03/01/2005 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB116 | |
| HB114 | |
| HB121 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 34 | TELECONFERENCED | |
| *+ | HB 114 | TELECONFERENCED | |
| *+ | HB 116 | TELECONFERENCED | |
| + | HB 121 | TELECONFERENCED | |
| *+ | HB 12 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 1, 2005
8:04 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Carl Gatto, Vice Chair
Representative Jim Elkins
Representative Jay Ramras
Representative Berta Gardner
Representative Max Gruenberg
MEMBERS ABSENT
Representative Bob Lynn
COMMITTEE CALENDAR
HOUSE BILL NO. 116
"An Act relating to the liability of certain persons for entry
and remaining on licensed premises."
- MOVED CSHB 116(STA) OUT OF COMMITTEE
HOUSE BILL NO. 114
"An Act relating to the retaining of certain privileges of a
parent in a relinquishment and termination of a parent and child
relationship proceeding; relating to eligibility for permanent
fund dividends for certain children in the custody of the state;
relating to child in need of aid proceedings and juvenile
delinquency proceedings; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 121
"An Act relating to consolidating or abolishing certain service
areas in second class boroughs."
- HEARD AND HELD
HOUSE BILL NO. 12
"An Act relating to televisions and monitors in motor vehicles."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 34
"An Act relating to the expungement of records relating to
conviction set asides granted after suspended imposition of
sentence."
- BILL HEARING POSTPONED
PREVIOUS COMMITTEE ACTION
BILL: HB 116
SHORT TITLE: MINORS ON LICENSED PREMISES
SPONSOR(s): REPRESENTATIVE(s) MEYER
01/28/05 (H) READ THE FIRST TIME - REFERRALS
01/28/05 (H) STA, JUD
03/01/05 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 114
SHORT TITLE: TERM. PARENTAL RTS/CINA/DELINQUENCY CASES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/26/05 (H) READ THE FIRST TIME - REFERRALS
01/26/05 (H) STA, HES, JUD
03/01/05 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 121
SHORT TITLE: SERVICE AREAS IN SECOND CLASS BOROUGHS
SPONSOR(s): COMMUNITY & REGIONAL AFFAIRS
02/02/05 (H) READ THE FIRST TIME - REFERRALS
02/02/05 (H) CRA, STA
02/15/05 (H) CRA AT 8:00 AM CAPITOL 124
02/15/05 (H) Heard & Held
02/15/05 (H) MINUTE(CRA)
02/24/05 (H) CRA RPT CS(CRA) NT 1DP 5NR
02/24/05 (H) DP: THOMAS;
02/24/05 (H) NR: CISSNA, NEUMAN, SALMON, LEDOUX,
OLSON
02/24/05 (H) CRA AT 8:00 AM CAPITOL 124
02/24/05 (H) Moved CSHB 121(CRA) Out of Committee
02/24/05 (H) MINUTE(CRA)
03/01/05 (H) STA AT 8:00 AM CAPITOL 106
WITNESS REGISTER
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HB 116.
DOUGLAS B. GRIFFIN, Director
Alcohol Beverage Control Board ("ABC" Board)
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Answered questions on behalf of the
department during the hearing on HB 116.
MIKE PAWLOWSKI, Staff
to Representative Kevin Meyer
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
116, on behalf of Representative Meyer, sponsor.
CINDY CASHEN, Executive Director
Mothers Against Drunk Driving (MADD)
Juneau Chapter
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 116.
DIANNE OLSEN, Chief Assistant Attorney General
- Statewide Section Supervisor
Human Services Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Introduced HB 114 on behalf of the
department.
LINDA WILSON, Deputy Director
Central Office, Public Defender Agency
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Testified on behalf of the agency in
support of certain aspects of HB 114, and to specify other
aspects of the bill as problematic.
KACI SCHROEDER, Staff
to Representative Bill Thomas
House Community and Regional Affairs Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 121 on behalf of the House
Community and Regional Affairs Standing Committee.
RYNNIEVA MOSS, Chair
Road Commission
Fairbanks, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
121.
RENE BROKER, Attorney at Law
Fairbanks North Star Borough
Fairbanks, Alaska
POSITION STATEMENT: Testified on behalf of the Fairbanks North
Star Borough in support of HB 121.
DAN BOCKHORST, Local Boundary Commission
Central Office
Division of Community Advocacy
Department of Commerce, Community, & Economic Development
Anchorage, Alaska
POSITION STATEMENT: Made observations regarding HB 121 on
behalf of the department.
ACTION NARRATIVE
CHAIR PAUL SEATON called the House State Affairs Standing
Committee meeting to order at 8:04:52 AM. Representatives
Gatto, Elkins, Gardner, and Seaton were present at the call to
order. Representatives Ramras and Gruenberg arrived as the
meeting was in progress.
HB 166-VETERANS' MEMORIAL CERTIFICATES
8:06:09 AM
CHAIR SEATON announced that the first order of business was
HOUSE BILL NO. 116, "An Act relating to the liability of certain
persons for entry and remaining on licensed premises."
8:06:21 AM
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, as sponsor
of HB 116, said the proposed legislation would protect minors
who work with peace officers in sting operations.
8:06:37 AM
REPRESENTATIVE ELKINS moved to adopt the committee substitute
(CS) for 116, Version 24-LS0379\G, Luckhaupt, 2/9/05, as a work
draft. There being no objection, Version G was before the
committee.
8:07:04 AM
REPRESENTATIVE MEYER continued with his introduction of the
bill. He noted that Version G would add a second section to the
original version, applying the intent to both instances of civil
liability as it pertains to alcohol beverage status. Version G
corrects an oversight in the civil liability provisions of AS
4.16.049 and .065. He reminded the committee that, in the last
legislative session, he had brought forth House Bill 428, which
created a civil liability penalty for violations of AS 4.16.060.
AS 4.16.049 and .065 allow a person with an alcoholic beverage
license to bring civil action against a minor who violates the
provisions of those statutes, including: a minor who is
knowingly entering or remaining on a licensed premise; a minor
soliciting others to purchase alcohol for them; and a minor
presenting false identification. The fine can be up to $1,000.
Representative Meyer said the problem is that when the original
legislation was passed, [underage] volunteers who may be working
with law enforcement on various sting operations were not
exempted.
REPRESENTATIVE MEYER said the compliance checks done are a good
enforcement tool. Some establishments follow the law better
than others. He related first-hand experience in having been
asked by a minor to buy alcohol. When he refused, the minor
told him that she was working with the Mothers Against Drunk
Driving (MADD) Youth For Action group, and she was with a law
enforcement officer who was in an unmarked car. He said [HB
116] would try to fill a loophole. He added, "I don't think we
ever intended for establishments to take action against kids who
were actually working with law enforcement on sting operations."
8:09:56 AM
REPRESENTATIVE ELKINS asked how many youth have been prosecuted.
8:10:15 AM
REPRESENTATIVE MEYER said he doesn't know the actual numbers,
but it's "in the 100s."
8:10:55 AM
REPRESENTATIVE ELKINS asked how many of the youth who signed up
for the program may have been in trouble for minor consuming and
did so to try to "clean up their slate."
8:12:20 AM
REPRESENTATIVE MEYER indicated that others present to testify
may be better able to answer that question.
8:13:35 AM
DOUGLAS B. GRIFFIN, Director, Alcohol Beverage Control Board
("ABC" Board), Department of Public Safety, in response to
Representative Elkins' question, said generally that's not the
manner in which underage people are recruited; however, he said
he's not 100 percent certain the situation Representative Elkins
described doesn't exist. He listed some of the places from
which youth are recruited, including: the Youth In Action
program in Juneau, MADD, underage military personnel, college
coeds, and some high school students. He noted that the youth
are paid about $10 an hour.
8:14:43 AM
REPRESENTATIVE ELKINS asked who runs the program.
8:14:56 AM
MR. GRIFFIN responded that he has run the program through local
police and it's still possible for local police to get their own
grant to do this type of work; however, since moving the ABC
Board over to the Department of Public Safety, the board has
opted to have Alaska State Troopers run the operations. He
emphasized that the intent is not to be deceptive; the desire is
to use underage people who look their age. Mr. Griffin reported
that since the program's inception, the failure rate has dropped
from 50 percent to below 10 percent.
8:17:47 AM
MR. GRIFFIN, in response to questions from Representative
Ramras, said fake identification (ID) is not used and often an
ID is not used at all. Sometimes a youth participant may use
his/her existing ID. The average age of the youth is 18, while
some 19 or 20 years of age are used. If someone is used who is
approaching the age of 21, they are dressed to look young. He
reiterated that the intent is not to fool people regarding the
person's age. He added, "We prefer to call these compliance
checks."
8:20:40 AM
REPRESENTATIVE RAMRAS said the program is successful; however,
he expressed concern that hard-working servers would think that
a person showing an ID wouldn't do so unless he/she was 21 or
older.
8:22:02 AM
MR. GRIFFIN said that's unfortunate, but a server must do
his/her job. If the action is fought, perhaps a prosecutor
would decide not to prosecute, but it's not the ABC board's
decision.
8:24:00 AM
CHAIR SEATON asked the committee members to keep their questions
within the context of the bill.
8:24:23 AM
REPRESENTATIVE GRUENBERG directed attention to the phrase
"otherwise observes" on [page 1 of Version G], lines 7 and 13,
and he remarked that that implies visualization. He asked if
there is a possibility of using wiring in the future.
8:25:01 AM
MR. GRIFFIN said that's a good point for possible instances
where there may not be direct visualization.
8:25:54 AM
REPRESENTATIVE GRUENBERG said he would work on that in the House
Judiciary Standing Committee. He said there are similar kinds
of situations regarding underage persons purchasing cigarettes,
and he suggested considering similar language for that.
8:26:47 AM
MR. GRIFFIN said cigarettes are outside the ABC Board's
jurisdiction.
8:27:15 AM
REPRESENTATIVE GRUENBERG asked about a possible cooperative
sting involving someone underage trying to buy both alcohol and
cigarettes in a bar.
8:27:57 AM
MR. GRIFFIN reiterated that the ABC Board does not do anything
related to tobacco and, to his knowledge, said the tobacco
industry doesn't oversee anything related to the sale of
alcohol. He said there are situations where a person old enough
to buy tobacco, but not old enough to buy liquor, gets his/her
license revoked because of going into a liquor store to buy the
tobacco.
8:29:09 AM
REPRESENTATIVE GRUENBERG suggested finding a way to combine
tobacco and alcohol as they relate to compliance, and to
consider narrowing the title of the bill.
8:29:17 AM
REPRESENTATIVE MEYER said he is concerned about youth having
access to tobacco; however, he said, "I don't believe we have
the civil liability with the tobacco as we do the alcohol."
8:29:37 AM
REPRESENTATIVE GATTO asked if there are people "unaccompanied,
unobserved, and unwired" who are simply patrolling areas to
calculate which areas need the most concentration.
8:30:41 AM
MR. GRIFFIN answered no. He said that does not comport with the
way the ABC Board operates its program. He outlined the program
again and added that all the stores are blanketed, and some bars
as well.
8:31:20 AM
REPRESENTATIVE GATTO asked if it is possible to say someone is
"otherwise observed" if he/she comes back with a voice
recording, video recording, or photograph.
8:31:47 AM
MR. GRIFFIN said that may be a legal question. He reiterated
that recording equipment is not currently used. An attempt is
made to have direct observation, with a police officer or state
trooper nearby.
8:32:44 AM
CHAIR SEATON directed attention to page 1, [lines 11-12], which
read as follows: "if a person performs an act proscribed under
this section". He asked if that refers to participation in the
project or the purchasing of alcohol.
8:33:06 AM
MIKE PAWLOWSKI, Staff to Representative Kevin Meyer, Alaska
State Legislature, testifying on behalf of Representative Meyer,
sponsor, clarified that the language refers to the acts listed
in AS 04.16.060 [which read as follows]:
Sec. 04.16.060. Purchase by or delivery to persons
under the age of 21.
(a) A person under the age of 21 years may not
purchase alcoholic beverages or solicit another to
purchase alcoholic beverages for the person under the
age of 21.
(b) A person may not influence the sale, gift, or
service of an alcoholic beverage to a person under the
age of 21 years, by misrepresenting the age of that
person.
(c) A person may not order or receive an
alcoholic beverage from a licensee, an agent or
employee of the licensee, or another person, for the
purpose of selling, giving, or serving it to a person
under the age of 21 years.
(d) A person under the age of 21 years may not
enter licensed premises where alcoholic beverages are
sold and offer or present to a licensee or an agent or
employee of the licensee a birth certificate or other
written evidence of age, that is fraudulent or false
or that is not actually the person's own, or otherwise
misrepresent the person's age, for the purpose of
inducing the licensee or an agent or employee of the
licensee to sell, give, serve, or furnish alcoholic
beverages contrary to law.
(e) A person under the age of 21 who is seeking
to enter and remain in a licensed premises under AS
04.16.049(a)(2) or (3) may not misrepresent the
person's age or having obtained the consent of the
parent or guardian required by that section.
8:34:24 AM
CINDY CASHEN, Executive Director, Mothers Against Drunk Driving
(MADD), Juneau Chapter, stated her support of HB 116. She told
the committee that the Juneau Chapter's Youth In Action members
are trained to do the compliance checks. She confirmed that
those picked to participate are young - one of them is a 14-
year-old with braces - and in no way are supposed to look 21 to
fool people. Ms. Cashen noted that those who are following the
law are publicly thanked.
8:37:08 AM
MR. GRIFFIN, in response to a question from Representative
Elkins regarding how many cases involve minors buying liquor in
a store versus how many involve minors asking someone outside
the store to purchase the liquor for them, said he would have to
investigate an answer. He said the main focus of the ABC Board
has been to get clerks trained, and he expressed pleasure at the
numbers dropping under 10 percent. He said the secondary step
is getting people not to buy for those underage. Mr. Griffin
said the "shoulder tap" method of getting an of-age person to
buy for an underage person [in a compliance check] is relatively
new.
8:39:08 AM
REPRESENTATIVE ELKINS offered his understanding that most people
who buy alcohol for underage people are in their early twenties.
8:39:31 AM
MR. GRIFFIN responded that one study shows "that 65 percent of
the alcohol provided to underage people [is] provided by parents
of ... old-enough friends or siblings." He stated that the
compliance check will not, in and of itself, solve the problem
of underage access to alcohol, but it's one step to solving the
problem. He said the next step is to try to educate the public,
which will probably be done initially with a media campaign. He
said several groups are working together to pool money for the
media effort.
8:41:11 AM
REPRESENTATIVE ELKINS asked Mr. Griffin how he would rate the
Techniques in Alcohol Management (TAM) program, overall.
8:41:35 AM
MR. GRIFFIN replied that the program is not perfect, because the
participants probably don't learn everything they need to know
in a four- to five-hour class; however, it provides a certain
level of understanding and professionalism to people who sell
alcohol.
8:42:26 AM
MR. GRIFFIN, in response to a question from Chair Seaton,
explained that TAM is one of about three alcohol server programs
that the ABC Board has approved. The training is required and
those who have it must get recertified every three years.
Anyone working in an establishment that serves alcohol must be
able to show their certification to a police officer or ABC
Board member upon demand.
8:44:49 AM
MR. GRIFFIN, in response to a question from Representative
Gatto, said to his knowledge there have not been any studies
done to find out whether one particular age clerk is more likely
to sell to a minor than another. In response to Representative
Gatto's example that a 21-year-old clerk may be more likely to
sell to a minor, he pointed out that there actually may be an
advantage to a younger clerk's knowing who's of age. He
emphasized that he doesn't want to jump to any conclusions
regarding a certain age clerk being better than another.
8:46:43 AM
REPRESENTATIVE GRUENBERG suggested it may be a good idea to add
a subsection (e) to AS 04.16.065 specifically saying that a
minor not be subject to civil penalty.
8:47:50 AM
MR. PAWLOWSKI responded that "the civil liability in [AS
04.16.065] doesn't trigger until there's a violation of
[04.16.060]."
8:49:32 AM
REPRESENTATIVE GRUENBERG explained that the purpose of HB 116 is
to provide some immunization and assurance that if a young
person works for ABC Board in conducting a compliance check,
they are not going to be "hit with a civil penalty."
8:51:03 AM
REPRESENTATIVE GRUENBERG asked Mr. Griffin if there is a
statutory requirement in regulations that requires bartenders
and servers to have training.
8:51:35 AM
MR. GRIFFIN answered yes. He noted that the regulation is
13 AAC 104.465 and the statutory requirement is AS 04.21.025.
In response to a follow-up question from Representative
Gruenberg, he said there is no provision in AS 04.24.025 that
requires that a person who sells to a minor be ordered to
undergo additional training. He said it may be something that
occurs, but very often that person is fired.
8:53:51 AM
REPRESENTATIVE GRUENBERG asked if the ABC Board would like to
have the authority in AS 04.24.025 to require the licensee and
clerk to have additional training.
8:54:15 AM
MR. GRIFFIN said he would like to think about that. He said he
thinks the board has the authority to do that now. Something in
statute making it clear that the board has that option wouldn't
hurt, he added, but it may not be necessary.
8:55:26 AM
CHAIR SEATON asked the committee to refocus on the issue of
exempting liability.
8:55:46 AM
REPRESENTATIVE RAMRAS congratulated the ABC Board on its
"splendid approach" over the last few years. Notwithstanding
that, he said he would oppose [HB 116]. He indicated that there
is a difference between using the word "compliance" versus the
word "sting," and he mentioned being on "the receiving end of
this." He related an anecdote regarding a young woman he
overheard on a plane who was worried about using her real ID to
buy alcoholic drinks at bars on her twenty-first birthday,
because she had been using her sister's ID for many years in
those same bars.
8:58:07 AM
REPRESENTATIVE RAMRAS referred to a sentence in the letter from
the ABC Board [included in the committee packet], which read as
follows:
One tactic that has been raised by liquor licensees
that do not like this increased oversight and
enforcement is the claim that law enforcement agents
are breaking the law to enforce the law by sending
underage persons on to licensed premises in violation
of AS 04.16.049.
REPRESENTATIVE RAMRAS said, "I guess that's my issue." He
observed that people who work in the food service industry are
often there because it's the best fit for them. He said he is
in favor of prosecuting people who [serve alcohol] to people who
say they have left there IDs at home, for example; however, he
expressed concern for those who are being shown IDs, but don't
catch that they aren't valid. Representative Ramras said his
professional bartenders take the time to really look at an ID,
but he indicated that his servers are often in a rush and
dealing with many customers. Some of them have been in the
industry for a short time, and it's those servers who, he
indicated, are being preyed upon. He asked, "How long do you
look at a piece of ID for?"
9:03:55 AM
CHAIR SEATON asked, "Is the law that you can't serve to someone
under 21, or is the law that you have to check everyone's ID?"
REPRESENTATIVE RAMRAS answered, "Both."
9:04:37 AM
CHAIR SEATON asked if it would be in violation of law if someone
over 21 is served alcohol, "with or without ID."
9:04:50 AM
REPRESENTATIVE ELKINS noted that most establishments have a form
that a person can fill out swearing that they are 21.
9:06:20 AM
CHAIR SEATON said it's obvious that showing the [ID] is not law,
or everyone would have to show their ID every time. He asked
the committee to refocus on the intent of the bill, which he
said is to allow a minor to participate in a compliance check
without fear of civil action.
9:07:44 AM
REPRESENTATIVE GARDNER said she thinks everyone present is aware
of Alaska's problem with alcohol. She said the state has agreed
to a minimum drinking age, and those serving alcohol cannot do
so to those underage. She indicated that there are a lot of
programs to ensure the law is followed; HB 116 would protect
those minors working with law enforcement. She stated her
support of [HB 116].
9:09:29 AM
REPRESENTATIVE GATTO revealed that in his 26 years working in an
ambulance and fire truck he has responded to more traffic
accidents than he can count, and many of those accidents were
caused by either someone "drinking too much or drinking too
young." He said the innocent people are often the ones who are
the victims.
9:09:56 AM
CHAIR SEATON asked the committee to refocus on the bill.
9:10:14 AM
REPRESENTATIVE GRUENBERG, in response to Representative Gatto's
reference to the ABC Board's letter, said there are many
instances where the law is broken to enforce law, and he said
that's an issue that should be considered.
9:11:28 AM
CHAIR SEATON clarified that if the committee were to pass HB
116, those underage youth who work with law enforcement on
compliance checks would not be breaking the law, because there
would be a built-in exception to the law.
9:12:02 AM
REPRESENTATIVE GRUENBERG concurred. He referred to AS 11.81.420
[(a)], which read as follows:
Sec. 11.81.420. Justification: Performance of public
duty.
(a) Unless inconsistent with AS 11.81.320 -
11.81.410, conduct which would otherwise constitute an
offense is justified when it is required or authorized
by law or by a judicial decree, judgment, or order.
9:12:29 AM
REPRESENTATIVE GATTO moved to report HB 116 out of committee
with individual recommendations and the accompanying fiscal
notes.
CHAIR SEATON noted that an objection had been voiced.
9:13:51 AM
A roll call vote was taken. Representatives Gardner, Gruenberg,
Gatto, and Seaton voted in favor of CSHB 116, Version 24-
LS0379\G, Luckhaupt, 2/9/05. Representatives Elkins and Ramras
voted against it. Therefore, CSHB 116(STA) was reported out of
the House State Affairs Standing Committee by a vote of 4-2.
9:14:02 AM
REPRESENTATIVE GRUENBERG asked that the record show that the
bill passed by a majority of the committee.
HB 114-TERM. PARENTAL RTS/CINA/DELINQUENCY CASES
9:14:32 AM
CHAIR SEATON announced that the next order of business was HOUSE
BILL NO. 114, "An Act relating to the retaining of certain
privileges of a parent in a relinquishment and termination of a
parent and child relationship proceeding; relating to
eligibility for permanent fund dividends for certain children in
the custody of the state; relating to child in need of aid
proceedings and juvenile delinquency proceedings; and providing
for an effective date."
9:14:59 AM
DIANNE OLSEN, Chief Assistant Attorney General - Statewide
Section Supervisor, Human Services Section, Civil Division
(Anchorage), Department of Law, testifying on behalf of the
department, introduced HB 114. She noted that the proposed
legislation includes several distinct provisions relating to the
child protection system; each constitutes a step toward making
Alaska's children safer, healthier, and more secure, without
unreasonably expanding governmental powers.
MS. OLSEN said [HB 114] would amend AS 25.23.180, to permit
parents to relinquish their parental rights to a child, while
retaining certain privileges, such as ongoing communication or
visitation with the child. The amendment is in response to a
recent Alaska Supreme Court decision, holding that the current
law prohibits a parent from retaining any rights or privileges
in a relinquishment. She said that in some cases ongoing
contact with the parent is in the child's best interest,
especially when that child is adopted by a relative or a family
acquaintance.
MS. OLSEN noted that the proposed amendment would also add
language to AS 43.23.005, to allow children - who are placed
temporarily by the Department of Health & Social Services
outside of the state - in out-of-state treatment facilities, in
order to maintain eligibility for Alaska permanent fund
dividends (PFDs). She noted that some children require long-
term treatment of a nature that is currently unavailable in
Alaska, and such children are in risk of losing the PFD
eligibility if they remain out of the state in excess of the
statutorily proscribed period of time and are unable to return
to the state. She said the department feels that these Alaskan
children should not loose the privilege [of receiving a PFD] as
a result of having been placed in the treatment facility which
is not available in the state.
MS. OLSEN said HB 114 would also add language to AS 47.10.020,
to clarify that the court may issue any orders necessary to aid
the department in its investigation of an allegation of child
abuse and neglect. She noted that the language would resolve
any ambiguity toward the ability of judges to issue orders
across the state through various jurisdictions. A new
subsection would also be added to the statute to clarify that
the department is not required to obtain authorization from the
court to conduct an investigation of a protective services
report, formerly know as a "report of harm," or to file a
petition in court.
MS. OLSEN stated that existing federal law requires the
testimony of a qualified expert witness in order for the court
to authorize the out-of-home placement of or termination of
parental rights to an Indian child. A new section would be
added to AS 47.10.145 to permit the courts to conclude, as a
matter of law, that the testimony of a qualified expert witness
would support a finding that placing a child with a parent that
cannot be located, is absent, or is unknown, would place that
child at substantial risk of harm.
MS. OLSEN concluded that [HB 114] would amend the definition of
the term "mental health professional" in AS 47.30.915, for
purposes of child in need of aid (CINA) and juvenile delinquency
proceedings. In order to authorize placement of children in
secure residential psychiatric treatment facilities, the court
must hear the testimony of a mental health professional. The
current definition excludes professionals who may be licensed to
practice in states other than Alaska. The testimony of such a
professional is often critical in cases involving Alaska
children who are already placed out-of-state by the department.
Ms. Olsen said the expansion of the existing definition is
necessary to ensure that Alaska children who are placed outside
of the state receive the psychiatric treatment that they need.
9:19:13 AM
CHAIR SEATON said no one has had a chance to read the committee
substitute (CS) for HB 114, Version 24-GH1108\G, Mischel,
2/28/05; therefore, he plans to hold the bill after the
committee has asked questions of the witnesses.
9:19:34 AM
REPRESENTATIVE GARDNER asked Ms. Olsen to clarify how HB 114
would change the ability of the expert witness to give
testimony.
9:20:00 AM
MS. OLSEN responded that under the Indian Child Welfare Act it
is currently required that, in order to place a child in foster
care, or to terminate parental rights, there must be evidence
supported by a qualified expert witness that returning the child
to the parent is likely to result in serious physical or
emotional harm. In the case of an absent parent, she said it's
simply a matter of common sense that the child can't be put back
with that parent, because the department has no idea where they
are. She offered further details.
9:22:31 AM
REPRESENTATIVE GARDNER stated her understanding that, in
summary, Ms. Olsen was saying that the bill would eliminate the
necessity of having an expert witness and would codify the
assumption that if a parent is absent, an expert witness would
not be necessary.
9:22:46 AM
MS. OLSEN said yes.
9:22:51 AM
REPRESENTATIVE GRUENBERG indicated he was uncomfortable with the
language of Section 5, but not certain why. He asked Ms. Olsen
to provide him with the court cases to which Sections 1 and 5
pertain.
9:25:01 AM
REPRESENTATIVE GRUENBERG directed attention to page 1, line 13
[of the CS that was not yet adopted], which read: "A
relinquishment may not be withdrawn or invalidated". He
observed, "It seems to divest the court of jurisdiction to
invalidate such a relinquishment." He said he would have
serious problems with divesting a court of its jurisdiction. He
turned to the language beginning on the top of page 2, which
read: "that a retained privilege has been withheld from the
relinquishing parent". He said there could be a child in state
custody, whose parent was promised visitation, and the state
could deliberately withhold visitation from that parent. The
parent would have no legal recourse, at all. He said, "I think
that's terrible public policy. Why would you justify that?"
9:26:12 AM
MS. OLSEN responded that the section to which Representative
Gruenberg referred is intended to apply to a relinquishment that
is taken prior to an adoption. The relinquishments, as a matter
of policy by both the department and the attorney general's
office, would not be taken unless they were agreed to by the
adopted parent. She stated her belief that there is currently a
state statute that does not allow an adoption to be overturned
for any reason after one year, and, under the Indian Child
Welfare Act, it's two years "if it's a matter of duress."
9:27:34 AM
REPRESENTATIVE GRUENBERG said a provision already exists that
"allows conditions for retaining privileges," so he questioned
if Section 1 would be necessary. He noted that there is a one-
year statute of limitations in the Adoption Act, and "this would
seem to run contrary to that." He also remarked, "This may very
well be unconstitutional if it were intended to conflict with
the federally enacted Indian Child Welfare Act, which would
retain supremacy under the supremacy clause."
9:29:15 AM
CHAIR SEATON reiterated that the [unadopted] CS was just
received by the committee. He asked the witness to get back to
the committee with answers to Representative Gruenberg's
questions in writing. Chair Seaton said he would like to get a
synopsis of "where we're going with that section and how you
interpret that, as well."
The committee took an at-ease from 9:30:22 AM to 9:30:47 AM.
9:31:41 AM
REPRESENTATIVE RAMRAS said other groups outside of Alaska, such
as athletes training out-of-state and Peace Corps volunteers, do
not qualify for the Alaska permanent fund dividend (PFD). He
asked why a distinction is being drawn between them and an
individual who is in custody of the Department of Health &
Social Services and placed outside of the state for medical and
behavioral treatment.
9:32:19 AM
MS. OLSEN replied that she doesn't know if the department has
considered that or thought that there was a distinction. She
said primarily the focus has been on the children who were in
custody of the department and sent out of the state, sometimes
against their will or the will of their parents, and thought
that "this would be a good opportunity to resolve that issue for
them."
9:32:41 AM
CHAIR SEATON opened public testimony.
9:32:58 AM
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, said she currently
supervises the Family Law Section of the department, which is a
section that includes attorneys who represent parents in child
protective proceedings in cases that [HB 114] would affect. She
said she also supervises attorneys who represent juveniles in
juvenile delinquency cases.
MS. WILSON stated that [the agency] supports some aspects of the
bill, particularly Section 2, that would allow for PFD
eligibility. She said the "spirit of Section 1," regarding
retaining privileges in a relinquishment, is well intended;
however, it doesn't do as much as it could. She said,
"Retaining a privilege that really is not enforceable - has no
teeth in it - is ... almost like false advertisement; you're
telling the parent, 'You can retain a privilege, but it's non-
enforceable, and you can't void the relinquishment or the
adoption with it.'" She opined that it would be better to "put
something in the adoption decree." She said she thinks the
policy behind finality in adoption is a sound one. She
clarified as follows:
The fact that you maybe couldn't void the
relinquishment or the adoption may be a sound policy,
but I think there needs to be something in the
adoption decree to require that visitation - if it's
in the best interest of the child - be enforceable, so
that, down the road, if the adopted parents are
withholding visitation, and that's not in the child's
best interest, ... a biological parent could initiate
some action in the probate court that handles the
adoption, to try to get that visitation that they
thought they were going to get when they relinquished.
9:36:42 AM
MS. WILSON turned to Section 5, regarding the expert witness.
She said Section 5 would take away the qualified expert from the
scene. She noted that, under the federal Indian Child Welfare
Act, the state has to "put on an expert witness." To eliminate
that requirement is problematic. She said Ms. Olson had
previously remarked that "in cases currently, it may be
stipulated." She emphasized that stipulated is different than
having the court "impose it without a stipulation." She offered
further details. Ms. Wilson said she thinks there are good
reasons for having a qualified expert.
9:38:38 AM
CHAIR SEATON said the issue before the committee is a
complicated one and a subcommittee may be formed to look at the
problems in more detail.
9:39:08 AM
REPRESENTATIVE GARDNER asked if an attorney appointed to an
absent parent, who may never have met that parent, could
stipulate to an agreement to dispense with the requirement of an
expert witness in the absence of the parent.
9:39:32 AM
MS. WILSON said she suspects the attorney could do so, but she
said she thinks there are many attorneys who would have a
problem with that.
9:40:07 AM
REPRESENTATIVE GRUENBERG stated that he thinks an attorney
cannot stipulate on behalf of a client he/she has never met. In
regard to the standard of clear and convincing evidence, he
recollected that the Indian Child Welfare Act requires "proof
beyond a reasonable doubt." He questioned whether grafting in
state law a lessor standard of clear and convincing evidence
would violate the supremacy clause.
9:40:52 AM
MS. WILSON offered her belief that the standard of clear and
convincing evidence has to do with the specific fact of whether
or not the parent can be located. She said, "I don't think
language in the statute affects the 'beyond a reasonable doubt'
requirements that are in the Indian Child Welfare Act for other
things that need to be determined under a 'beyond a reasonable
doubt' standard."
9:41:50 AM
REPRESENTATIVE GRUENBERG recommended that the Office of Public
Advocacy and the Family Law Section be involved with hearings
regarding [HB 114].
9:42:07 AM
CHAIR SEATON asked Representative Gatto, Gardner, Gruenberg, and
Seaton to serve on a subcommittee. He said he would also take
part, but Representative Gatto would chair the subcommittee.
9:43:05 AM
MS. WILSON, in response to a request from Chair Seaton, said she
would be available to the subcommittee, and she said she would
contact the Office of Public Advocacy.
9:43:28 AM
CHAIR SEATON announced that HB 114 was heard and held.
HB 121-SERVICE AREAS IN SECOND CLASS BOROUGHS
9:43:49 AM
CHAIR SEATON announced that the last order of business was HOUSE
BILL NO. 121, "An Act relating to consolidating or abolishing
certain service areas in second class boroughs."
[Before the committee was CSHB 121(CRA), Version 24-LS0396\Y.]
9:44:06 AM
KACI SCHROEDER, Staff to Representative Bill Thomas, House
Community and Regional Affairs Standing Committee, Alaska State
Legislature, introduced HB 121 on behalf of the House Community
and Regional Affairs Standing Committee. Ms. Schroeder
explained that when the state revenue sharing program was in
place, residents of subdivisions located outside of city limits
were able to rely on state money to form road service areas.
Now that the revenue sharing program is over, those residents
are no longer able to rely on that state money, and some of the
service areas are not taxing themselves adequately enough to
maintain services to the roads. Without adequate service, those
roads are deteriorating and becoming unsafe.
MS. SCHROEDER noted that the borough bears ultimate financial
responsibility for the service areas; however, the borough
cannot assess a borough-wide tax and apply it to the service
areas. The proposed legislation would allow second-class
boroughs to consolidate or abolish service areas that are either
nonfunctional or functioning below minimum standards. At the
same time, the bill would protect those service areas that are
taxing themselves adequately and performing their services
adequately.
9:46:01 AM
CHAIR SEATON asked if the reason the borough can't tax and
distribute "to the road service areas" is because it doesn't
have the taxing power, or because it can't allocate money.
9:46:08 AM
MS. SCHROEDER said she doesn't know the specifics of the taxing
scheme for the borough, but she indicated that someone was
online to testify who could answer that question.
9:46:34 AM
REPRESENTATIVE GATTO asked if the bill addresses groups or areas
that are capable of taxing themselves and elect not to.
9:46:39 AM
MS. SCHROEDER answered yes.
9:47:00 AM
CHAIR SEATON asked if the revenue sharing went to the districts
themselves, or to the borough to be distributed.
9:47:11 AM
MS. SCHROEDER said she doesn't know.
9:47:42 AM
REPRESENTATIVE GRUENBERG asked what the difference is between
the committee substitute (CS) and the original bill.
9:47:55 AM
MS. SCHROEDER replied that the CS simply adds an effective date.
9:48:08 AM
RYNNIEVA MOSS, Chair, Road Commission, said she recognizes that
the [Fairbanks North Star Borough] has a problem with service
areas that choose not to tax themselves and maintain the roads.
Those roads create a safety hazard for the borough, and they are
used by ambulances, fire trucks, and school buses. She said
there is a chance that something could happen and the borough
would be held liable. She stated, "This simply gives a borough
an opportunity to get rid of the risk of being responsible for
service areas that aren't maintained."
MS. MOSS revealed the reason she is following the bill is that
she wants to be assured that it isn't going to disrupt service
areas that do their job properly. She said, "I am very
comfortable with the language here - that it does protect
service areas that are doing their job right, and allows them to
continue doing their job."
MS. MOSS, regarding Chair Seaton's previously stated question
about revenue sharing, said, "That was money that was
appropriated to the borough, and then the borough distributed it
on a per-mile basis."
9:50:20 AM
MS. MOSS, in response to a question from Chair Seaton, explained
that the borough sends out the bills, while the service area
determines what the mill rate is for road maintenance. In
response to a follow-up question from Chair Seaton, she noted
that service areas are formed by election of an area; rural
services assist in deciding what the boundaries will be, then
the borough clerk arranges for an election.
9:51:17 AM
REPRESENTATIVE GATTO noted that he had served on a road service
area. He asked whether the road service area board is
submitting a mill rate that is being rejected by the borough, or
if it is submitting a request "for zero" that the borough is
accepting.
9:52:19 AM
MS. MOSS explained that, in Fairbanks, several service areas
don't have boards anymore, because the money dried up. The
borough acted as though it had the authority to authorize
maintenance, even though it didn't, because it felt a
responsibility to keep the roads safe.
9:53:11 AM
REPRESENTATIVE GATTO asked "If there's no board, but a community
decides ... [to] pave the main road leading into a subdivision,
are we saying that can't be done anymore by dissolving the
board?"
9:53:28 AM
MS. MOSS answered, "Yes, you are saying that."
9:53:40 AM
CHAIR SEATON offered his understanding that there's nothing [in
the bill] to prevent a new service area from forming again.
9:53:53 AM
MS. MOSS answered that's correct.
9:53:59 AM
REPRESENTATIVE GARDNER offered her understanding that the bill
would actually eliminate the liability that the [road service
area] board currently has for unsafe conditions, but would in no
way address the issue of unsafe roads.
9:54:08 AM
MS. MOSS answered that's correct.
9:54:16 AM
REPRESENTATIVE GRUENBERG asked if the borough would remain
responsible for the roads if the road service area was
abolished.
9:54:38 AM
MS. MOSS answered no. She clarified that, currently, as long as
a service area exists, it is not a separate entity from the
borough, as far as liability is concerned. The purpose of the
bill is to dissolve a service area that creates some risk, which
would take away the liability from the borough. In response to
a follow-up question from Representative Gruenberg, she stated
that the borough does not have road service powers; therefore,
nobody would be responsible. She noted that there are hundreds
of roads in the [Fairbanks North Star Borough] today that do not
fall under service areas. She offered examples.
9:55:40 AM
CHAIR SEATON offered his understanding [HB 121] would only
address second class boroughs.
9:56:04 AM
MS. MOSS answered yes. She added, "Home rules operate by
charter, so they do have the capability to do this, just in a
different manner."
9:56:14 AM
REPRESENTATIVE RAMRAS thanked Ms. Moss for her testimony. He
stated that this issue is a significant one, and he noted that
Fairbanks has the full support of the Fairbanks North Star
Borough assembly.
9:56:49 AM
RENE BROKER, Attorney at Law, Fairbanks North Star Borough,
stated the borough's support of HB 121. She said the borough
has 107 road service areas. She said the borough has been
confronted with the cessation of state funding and has service
areas that are unable or unwilling to tax themselves and thus
have essentially been legally nonfunctional and/or
dysfunctional. She stated, "We don't believe that it's ever a
good policy decision to completely separate control from
responsibility, which is where the borough is at right now with
its service areas. So, we're just simply urging that we regain
some control, but continue to respect the autonomy of those
service areas that are functioning as legally intended."
9:58:09 AM
DAN BOCKHORST, Local Boundary Commission, Central Office,
Division of Community Advocacy, Department of Commerce,
Community, & Economic Development, stated that the department
endorses the measure to give borough governments the flexibility
to provide for the efficient delivery of services, and [HB 121]
would do that for second class boroughs. Notwithstanding that,
he said the department would like to make two observations
regarding the bill: First, there is nothing unique about a
second class borough that would suggest that the measures in the
bill are needed for that particular class of borough, but not
for other classes of borough. He said, as noted in previous
testimony, home rule borough governments have the capacity to
exempt themselves from "this provision," but AS 29.35.450 (d)
applies to home rule borough governments. He noted that there
is a petition currently pending that would change the current
classification of the Ketchikan Gateway Borough from second
class to home rule. The provisions of HB 121 would not extend
to Ketchikan if it were to become a home rule borough
government.
MR. BOCKHORST stated his second observation is that the bill, as
written, gives greater flexibility and authority to a general
law, second borough than it does to a home rule borough
government, and under Alaska's constitution, home rule is
intended to provide for maximum local self government.
10:00:24 AM
CHAIR SEATON closed public testimony.
CHAIR SEATON announced that HB 121 was heard and held.
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at
10:00:33 AM.
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