                       
  02/25/93              (H)   MINUTE(L&C)                                      
  03/01/93       480    (H)   L&C RPT  5DP                                     
  03/01/93       481    (H)   DP: PORTER, MACKIE, WILLIAMS,                    
                              GREEN, HUDSON                                    
  03/01/93       481    (H)   -3 ZERO FNS (ADM, COURT, LAW)                    
  03/01/93       481    (H)   REFERRED TO JUDICIARY                            
  03/08/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  BILL:  HB 181                                                                
  SHORT TITLE: APPEALS IN CRIMINAL CASES                                       
  BILL VERSION: HB 181 AM                                                      
  SPONSOR(S): JUDICIARY                                                        
  TITLE: "An Act relating to the state's right to appeal in                    
  criminal cases; relating to sentence appeals; amending Rule                  
  202 of the Alaska Rules of Appellate Procedure; and                          
  providing for an effective date."                                            
  JRN-DATE    JRN-PG                     ACTION                                
  02/25/93       455    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/25/93       456    (H)   JUDICIARY, FINANCE                               
  03/08/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  ACTION NARRATIVE                                                             
  TAPE 93-28, SIDE A                                                           
  Number 000                                                                   
  The House Judiciary Standing Committee meeting was called to                 
  order at 1:12 p.m. on March 8, 1993.  A quorum was present.                  
  CHAIRMAN PORTER announced that three bills were before the                   
  committee:  HB 62, HB 147 and HB 181.  He noted that the                     
  committee would address HB 62 first.                                         
  HB 62 - EMPLOYEE'S RIGHT TO USE LAWFUL PRODUCTS                              
  Number 027                                                                   
  REP. BEN GRUSSENDORF, PRIME SPONSOR OF HB 62, commented that                 
  some people were so health-conscious that they wanted to                     
  carry those attitudes over into the homes of their                           
  employees.  He noted that he never thought that he would see                 
  the day that a bill like HB 62 would be necessary.  He said                  
  HB 62 provided that an employee, in the privacy of her or                    
  his own home, or in any other place where they were not                      
  associated with their employer, could use any lawful                         
  products that they desired.                                                  
  REP. GRUSSENDORF commented that the bill specifically                        
  provided that if use of the lawful products affected an                      
  employee's job performance, that was grounds for dismissal.                  
  He noted that the "bottle to throttle" policy of some                        
  airlines, in which pilots were not to drink within 12 hours                  
  of flying, was reasonable.  He noted that he had heard a                     
  number of complaints and concerns about company policies                     
  that went too far.                                                           
  REP. GRUSSENDORF explained that nothing in HB 62 ran counter                 
  to public health.  He said that religious corporations were                  
  exempt from the provisions of HB 62.  In summary, he said                    
  that HB 62 was a very straightforward, simple piece of                       
  legislation which was unfortunately necessary.                               
  Number 114                                                                   
  REP. PHILLIPS asked Rep. Grussendorf why he felt it was                      
  necessary for the legislature to pass HB 62.                                 
  Number 121                                                                   
  REP. GRUSSENDORF replied that some companies had policies                    
  which discriminated against employees who used lawful                        
  products.  He noted that HB 62 would not prohibit companies                  
  from charging employees who used certain lawful products                     
  higher rates for health insurance.                                           
  Number 157                                                                   
  REP. PHILLIPS asked Rep. Grussendorf if HB 62 would impact                   
  an employee who lived in a work camp.                                        
  Number 170                                                                   
  REP. GRUSSENDORF responded that HB 62 addressed "places                      
  other than the work site or premise of the employer."  He                    
  said that, in his interpretation, the existing rules in work                 
  camps would not be changed by HB 62.                                         
  Number 191                                                                   
  REP. PHILLIPS indicated her desire to make sure that Rep.                    
  Grussendorf's interpretation was correct.                                    
  Number 200                                                                   
  REP. JAMES asked Rep. Grussendorf if he had ever been an                     
  Number 203                                                                   
  REP. GRUSSENDORF said he had been a crew chief, but not a                    
  true employer.                                                               
  Number 212                                                                   
  REP. JAMES commented that she was opposed to the unfair                      
  treatment of any person for any reason.  However, she said                   
  that Rep. Grussendorf, as a non-employer, might not be able                  
  to understand the rationale behind companies being able to                   
  choose who they hired.  She expressed her concern that                       
  government should not take all of an employer's options away                 
  with regard to who that employer would hire and fire.                        
  Number 226                                                                   
  REP. GRUSSENDORF commented that it would be very difficult                   
  to refuse to hire someone based on the use of lawful                         
  products.  He noted his concern about the treatment of                       
  employees after they had been hired.                                         
  Number 236                                                                   
  REP. JAMES stated that the bill said "may not refuse to                      
  hire."  She asked about an employer who owned a business                     
  which counseled people to quit smoking.  She asked if that                   
  sort of business should be able to refuse to hire someone                    
  who smoked.                                                                  
  Number 245                                                                   
  REP. GRUSSENDORF cited exemptions included in HB 62,                         
  including religious corporations, associations, educational                  
  institutions, and societies.  He commented that the example                  
  that Rep. James had offered would probably be considered an                  
  educational institution.                                                     
  Number 260                                                                   
  REP. GRUSSENDORF commented that an amendment being offered                   
  by the Department of Administration would gut HB 62.                         
  Number 292                                                                   
  MIKE MCMULLEN, of the DEPARTMENT OF ADMINISTRATION,                          
  testified in opposition to HB 62.  He offered an amendment                   
  to the bill, which he felt would adequately address the                      
  department's concerns with the bill.  He said that                           
  currently, the state and all other employers could take                      
  disciplinary action against an employee for off-duty conduct                 
  when the employer could demonstrate a close relationship                     
  between that conduct and the employee's job performance.                     
  Number 320                                                                   
  MR. MCMULLEN said that employers could establish reasonable                  
  rules for off-duty conduct and enforce them, as long as they                 
  could demonstrate the aforementioned close relationship.  He                 
  noted that some employees could not be separated from their                  
  employment identity.  He mentioned that if the head of the                   
  state's Office of Alcoholism and Drug Abuse were to                          
  habitually drink excessively and publicly while off-duty,                    
  the state would want to be able to take disciplinary action.                 
  Number 330                                                                   
  MR. MCMULLEN stated that HB 62 would cause the state to give                 
  up the ability that it now enjoyed to take disciplinary                      
  action against employees based on their off-duty conduct.                    
  He noted that his amendment would serve as an exemption to                   
  provisions of HB 62.                                                         
  Number 357                                                                   
  REP. PHILLIPS asked if HB 62 pertained to lawful products                    
  only or also to lawful activities.  As a hypothetical                        
  example, she cited a state employee who worked for a                         
  division that worked with children who moonlighted as a                      
  Number 387                                                                   
  REP. DAVIDSON asked if HB 62 was before the committee.                       
  CHAIRMAN PORTER indicated that HB 62 was indeed before the                   
  Number 400                                                                   
  REP. DAVIDSON made a motion to move HB 62 out of the                         
  Judiciary Committee with individual recommendations.  There                  
  was objection.                                                               
  REP. DAVIDSON commented that modern American society was                     
  going after individual rights more and more.  He said if                     
  employers were going to try to dictate to employees what                     
  lawful products they could and could not consume in the                      
  privacy of their own homes, he feared for future                             
  generations.  For that reason, he said, he supported moving                  
  HB 62 out of committee.  He noted that he had been an                        
  employer in the past.  He said he agreed with HB 62's                        
  sponsor that the Department of Administration's amendment                    
  would gut the bill.                                                          
  Number 440                                                                   
  REP. JAMES indicated her support for the intentions of HB
  62.  She expressed her concern that when government tried to                 
  legislate every small situation that occurred, larger                        
  problems were created than those that government had                         
  attempted to solve.  She stated that more and more                           
  restrictions were being placed on employers.  She said she                   
  would like to see the elements of HB 62 accomplished without                 
  legislation.  She agreed that a problem existed, but said it                 
  was her opinion that HB 62 would create more problems than                   
  it solved.                                                                   
  REP. JAMES expressed her opinion that an employer did not                    
  have the right to tell an employee what to do or not do on                   
  that employee's off-duty time.  She stated that HB 62 would                  
  be a roadblock to jobs, however.                                             
  Number 495                                                                   
  CHAIRMAN PORTER commented that he did not favor the                          
  Department of Administration's amendment.  He said it was a                  
  close call for him, but he would support moving HB 62 out of                 
  Number 534                                                                   
  REP. DAVIDSON offered a hypothetical example of a                            
  legislative staffer who took RU486, if lawful, although her                  
  boss was opposed to abortion.  Could she be fired for that                   
  action, he asked?  He questioned when an individual's rights                 
  kicked in.                                                                   
  Number 577                                                                   
  REP. JAMES noted that labor laws were already very                           
  protective of employees, and HB 62 was therefore redundant.                  
  She reiterated her concern that legislation passed to remedy                 
  one small problem often resulted in the creation of more,                    
  larger problems.  She said she was not so concerned with HB
  62's impact on who an employer fired, but was concerned with                 
  its impacts on an employer's ability to hire whomever she or                 
  he wanted to hire.                                                           
  Number 616                                                                   
  REP. PHILLIPS indicated her desire to tighten up the bill's                  
  language regarding work sites.                                               
  CHAIRMAN PORTER announced that discussion of HB 62 would be                  
  suspended until Rep. Phillips' amendments could be prepared                  
  and distributed to the committee.  He announced that the                     
  committee would take up HB 147 next.                                         
  REP. KOTT moved to table the motion before the committee, to                 
  move out HB 62, until Rep. Phillips' amendment was                           
  officially offered.  No objection was heard, so the motion                   
  was tabled.                                                                  
  HB 147 - EMPLOYER'S LIABILITY FOR REFERENCE INFO                             
  Number 635                                                                   
  PRIME SPONSOR OF HB 147, explained the bill.   She stated                    
  that the bill would add a new section to the Code of Civil                   
  Procedure relating to job references, stating that an                        
  employer was presumed to be acting in good faith unless it                   
  was shown that a reference was knowingly false, deliberately                 
  misleading, given with malicious purpose, or violated the                    
  employee's civil rights.                                                     
  Number 650                                                                   
  MS. BUKOVICH commented that HB 147 was needed to encourage                   
  the exchange of information between a prospective employee                   
  and employer.  She said the courts were overburdened with                    
  libel and slander claims based on negative job interviews                    
  and unfavorable employment references.  She stated that many                 
  employers had stopped giving employment references entirely                  
  out of fear of lawsuits.  She noted that passage of HB 147                   
  was the number one priority of the Alaska State Chamber of                   
  Commerce.  She added that it was modeled after a Florida law                 
  which passed without opposition.  She noted that HB 147 was                  
  identical to HB 441, which passed the House unanimously the                  
  year before and died in the Senate Rules Committee.                          
  Number 660                                                                   
  REP. DAVIDSON asked Ms. Bukovich if the sponsor concurred                    
  with the amendment he was offering to HB 147.                                
  MS. BUKOVICH noted that Rep. MacLean did not oppose Rep.                     
  Davidson's amendment.                                                        
  Number 667                                                                   
  REP. KOTT asked Ms. Bukovich what the definition of                          
  "malicious purpose" was.                                                     
  Number 670                                                                   
  MS. BUKOVICH stated that "malicious purpose" meant acting                    
  with ill-will or with the intent to harm another individual.                 
  Number 685                                                                   
  COMMERCE (ASCC), testified in support of HB 147.  He said                    
  the bill would protect employers who received inquiries                      
  about the job performance of employees or former employees.                  
  He stated that under the bill's provisions an employer who                   
  provided reference information to another employer would be                  
  presumed to be acting in good faith.  Additionally, unless                   
  the reference could be shown to be knowingly false,                          
  deliberately misleading, and showing a lack of good faith,                   
  the employer could not be held liable for the disclosure or                  
  the consequences of the disclosure.                                          
  Number 700                                                                   
  MR. PARSONS noted that there was a relatively small                          
  applicant base in Alaska, and it was therefore imperative                    
  that employers be able to share information in good faith.                   
  He said sharing information entailed a risk that many                        
  employers could not afford to take.  He reiterated that                      
  passage of HB 147 was the number one priority of ASCC.                       
  Number 717                                                                   
  REP. JAMES asked when an employee's rights came into play                    
  under HB 147's provisions.                                                   
  Number 727                                                                   
  MR. PARSONS stated that as a small business owner, he                        
  treated the issue of employment reference disclosures                        
  seriously.  He said that under the Senate version of the                     
  bill, employees would have access to written references.                     
  Number 735                                                                   
  REP. JAMES questioned the need for HB 147.                                   
  Number 739                                                                   
  MR. PARSONS commented that there were many instances in                      
  which employers hired people "blindly" because other                         
  employers were afraid to disclose negative information about                 
  an employee.                                                                 
  Number 749                                                                   
  REP. JAMES asked if information did not get carried over                     
  because prospective employers did not ask questions, or                      
  because former or current employers did not provide the                      
  Number 750                                                                   
  MR. PARSONS replied that previous or current employers,                      
  because of the risks involved, did not want to disclose much                 
  information about an employee.                                               
  Number 760                                                                   
  REP. JAMES said she had not been aware that the problem                      
  existed.  She said that many people called her for                           
  references and she disclosed information about people who                    
  had worked for her.                                                          
  Number 763                                                                   
  REP. KOTT asked if the Department of Law was going to                        
  testify on HB 147.  He wondered if the situation addressed                   
  by HB 147 was already covered by "qualified privilege" laws.                 
  Number 768                                                                   
  CHAIRMAN PORTER noted that no representative of the                          
  Department of Law was available to testify on HB 147.  He                    
  noted that as both a public and private-sector employer, he                  
  had been advised to disclose very little information about                   
  employees due to the risk of liability involved.                             
  Number 778                                                                   
  REP. JAMES commented that labor laws were fairly strict.                     
  TAPE 93-28, SIDE B                                                           
  Number 000                                                                   
  RESA JERREL, representing the NATIONAL FEDERATION OF                         
  INDEPENDENT BUSINESSES (NFIB), testified in support of HB
  147.  She stated that on the 1993 NFIB member ballot, 83                     
  percent of respondents had supported this type of                            
  Number 020                                                                   
  MS. JERREL noted that in her former job she had been advised                 
  by an attorney to only verify her secretary's dates of                       
  employment, job title, and salary.  She said that if she                     
  could have, she would have given her secretary a poor                        
  reference.  She noted the growing nationwide problem of                      
  employers being sued by current and former employees over                    
  negative reference information.                                              
  Number 030                                                                   
  MS. JERREL noted that one of NFIB's members had said that                    
  she would love to be able to get factual information on                      
  prospective employees because of a high turnover rate and                    
  problems with employees stealing from the till.                              
  Number 053                                                                   
  REP. DAVIDSON asked Ms. Jerrel to further explain the                        
  situation involving the NFIB member further.                                 
  Number 062                                                                   
  MS. JERREL replied that the member said she spent a great                    
  deal of time hiring and firing people who abused drugs and                   
  alcohol and stole.  The member had added that if she could                   
  get factual information from former and current employers,                   
  she would save a lot of time and aggravation.                                
  Number 070                                                                   
  REP. DAVIDSON asked why factual information was unavailable                  
  MS. JERREL replied that, in the case of her former                           
  secretary, she assumed that the secretary's former employers                 
  had been advised not to disclose factual information.                        
  Number 075                                                                   
  REP. DAVIDSON asked Ms. Jerrel if she had ever confirmed                     
  that assumption.                                                             
  MS. JERREL responded that she had not.                                       
  Number 082                                                                   
  MIKE MCMULLEN, of the DEPARTMENT OF ADMINISTRATION,                          
  testified in support of HB 147.  He said that as a                           
  prospective employer, the state would like to know more                      
  about persons whom it was considering hiring.  He noted that                 
  currently, the state encountered former employers who were                   
  reluctant to reveal much about employees.  He said HB 147                    
  would give employers more freedom to disclose information                    
  about former employees.  He said HB 147 also would allow the                 
  state, as an employer, more freedom to disclose information                  
  about former employees.                                                      
  Number 120                                                                   
  REP. DAVIDSON asked if he would agree that HB 147 would                      
  immunize employers acting in good faith from civil action                    
  from former employees for disclosing information regarding a                 
  former employee's job performance.                                           
  MR. MCMULLEN said he agreed with that statement.                             
  Number 130                                                                   
  REP. DAVIDSON asked Mr. McMullen if he felt that it would be                 
  difficult to prove that an employer was acting in bad faith.                 
  Number 138                                                                   
  MR. MCMULLEN commented that the appropriate place to address                 
  that issue was in court.  He noted that under the bill a                     
  former employee would have a case against a former employer                  
  if the employer had given out incorrect information.                         
  Number 153                                                                   
  REP. DAVIDSON asked whether Mr. McMullen felt that HB 147                    
  would help or hinder an employee's attempt to prove that an                  
  employer had acted in bad faith.                                             
  Number 166                                                                   
  MR. MCMULLEN replied that he did not know that HB 147 would                  
  make any difference.                                                         
  Number 170                                                                   
  REP. DAVIDSON asked Mr. McMullen if he believed that HB 147                  
  would put an employee at a disadvantage, in the event that                   
  the employee was falsely given a bad reference.                              
  MR. MCMULLEN expressed his opinion that HB 147 would not                     
  affect an employee's attempts to prove that an employer had                  
  acted in bad faith.                                                          
  REP. DAVIDSON gave a hypothetical example in which Mr.                       
  McMullen had been fired from a job in Alaska and went to                     
  Florida to look for another job.  He asked Mr. McMullen if a                 
  former supervisor gave him a false bad evaluation, would                     
  HB 147 make it easier for him to prove that the employer had                 
  acted in bad faith?                                                          
  MR. MCMULLEN reiterated his opinion that his hypothetical                    
  case against his former employer would remain the same,                      
  regardless of whether or not HB 147 passed.                                  
  Number 194                                                                   
  REP. KOTT commented on the agreement that had been reached                   
  between the Anchorage School Board and former District                       
  Superintendent Thomas O'Rourke.  He said part of that                        
  agreement was that the school board would not convey any                     
  negative information to prospective employers of Mr.                         
  Number 202                                                                   
  CHAIRMAN PORTER noted that legal agreements could always be                  
  reached between an employer and an employee, and such                        
  agreements would not be prohibited by HB 147.                                
  Number 212                                                                   
  REP. DAVIDSON stated that such agreements would result in                    
  prospective employers not being protected against hiring bad                 
  employees, despite passage of HB 147.                                        
  Number 220                                                                   
  ALASKA (NEA-Alaska), expressed his organization's concerns                   
  about HB 147.  He questioned how an employee could prove                     
  that an employer had given out false information.                            
  Number 249                                                                   
  REP. PHILLIPS said she would have assumed that NEA-Alaska                    
  would have taken the opposite stand on HB 147 than it had.                   
  She indicated her surprise at Mr. Anderson's comments on the                 
  bill.  She asked, in the case of an elementary school hiring                 
  a new teacher, would it not be to the school's advantage to                  
  know of a teacher's background of sex offenses?                              
  Number 262                                                                   
  MR. ANDERSON agreed with Rep. Phillips.  He clarified NEA-                   
  Alaska's stand that they wanted to ensure that information                   
  passed on to a prospective employer was factual.  He said                    
  that, based on some comments that had been made in today's                   
  hearing, there was a danger of non-factual allegations being                 
  conveyed to a prospective employer.                                          
  Number 275                                                                   
  CHAIRMAN PORTER asked Mr. Anderson whether or not NEA-Alaska                 
  supported passage of HB 147.                                                 
  Number 280                                                                   
  MR. ANDERSON noted that if HB 147 did not pass, the current                  
  practice of a former employer conveying limited information                  
  about an employee likely would continue.  He said employers                  
  now commonly passed on information about employees, for                      
  which they had documentation.  If an employer did not have                   
  documentation, employers generally did not pass on                           
  information because of fears of liability.                                   
  Number 293                                                                   
  CHAIRMAN PORTER asked, if the employers to whom Mr. Anderson                 
  had referred had been advised to stop disclosing certain                     
  information, would they be likely to alter their practices?                  
  MR. ANDERSON replied that, in his opinion, they would likely                 
  alter their practices.                                                       
  Number 302                                                                   
  REP. GREEN commented that if HB 147 were to pass, and an                     
  employer received several positive references and one                        
  negative reference for a prospective employee, that would                    
  indicate that a personality conflict existed between the                     
  prospective employee and his or her one negative reference.                  
  He said that regardless of whether HB 147 passed, it was                     
  probably possible to take legal action against an employer                   
  for libel or slander.                                                        
  REP. GREEN noted that if he were an employer, he would want                  
  to know if a prospective employee had performed poorly on a                  
  previous job.  He expressed his belief that HB 147 would be                  
  of great advantage to employers, particularly school                         
  Number 331                                                                   
  MR. ANDERSON stated that he agreed with Rep. Green.  He said                 
  NEA-Alaska supported an employer's divulgence of factual                     
  information, positive or negative.  However, they were                       
  concerned that unproven allegations against an employee                      
  might also be transmitted to a prospective employer.                         
  Number 354                                                                   
  REP. DAVIDSON asked Mr. Anderson if he were aware of any                     
  instances of Alaska school employers being sued over                         
  employment references.                                                       
  Number 360                                                                   
  MR. ANDERSON said he had no knowledge of any such instance.                  
  Number 367                                                                   
  REP. DAVIDSON asked Mr. Anderson if he knew of any examples                  
  in Alaska in which teachers' employment records had been                     
  Number 370                                                                   
  MR. ANDERSON replied that no Alaska school district had been                 
  known to falsify a teacher's personnel record.  However, he                  
  said individuals had put down false information on job                       
  applications and had been fired when the misinformation came                 
  to light.                                                                    
  Number 380                                                                   
  REP. DAVIDSON questioned whether any employer had ever been                  
  sued for passing on accurate factual information to another                  
  Number 386                                                                   
  REP. JAMES noted her belief that Alaska already had a law                    
  which protected people who stated their suspicions that                      
  another person engaged in sexual abuse.                                      
  Number 395                                                                   
  MR. ANDERSON commented that public employee school teachers                  
  in Alaska were required to report suspicions of child abuse.                 
  Number 403                                                                   
  REP. JAMES asked, if a teacher was suspected of committing                   
  child sexual abuse, would that information be in a teacher's                 
  Number 408                                                                   
  MR. ANDERSON responded that a teacher's employer would be                    
  required to report such suspicions to the Division of Family                 
  and Youth Services (DFYS).                                                   
  REP. JAMES noted that this information might not then be                     
  passed on to a teacher's future employer.                                    
  MR. ANDERSON indicated that it would depend on the outcome                   
  of DFYS' investigation.  He said that a suspicion did not                    
  necessarily have basis in fact.  He noted his concern that                   
  an employer might tell another employer that an employee was                 
  investigated for child abuse and not tell the rest of the                    
  story:  that an investigation turned up no evidence of such                  
  Number 427                                                                   
  REP. NORDLUND said he could not imagine a situation in which                 
  information on a known child abuser was not passed on to a                   
  prospective employer.                                                        
  Number 431                                                                   
  REP. PHILLIPS noted that a situation like the one Rep.                       
  Nordlund described happened just the year before.                            
  REP. NORDLUND asked if passage of HB 147 would help to                       
  lessen the occurrence of such situations.                                    
  REP. PHILLIPS commented on a situation in an Anchorage high                  
  school.  The outcome of that situation, she noted, was an                    
  agreement that nothing about an alleged sexual contact with                  
  a student would appear in the teacher's record.                              
  Number 438                                                                   
  REP. NORDLUND noted that the individual about whom Rep.                      
  Phillips was speaking had not been convicted of a crime.  He                 
  stated that an allegation, later proven to be true, had been                 
  Number 445                                                                   
  REP. PHILLIPS stated that when the teacher was no longer                     
  hired by the school district, an agreement was made whereby                  
  the teacher was not prohibited from taking a job in another                  
  school district.                                                             
  REP. NORDLUND stated that there could be situations in which                 
  a person was falsely accused.  An employer who falsely                       
  believed accusations to be true could pass on that                           
  information to a prospective employer, who would then                        
  discriminate against the employee.                                           
  Number 453                                                                   
  REP. DAVIDSON explained his proposed amendment, which would                  
  insert on page 1, line 12, after the word "given":                           
  "negligently, recklessly, or".  He said that adding this                     
  language was the least that the committee could do to                        
  protect against individuals who would maliciously go after                   
  other individuals.  He noted that the sponsor of HB 147 did                  
  not object to his amendment.  He moved the amendment.                        
  Number 474                                                                   
  COMMITTEE, stated that it appeared that the language in HB
  147 was taken from a Florida law.  She called the members'                   
  attention to page 1, lines 10-14.  She said the bill was                     
  awkwardly written so as to indicate that information had a                   
  "culpable mental state."  She suggested rewriting the bill                   
  so as to indicate that the mental states referred to in the                  
  bill belonged to the employer.                                               
  Number 504                                                                   
  CHAIRMAN PORTER suggested that HB 147 be held in committee,                  
  and a committee substitute drafted to incorporate Rep.                       
  Davidson's amendment and to clarify the "mental state"                       
  language.  Hearing no objection, it was so ordered.                          
  Number 513                                                                   
  REP. DAVIDSON asked that the committee be given more                         
  information on lawsuits that made HB 147 necessary in the                    
  first place.  Also, he said he would like to know if Alaska                  
  had a complementary law which penalized employers for giving                 
  false reference information.                                                 
  Number 529                                                                   
  CHAIRMAN PORTER indicated that there was a wealth of                         
  information from representatives of employers that showed                    
  that HB 147 was necessary.                                                   
  Number 545                                                                   
  REP. DAVIDSON said he understood that a problem existed.                     
  However, he said that he wanted to know where it had been                    
  demonstrated, through the legal process, that a bill like                    
  HB 147 was needed.                                                           
  Number 551                                                                   
  CHAIRMAN PORTER announced that HB 147 would be brought                       
  before the committee again at the next available meeting.                    
  HB 62 - EMPLOYEE'S RIGHT TO USE LAWFUL PRODUCTS                              
  CHAIRMAN PORTER stated that the committee would again take                   
  up HB 62.  He called the committee members' attention to                     
  Rep. Phillips' proposed amendment.                                           
  REP. PHILLIPS stated that the amendment would go on page 2,                  
  after line 20.  She explained that it would clarify the                      
  definitions of a work site and the premises of an employer.                  
  She moved the amendment, but said that she would rather not                  
  act on the bill itself until she had heard from the sponsor                  
  of HB 62.                                                                    
  REP. DAVIDSON objected for purposes of discussion.  He said                  
  that perhaps Mr. Doug Rickey, staff to the sponsor of HB 62,                 
  could address the amendment.                                                 
  CHAIRMAN PORTER commented that he did not believe that the                   
  sponsor would object to Rep. Phillips' amendment.                            
  Number 578                                                                   
  that the only possible problem with the amendment might be                   
  that the definition of "work site" might not be what Rep.                    
  Phillips had intended.                                                       
  Number 594                                                                   
  REP. PHILLIPS stated that the definition reflected her                       
  intention exactly.  She said she was referring to mining                     
  camps, logging camps, and North Slope employment where                       
  everyone lived in one facility.                                              
  Number 600                                                                   
  REP. DAVIDSON stated that his understanding was that if an                   
  individual lived in housing in Juneau, owned by the Greens                   
  Creek Mine, that person could not drink in his or her own                    
  home if it were against the company's policy.                                
  Number 609                                                                   
  REP. PHILLIPS withdrew her motion to move the amendment.                     
  She said she would discuss her amendment with the bill's                     
  sponsor.  She asked that Ms. Horetski work on the amendment.                 
  Number 615                                                                   
  CHAIRMAN PORTER commented that it was his impression that if                 
  he were an employer, and provided housing for his employees,                 
  whether on the work site or not, he could set rules for                      
  behavior in the housing.                                                     
  Number 629                                                                   
  REP. KOTT asked Mr. Rickey if he knew of specific cases that                 
  demonstrated the need for HB 62.                                             
  Number 640                                                                   
  MR. RICKEY noted that several cases had received national                    
  television coverage.  He called the members' attention to an                 
  editorial in their packets which cited a New York Times                      
  report of 6,000 companies which refused to hire smokers.                     
  Number 645                                                                   
  REP. KOTT asked if there was a problem in Alaska that                        
  merited passage of HB 62.                                                    
  Number 654                                                                   
  MR. RICKEY replied that HB 62 was prophylactic in nature,                    
  intended to prevent problems in other areas of the nation                    
  from appearing in Alaska.                                                    
  TAPE 93-29, SIDE A                                                           
  Number 003                                                                   
  CHAIRMAN PORTER announced that HB 62 would be held to a time                 
  HB 181 - APPEALS IN CRIMINAL CASES                                           
  CHAIRMAN PORTER stated that HB 181 was the next item of                      
  business before the committee.                                               
  Number 020                                                                   
  MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, stated that HB 181                 
  would allow the state the same right to appeal from adverse                  
  decisions in criminal cases that the federal government had.                 
  She said that this right would stop at the point of double                   
  jeopardy.  She noted that if a criminal defendant was                        
  acquitted, that was the end of the case.                                     
  Number 030                                                                   
  MS. KNUTH said, currently, the state was allowed to obtain                   
  review from the Court of Appeals on adverse evidentiary                      
  rulings by filing a "petition for review."  She noted that                   
  80 to 90 percent of those petitions were granted.  She said                  
  the current procedure was two-fold and inefficient.  She                     
  commented that HB 181 would allow the state to "appeal"                      
  those evidentiary rulings.  She noted that only about twelve                 
  petitions for review were filed statewide per year.                          
  MS. KNUTH said the state wanted to be able to use the same                   
  procedure that defendants used when they were on the losing                  
  end of similar rulings.  She noted that  HB 181 was more of                  
  a cost-saving measure than a substantial change in policy                    
  for the state.                                                               
  Number 107                                                                   
  REP. PHILLIPS asked if other states had laws similar to                      
  HB 181.                                                                      
  Number 111                                                                   
  MS. KNUTH replied that she had not researched the laws of                    
  other states, but some states probably have laws which                       
  restricted the state's right to appeal beyond the                            
  requirements of the federal constitution.                                    
  Number 121                                                                   
  REP. DAVIDSON asked Ms. Knuth if she had said that HB 181                    
  would only impact about twelve cases per year.                               
  Number 125                                                                   
  MS. KNUTH indicated that Rep. Davidson was correct.  She                     
  said the workload of those twelve cases constituted half of                  
  one appellate attorney's workload in a year.                                 
  Number 145                                                                   
  REP. DAVIDSON commented that it seemed as if HB 181 was                      
  allowing the state the same opportunities that an individual                 
  defendant had.  He said he liked the idea of giving an                       
  individual some advantage over the resources of the state.                   
  Number 161                                                                   
  CHAIRMAN PORTER noted that HB 181 did not change the burden                  
  of proof, nor any of the other "heavy-duty" requirements                     
  that the state had in a criminal case.  He commented that HB
  181 would give the state the same privilege that defendants                  
  have.  He stated that defendants have 30 days from the date                  
  of a decision in which to file an appeal.  However, under                    
  existing law, the state only has ten days.  Additionally, he                 
  said, the state has several other hoops to jump through.                     
  Number 161                                                                   
  REP. DAVIDSON asked if it was possible for the state to                      
  receive an extension of the ten-day limit.                                   
  Number 195                                                                   
  MS. KNUTH responded that a defendant's appeal could be                       
  accomplished with one sheet of paper which stated an                         
  individual's intention to broach certain issues.  However,                   
  she said, the state's petition for review required an entire                 
  analysis of the issues.                                                      
  MS. KNUTH noted that either side could file a petition for                   
  review in the middle of a criminal trial.  But, she said,                    
  HB 181 would not affect those mid-trial petitions.  She                      
  noted that the bill would affect evidentiary rulings which                   
  resulted in the dismissal of a case.                                         
  MS. KNUTH said HB 181 would change the amount of energy                      
  required to get certain issues addressed by the appellate                    
  Number 255                                                                   
  REP. DAVIDSON said he was not convinced that hurried justice                 
  was fair justice.  He said he was not certain that HB 181                    
  was necessary.                                                               
  Number 266                                                                   
  REP. NORDLUND asked Ms. Knuth to comment on the twelve                       
  rulings regarding which petitions for review were filed in                   
  MS. KNUTH replied that ten petitions for review were filed,                  
  eight of which were granted, and two of which were denied.                   
  Two of the rulings were not petitioned.                                      
  Number 286                                                                   
  REP. NORDLUND asked why HB 181 did not result in a fiscal                    
  impact to the state.                                                         
  MS. KNUTH explained that the person who prepared the fiscal                  
  note probably addressed the issue of whether or not the bill                 
  would result in more appeals.  Because it would not result                   
  in more appeals, the preparer of the fiscal note probably                    
  assumed that it would not have a fiscal impact, she said.                    
  She stated that the fiscal note did not take into                            
  consideration the increased efficiency HB 181 would provide.                 
  Number 324                                                                   
  CHAIRMAN PORTER called the members' attention to a                           
  memorandum in their packets from CYNTHIA HORA of the                         
  DEPARTMENT OF LAW.  He said the memorandum indicated that HB
  181 would result in a smoother, more timely process for                      
  petitioning.  He said he was under the impression that the                   
  Department of Law sometimes did not file petitions, simply                   
  due to a lack of time.  However, with HB 181, time would be                  
  saved, and therefore more cases could be appealed.  That                     
  circumstance would probably result in a change in the type                   
  of work to be performed, but with a zero fiscal impact to                    
  the state.                                                                   
  Number 345                                                                   
  MS. HORETSKI commented that HB 181 was identical to the                      
  previous year's HB 303, which unanimously passed the House                   
  before dying in the Senate Rules Committee.  She noted that                  
  up until a 1983 Alaska Supreme Court decision, the language                  
  of Alaska's law was interpreted to be the same as federal                    
  law on that issue.  Now, Alaska's law was interpreted to be                  
  more narrow.                                                                 
  Number 373                                                                   
  REP. DAVIDSON asked Ms. Knuth how a decision was made                        
  regarding whether or not an appeal violated double jeopardy                  
  Number 379                                                                   
  MS. KNUTH responded that judges made that decision through                   
  the adversarial process.                                                     
  Number 404                                                                   
  CHAIRMAN PORTER stated that varying states said that double                  
  jeopardy attached at varying points.  He noted that HB 181                   
  would only apply to those motions that occurred prior to a                   
  trial or dismissal.                                                          
  Number 418                                                                   
  MS. KNUTH gave an example of a man who had been stopped for                  
  a traffic violation and threw bags of cocaine out the window                 
  of his car.  In that case, she said, the judge suppressed                    
  the evidence because he ruled that the traffic stop was                      
  illegal.  The state wanted to appeal that ruling, she noted,                 
  because without that evidence the state had no case against                  
  the man.  She said that a petition for review was now the                    
  state's way of asking the court to review its ruling.  If HB
  181 were to be enacted, she said, the state could file an                    
  appeal on the dismissal of the case that followed that                       
  Number 448                                                                   
  REP. DAVIDSON commented that Ms. Knuth's example showed a                    
  clear need for HB 181.  He asked her to provide an example                   
  in which the need was less clear, in which an individual                     
  lost a certain advantage over the state.                                     
  Number 455                                                                   
  MS. KNUTH cited an example of a presumptive sentencing                       
  situation in which it was questioned whether a defendant's                   
  prior convictions should be taken into account.  If the                      
  court ruled that the prior convictions should not be                         
  considered, the defendant would not receive a presumptive                    
  sentence.  A petition for review by the state might or might                 
  not be granted, she said.  If, however, the state had the                    
  right to appeal a ruling, the state would definitely be able                 
  to address that issue with the Court of Appeals.                             
  Number 482                                                                   
  CHAIRMAN PORTER noted that HB 181 did not tamper with the                    
  state's requirement to prove its case beyond a reasonable                    
  doubt.  He said he saw the bill as a means to save the state                 
  Number 495                                                                   
  REP. DAVIDSON commented that the committee had only heard                    
  one side of the issue.  He said he would like to hear from                   
  the Public Defender Agency and criminal attorneys.                           
  Number 504                                                                   
  CHAIRMAN PORTER noted that the Public Defender Agency and                    
  the Office of Public Advocacy had been notified that HB 181                  
  was before the committee and had elected not to testify.                     
  Number 511                                                                   
  REP. PHILLIPS made a motion to pass HB 181 out of committee                  
  with individual recommendations and a zero fiscal note.                      
  REP. DAVIDSON objected.                                                      
  CHAIRMAN PORTER called for a roll call vote.                                 
  Representatives Phillips, Green, Kott, Nordlund, James, and                  
  Porter voted "yea."  Representative Davidson voted "nay."                    
  And so, the motion carried.                                                  
  CHAIRMAN PORTER noted that the committee would reschedule                    
  HB 62 and HB 147 as soon as possible.                                        
  Number 532                                                                   
  REP. JAMES asked if the Legislative Affairs Legal Services                   
  Division had reviewed HB 147 for compliance with federal                     
  civil rights laws.                                                           
  Number 537                                                                   
  MS. HORETSKI responded that she was unaware of any legal                     
  analysis of HB 147.                                                          
  Number 540                                                                   
  REP. JAMES requested that a legal analysis be performed.                     
  CHAIRMAN PORTER adjourned the meeting at 3:01 p.m.                           

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