05/03/2004 03:23 PM House JUD

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled

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ALASKA STATE LEGISLATURE HOUSE JUDICIARY STANDING COMMITTEE May 3, 2004 3:23 p.m. MEMBERS PRESENT Representative Lesil McGuire, Chair Representative Tom Anderson, Vice Chair Representative Jim Holm Representative Dan Ogg Representative Ralph Samuels Representative Les Gara Representative Max Gruenberg MEMBERS ABSENT All members present COMMITTEE CALENDAR CONFIRMATION HEARINGS Commission on Judicial Conduct Peter J. Aschenbrenner - Fairbanks - CONFIRMATION ADVANCED Violent Crimes Compensation Board Gerad G. Godfrey - Valdez - CONFIRMATION ADVANCED Board of Governors of the Alaska Bar Michael J. Hurley - Anchorage - CONFIRMATION ADVANCED CS FOR SENATE BILL NO. 255(FIN) "An Act relating to traffic preemption devices." - MOVED CSSB 255(FIN) OUT OF COMMITTEE HOUSE BILL NO. 535 "An Act relating to liability for expenses of placement in certain mental health facilities; relating to the mental health treatment assistance program; and providing for an effective date." - HEARD AND HELD CS FOR SENATE BILL NO. 179(FIN) "An Act relating to criminal history records and background checks; allowing persons to teach in the public schools for up to five months without a teaching certificate if the person has applied for a certificate and the application has not been acted upon by the Department of Education and Early Development due to a delay in receiving criminal history records; allowing teacher certification for certain persons based on a criminal history background check without fingerprints; and providing for an effective date." - HEARD AND HELD CS FOR SENATE BILL NO. 338(STA) "An Act relating to actionable claims against state employees; and providing for an effective date." - SCHEDULED BUT NOT HEARD SENATE BILL NO. 316 "An Act relating to motor vehicle safety belt violations." - SCHEDULED BUT NOT HEARD PREVIOUS COMMITTEE ACTION BILL: SB 255 SHORT TITLE: ILLEGAL USE TRAFFIC PREEMPTION DEVICE SPONSOR(S): SENATOR(S) THERRIAULT 01/12/04 (S) PREFILE RELEASED 1/9/04

01/12/04 (S) READ THE FIRST TIME - REFERRALS

01/12/04 (S) STA, JUD, FIN BILL: HB SHORT TITLE: LIMIT STATE AID FOR MENTAL HEALTH CARE SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR BILL: SB SHORT TITLE: CRIMINAL BACKGROUND CHECKS/TEACHERS SPONSOR(S): SENATOR(S) THERRIAULT Committee WITNESS REGISTER PETER J. ASCHENBRENNER, Appointee Commission on Judicial Conduct (CJC) Fairbanks, Alaska POSITION STATEMENT: Testified as appointee to the Commission on Judicial Conduct (CJC). GERAD G. GODFREY, Appointee Violent Crimes Compensation Board (VCCB) Valdez, Alaska POSITION STATEMENT: Testified as appointee to the Violent Crimes Compensation Board. MICHAEL J. HURLEY, Appointee Board of Governors of the Alaska Bar Anchorage, Alaska POSITION STATEMENT: Testified as appointee to the Board of Governors of the Alaska Bar. DENNIS MICHEL, Staff to Senator Gene Therriault Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Presented SB 179. CYNDY CURRAN Teacher Education & Certification Teaching and Learning Support Department of Education and Early Development (DEED) Juneau, Alaska POSITION STATEMENT: Responded to questions during discussion of SB 179. DIANE SCHENKER, Criminal Justice Planner Division of Statewide Services Department of Public Safety (DPS) Anchorage, Alaska POSITION STATEMENT: Responded to questions during discussion of SB 179. LARRY WIGET, Executive Director Public Affairs Anchorage School District (ASD) Anchorage, Alaska POSITION STATEMENT: Provided testimony during discussion 179. REPRESENTATIVE CARL GATTO Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Provided comments during discussion 179. ACTION NARRATIVE TAPE 04-73, SIDE A Number 0001 CHAIR LESIL McGUIRE called the House Judiciary Standing Committee meeting to order at 3:23 p.m. Representatives McGuire, Holm, Samuels, and Gruenberg were present at the call to order. Representatives Anderson, Ogg, and Gara arrived as the meeting was in progress. ^CONFIRMATION HEARINGS ^Commission on Judicial Conduct Number 0107 CHAIR McGUIRE announced that the committee would first consider the appointment of Peter J. Aschenbrenner to the Commission on Judicial Conduct. Number 0117 PETER J. ASCHENBRENNER, Appointee, Commission on Judicial Conduct (CJC), relayed that the CJC, a constitutionally authorized panel of nine members, provides the citizens of Alaska the opportunity to make inquiries, launch investigations, and seek information about the conduct of Alaska's judicial officers. For example, there are sometimes inquiries into what judges do on their own time as well what they do with public resources. Members of the CJC sit as judges in such cases and make recommendations, which are then considered by the [Alaska] Supreme Court. MR. ASCHENBRENNER mentioned that he has been an attorney for 33 years, 32 in Alaska, and has served 17 years as a part-time judge. He said that he is very interested in serving on the CJC and feels that he could make a significant contribution. REPRESENTATIVE SAMUELS asked what happens if there is a complaint against [an Alaska Supreme Court judge]. MR. ASCHENBRENNER said that although there is a procedure to address such circumstances, he is unable to recall at the moment what that procedure entails. REPRESENTATIVE GRUENBERG noted that Mr. Aschenbrenner has a very excellent reputation, and said he recommends his appointment. Number 0366 REPRESENTATIVE SAMUELS made a motion to advance from committee the nomination of Peter J. Aschenbrenner as appointee to the Commission on Judicial Conduct. There being no objection, the confirmation was advanced from the House Judiciary Standing Committee. ^Violent Crimes Compensation Board Number 0381 CHAIR McGUIRE announced that the committee would next consider the appointment of Gerad G. Godfrey to the Violent Crimes Compensation Board. Number 0424 GERAD G. GODFREY, Appointee, Violent Crimes Compensation Board (VCCB), said that as a current member of the VCCB, he has become familiar with the inner workings of the VCCB, its process, its history, and the legal issues it faces; therefore, he opined, it would be ideal for him to continue as a member given his experience. He mentioned that he has a scholastic background in criminal justice and counseling/psychology, and believes this to be a reasonable fit with his duties as public member. REPRESENTATIVE GRUENBERG said he appreciated Mr. Godfrey's testimony on past legislation. Number 0552 REPRESENTATIVES GRUENBERG and HOLM made a motion to advance from committee the nomination of Gerad G. Godfrey to the Violent Crimes Compensation Board. There being no objection, the confirmation was advanced from the House Judiciary Standing Committee. ^Board of Governors of the Alaska Bar Number 0574 CHAIR McGUIRE announced that the committee would next consider the appointment of Michael J. Hurley to the Board of Governors of the Alaska Bar. Number 0602 MICHAEL J. HURLEY, Appointee, Board of Governors of the Alaska Bar, in response to the question of why he wishes to serve on the Board of Governors of the Alaska Bar, said: I'm the senior commercial analyst with ConocoPhillips Alaska, Inc., in Anchorage. As a commercial analyst, I've dealt extensively with attorneys, both in-house attorneys and outside counsel, on a lot of different issues. Some of my previous jobs ... [include] tax regulatory issues in front of the commission [and], as a commercial analyst right now, one of my major support areas is supporting the attorneys in a lot of the commercial issues that they deal with. I feel that my experience with the attorney community will help to make me a beneficial member, as a public member, of the [Board of Governors of the Alaska Bar]. REPRESENTATIVE GARA noted that in a recent conversation he'd had with Mr. Hurley, Mr. Hurley had given responses similar to Mr. Faulhaber's regarding the issues raised at Mr. Faulhaber's confirmation hearing on 4/23/04. CHAIR McGUIRE relayed that she, too, had recently spoken with Mr. Hurley regarding the issues raised during Mr. Faulhaber's confirmation hearing, and recapped those issues. MR. HURLEY said he is looking forward to working with the Board of Governors of the Alaska Bar on those issues. REPRESENTATIVE ANDERSON said he is glad Mr. Hurley is willing to serve on the Board of Governors of the Alaska Bar, and he endorses the appointment. Number 0811 REPRESENTATIVE GRUENBERG made a motion to advance from committee the nomination of Michael J. Hurley as appointee to the Board of Governors of the Alaska Bar. There being no objection, the confirmation was advanced from the House Judiciary Standing Committee. SB Number 0834 CHAIR McGUIRE announced that the next order of business would be CS FOR SENATE BILL NO. 255(FIN), "An Act relating to traffic preemption devices." Number 0883 DENNIS MICHEL, Staff to Senator Gene Therriault, Alaska State Legislature, sponsor, on behalf of Senator Therriault, said that traffic preemption devices are used to change stoplights from red to green in the direction one is traveling in, and this allows one to pass through intersections without having to wait on traffic coming from other directions. Traffic preemption devices have been used by emergency response providers in Alaska for the past 15 years. Unfortunately, because traffic preemption devices are available for purchase by the public, their use by the public in the Lower 48 has led to accidents and traffic problems. MR. MICHEL explained that CSSB none, CSSB Standing Committee. HB Number 1260 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 535, "An Act relating to liability for expenses of placement in certain mental health facilities; relating to the mental health treatment assistance program; and providing for an effective date." [Before the committee was 535(HES).] Number 1282 ROBERT HAMMAKER, Interim Treatment and Recovery Manager, Division of Behavioral Health (DBH), Department of Health and Social Services (DHSS), indicated that CSHB effect that if the program ran out of money, "we would start prorating the amount we pay." With regard to the latter change, he said that the "hospital association" didn't want partial payment; instead, "they wanted ... all or none, and, if it's none, help move people out of our hospital." The AMHB and AMHTA didn't have any strong feelings about that provision, and it is no longer in the current version of the bill. As the bill is currently written, it's very much a matter of trying to live within the appropriations, he concluded. REPRESENTATIVE GRUENBERG asked whether the bill limits a person's right to appeal. Number 1581 MR. HAMMAKER said that issue has not been controversial, though there was concern about "how we would manage the legislation." He went on to say: This bill would register people on the first day of admission - it doesn't approve [them] - so that we have a clue to who's coming down the road. The "old legislation" said we would be the payor of last resort up to 180 [days] - they don't have to submit the bill, though, for 180 days after they've been admitted, which is a long time for us to try [to] ... figure out what bills are coming down the pike. Now [under somebody might be coming to us, [though] that's not a final determination of whether ... we are going to make payment or not. We'll get more information to know if they meet the ... criteria - this is for people who are determined to be dangerous to themselves or others. And there's ... two levels of local designated evaluation and treatment hospitals. One level is for evaluation, and that goes up to 7 days. And there's a second level, and that's treatment, and that ... can be extended up to 40 days. At day 8, when you transition between those two, we'll make an assertive determination of whether they appear to be committable or not, and we'll set up a process whereby ..., if there's two ... apparent denials from the information that we set up ... in the normal process, ... we'll go to a physician ... discussion [with] the local hospital doctor and either the API doctor or first health [doctor] to have a conversation [about] whether the person's committed or not. It won't be a bureaucrat or a lesser medical person making that determination. That was the one area where there was some controversy about who would be determining whether somebody was eligible or not. REPRESENTATIVE GRUENBERG directed attention to language in Section 8 that read: "A denial or reduction of assistance under the is chapter due to insufficient appropriations for financial assistance under this chapter may not be appealed under this section". He surmised that this language means that if someone is denied mental health assistance simply because of insufficient appropriations, then he/she is not allowed to appeal that determination. Number 1751 MR. HAMMAKER remarked: We'll run the program full speed until we're out money, and then what happens is that there ... won't be the local hospital option but there'll still be an API option. So people will always get service. Nobody will be denied service. It's the location of the service that would change when we run out of local hospitalization money. REPRESENTATIVE GRUENBERG asked, "Might this run afoul of the constitutional right to care in the least restrictive setting?" MR. HAMMAKER replied, "That is a concern." REPRESENTATIVE GRUENBERG remarked, "That's a federal right under Donaldson v. O'Connor." MR. HAMMAKER added: It's not ideal that there isn't unlimited local hospitalization. We are trying very hard to continue this program, [and] with ... a disproportionate share [of] funding, we'll have sufficient money next year. And that's become a high priority in the process of the stakeholder discussions around this subject. But the possibility is that we would run out of money [and] ... there would be less of a local hospitalization option for some people who have no other means of paying, and they would go to [the] API instead. Four years ago we didn't have local hospitalization assertively funded with the bill, so, in some ways, it's not a brand new possibility. MR. HAMMAKER, in response to questions, relayed that the Senate companion bill has passed out of the Senate Finance Committee, and the objective is to have SB Number 2153 CHAIR McGUIRE announced that the final order of business would be CS FOR SENATE BILL NO. 179(FIN), "An Act relating to criminal history records and background checks; allowing persons to teach in the public schools for up to five months without a teaching certificate if the person has applied for a certificate and the application has not been acted upon by the Department of Education and Early Development due to a delay in receiving criminal history records; allowing teacher certification for certain persons based on a criminal history background check without fingerprints; and providing for an effective date." Number 2163 ZACH WARWICK, Staff to Senator Gene Therriault, Alaska State Legislature, sponsor, presented SB 179 pertaining to criminal history background checks are not in compliance with federal law. For example, federal law requires that state statute list all occupations for which the state allows criminal history background checks. Section 7 now includes that language. Additionally, the bill's drafters went through the other sections of the bill to ensure that it includes all necessary conforming language, for example, language regarding the fees that are required to be paid by the department in order to get a criminal history background check. CHAIR McGUIRE asked what kind of liability the department would face should the person who is granted an extension under Section 8 commit a crime against a child during that extension and the criminal background check ultimately came back showing that the person had a known record of such behavior. MR. WARWICK declined to answer that question, and reiterated what currently happens when there is a delay in getting the results of a criminal history background check from the DOJ. TAPE 04-73, SIDE B Number 2397 CHAIR McGUIRE suggested that instead of providing for a two- month extension, the bill could just allow a person's preexisting fingerprint sample to be used if the results are not back from the DOJ within the initial three-month time period. MR. WARWICK indicated that the person would then have to go through the application process all over again, adding that currently under the bill, "it's at the discretion of the commissioner of [the DEED] to decide whether this person should be getting this extension. CHAIR McGUIRE said she doesn't have a problem with requiring a person to go through the application process again and just use a preexisting fingerprint sample. She relayed that her concern centers on the fact that under the bill as currently written, a person would remain in the classroom for another two months without the department knowing the results of the background check. She suggested that they narrow the bill down by giving the department the discretion to allow use of preexisting fingerprint samples and paperwork in the reapplication process. MR. WARWICK relayed that he is not that familiar with the nuts and bolts of the application process and didn't have a specific answer as to why such a suggestion might or might not be feasible. He suggested that the DEED's application experts could better address this issue. REPRESENTATIVE OGG pointed out, however, that Mr. Warwick has mentioned that many school districts are simply hiring people as substitute teachers in order to get around the problem engendered by the current three-month deadline. If such is the case, those people are already being allowed to remain in the schools and so why not grant the extension. CHAIR McGUIRE reminded members that in legislation which recently passed the House, there is a provision that requires a person to have submitted fingerprints to the department for use in a criminal history background check and to have been found by the department to be suitable for employment in order to be eligible for a limited teaching certificate. She asked whether a limited teaching certificate is what a substitute teacher must have. Number 2203 MR. WARWICK suggested that the DEED could best answer that question. Regarding his earlier comment that schools hire those waiting for the results of background checks as substitute teachers, he added that some schools reclassify such people so as to allow them to work temporarily in a capacity that doesn't require a background check. He opined, however, that the current practices surrounding this issue are disruptive to the classroom. CHAIR McGUIRE noted that a few years ago, she'd been approached by a constituent of hers whose daughter had been sexually abused by a volunteer athletic coach and her constituent felt very strongly that all volunteers who have close and continuing contact with children ought to have criminal history background checks. A task force was convened over the following interim for the purpose of addressing that issue, and she relayed that she'd heard compelling arguments for requiring background checks on such people, and said she has grave concerns about allowing a teacher to stay in the classroom for another two months without knowing what the results of a criminal history background check will be. "Putting them into a clerical position seems absolutely appropriate to me because [then] they are not in close and personal contact, with that power, if you will, over the young people that they're in close proximity to," she added. Section 8 concerns her a great deal, she concluded. MR. WARWICK noted that the Matanuska-Susitna Borough School District has relayed to him that over the past 12 years, it has never had an applicant's criminal history background check come back with an indication that the applicant should not be hired. He offered his belief that it is much easier to find out something about a person by checking his/her employment history than it is via doing a criminal history background check. Number 2101 REPRESENTATIVE GARA asked for clarification: There's the background check that says whether you have a prior conviction, right? And ... you don't need fingerprints for that, is my understanding - you ... deal with the FBI [Federal Bureau of Investigation], you deal with [the Alaska State Troopers], we do [what's known as] an [Alaska Public Safety Information Network (APSIN)] check, right? And that should come pretty immediately; that should say whether you have any convictions for anything. ... Am I right that we require that before we hire anybody? Am I right about that? MR. WARWICK indicated that he didn't know. REPRESENTATIVE GARA continued: So at a minimum we need to make sure we're doing that, right? You can't start until we have the results from your criminal history check. The fingerprinting check, my understanding is, that helps us determine whether your fingerprints match any sort of open criminal investigation: there's been a spree of child molestations somewhere, you've given your fingerprint check, and that helps us determine whether you are actually a suspect in a pending, open case. ... So I'm looking at this letter from the [Young Men's Christian Association (YMCA)], and this one talks about somebody who was [almost] hired who had a significant criminal conviction history. And I think that gets resolved as long as we have the [APSIN] and out-of-state criminal background check before we hire somebody, and I think a fingerprint check might be a different issue. I just wanted to bring that [to] everybody's attention as we ask questions; they're both important, but that's where my confusion lies. Number 2014 KEVIN SWEENEY, Special Assistant, Office of the Commissioner, Department of Education and Early Development (DEED), with regard to Chair McGuire's concern about the two-month extension, said that the DEED had the same concern about a bill that was [introduced] last year. He went on to say: The way the procedure is now, someone applies for their certificate and they're given a conditional [teaching] certificate once we get their application in and everything's in order, and we send out their fingerprints to the FBI and the [DPS] here for the background check. There was backlog in the past, particularly from ... our [DPS], in getting them back in time, and so we did have a considerable amount of teachers out there ..., where the three months would come up, and the way the law is written, they're technically not allowed in a classroom. I think what the department then did was reissue them another conditional certificate, so they were given another three months extension anyway. I'm fairly certain that's the case. ... We had a concern with just ... changing that three months to five months; what we wanted to do is see them be more efficient. ... Rather than say there's a problem out there so let's change it to five months, let's address the problem and get the results back quicker so that we know we don't have teachers in classrooms that have criminal ... history. And at some point last year, our [DPS] went to a more automated system, and the case now [is that] we are getting our history back in, I think, about six to eight weeks from [the DPS] and even less time from the FBI. I know we are getting them back now in an efficient manner, so that I don't really see us, at least in the present case, using this [two-month] extension very often because of the fact that we're getting those records back. And the way that that's written, we did have a concern that we wanted to make sure that it was up to the discretion of the department because of a backlog at [the DOJ or the DPS], not just an automatic [two-months] because perhaps somebody waited until the last minute: they'd been in a classroom for two and a half months and waited to the last minute to apply. So, as long as it's up to the department to be able to determine that ... there is actually some sort of backlog, we didn't have a major concern with a [two- month] extension. Number 1903 MR. SWEENEY continued: As far as [Representative Gara's] question [regarding whether] ... there's a background check ..., I know ... I have had sort of the same concern because, the way it's happening now is, ... teachers are getting another conditional certificate, another conditional certificate, and sometimes they've resubmitted their fingerprints seven or eight times. Which is why this bill originally came, [so] that we could go to that name-based check instead of the fingerprints. What we wanted to see was maybe the second they submit their fingerprints, if they come back as being non-readable, that they instantly institute that name-based check, rather than wait for a second go-around. But I think that the way ... the rules are written by the FBI, ... you can't do that. ... And [with regard to] Section 10, which deals with the non-legible fingerprints and the people with the physical disability, we have a regulation on the books now that accomplishes basically the same thing; our language is a bit different in that [when compared with] Section 10 [subsection (j)(1) and (2)], we require that the teacher have written documentation from a physician. And in doing that, we wanted to [ensure] that there was some sort of check to make sure that there was, in fact, a skin condition. And I guess [we've] found out since then that the [DPS] and the FBI actually do have the people that are the experts in being able to look at a fingerprint itself ... to determine ... [whether] the person has skin condition or ... [whether] it's just smudged. MR. SWEENEY concluded: So I think we ... will change our regulations if this law passes, to reflect the changes here, and remove, at least from [the regulation similar to paragraph 2], the requirement from the physician. I think in ... the first instance, where it's somebody with a physical disability, meaning they don't have fingerprints, ... since the [DPS] would have to be making that determination from afar, they obviously can't see the person, ... we would ... still leave in our regulation ... [requiring] a physician's note that says ... the person doesn't have ... fingerprints. But I think that's a rare case. Number 1799 CHAIR McGUIRE asked Mr. Sweeney, then, whether he even sees a need for those sections of the bill. Is there something the DEED can't accomplish via regulations? MR. SWEENEY opined that all Section 10 would do would be to match statute up somewhat with current regulations; the DEED would then make appropriate conforming changes to its regulations. In response to further questions, he said that a wide variety of organizations and entities do fingerprinting; that it would be nice if all fingerprints were taken with electronic fingerprint scanners; and that the DEED wanted assurance that when fingerprints are illegible it isn't just because they are smudged. REPRESENTATIVE GARA asked whether criminal history checks are done before someone is hired, offering his belief that such checks should only take a few days. MR. SWEENEY offered that different school districts have different policies regarding that issue. Some districts don't allow a person to be in a classroom until the criminal history background check is completed even if it takes the entire three months. Some districts do their own, separate, criminal history background check, and some districts rely on the state's background check. REPRESENTATIVE GARA said he hopes that criminal history background checks are not delayed until the results of fingerprint tests are returned. MR. SWEENEY suggested that the DPS ought to be able to confirm that point. What the DEED wants from SB classroom. He relayed that the school districts he has been in contact with do "an individual check" while waiting for the results of the fingerprint-based check. TAPE 04-74, SIDE A Number 0001 REPRESENTATIVE GATTO said that according to a conversation he'd had with the human resource manager of the Matanuska-Susitna School District, not once in eight years has a person who's been approved to work in the classroom while waiting for the results of a fingerprint-based background check had those results come back indicating that he/she should not be in the classroom. He offered his belief that the current time constraints create situations that are disruptive to the classroom; that the bill will make for better education; and that the main problem stems from delays at the federal level. He suggested that purchasing electronic fingerprint scanners could be another step towards protecting children, but until such is done, the bill provides an intermediate solution. REPRESENTATIVE GARA asked how often state background checks are conducted. REPRESENTATIVE GATTO said he did not know. REPRESENTATIVE GARA indicated that he would be willing to consider making a statutory requirement that a person show that he/she has had a statewide criminal history background check conducted within the preceding five years. Number 0472 REPRESENTATIVE GATTO pointed out, however, that a person can change, and thus requiring evidence that a background check was conducted within the past five years will not ensure that the person hasn't done something recently. He offered his belief that SB REPRESENTATIVE HOLM offered his belief that a teacher must be recertified every five years, and that this involves conducting a criminal history background check. [SB ADJOURNMENT Number 0520 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 5:20 p.m.

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