Legislature(2003 - 2004)
03/19/2003 01:32 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 19, 2003
1:32 p.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
Senator Scott Ogan, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 9
"An Act relating to the evaluation and cleanup of sites where
certain controlled substances may have been manufactured or
stored; and providing for an effective date."
HEARD AND HELD
SENATE BILL NO. 45
"An Act relating to the Legislative Budget and Audit Committee."
MOVED CSSB 45(JUD) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 3
Proposing amendments to the Constitution of the State of Alaska
relating to an appropriation limit and a spending limit.
HEARD AND HELD
SENATE BILL NO. 2
"An Act relating to recovery of civil damages from the parents
or legal guardian of a minor; and providing for an effective
date."
HEARD AND HELD
PREVIOUS ACTION
SB 9 - See State Affairs minutes dated 2/11/03
SB 45 - See Judiciary minutes dated 3/12/03
SB 2 - See HESS minutes dated 2/24/03 and Judiciary minutes
dated 3/17/03
SJR 3 - No previous action to record.
WITNESS REGISTER
Mr. Tim Biggane
Fairbanks North Star Borough
PO Box 71267
Fairbanks, Alaska 99707
POSITION STATEMENT: Supports SB 9
Sgt. Ronald Wall
Alaska State Troopers
Department of Public Safety
PO Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Supports SB 9
Elise Hsieh
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions about SB 9
Larry Dietrick
Department of Environmental Conservation
410 Willoughby
Juneau, AK 99801-1795
POSITION STATEMENT: Answered questions about SB 9
Brad Thompson
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Answered questions about SB 9
Senator Lyda Green
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 45
Steve Branchflower
Alaska Office of Victims' Rights
1007 West 3rd Avenue, Suite 205
Anchorage, Alaska 99501-1936
POSITION STATEMENT: Answered questions about SB 45
Jacqueline Tupou
Staff to Senator Green
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about SB 45
ACTION NARRATIVE
TAPE 03-9, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present were Senators
Ellis, French and Chair Seekins. Senator Ogan was excused and
Senator Therriault arrived shortly thereafter. The first order
of business to come before the committee was SB 9.
CSSB 9(STA)-CLEANUP OF ILLEGAL DRUG SITES
SENATOR GRETCHEN GUESS, sponsor of SB 9, told members that
version V was before the committee and gave the following
explanation.
SB 9 establishes standards and guidelines to ensure that illegal
drug labs are cleaned up and safe before reoccupation. SB 9 is
the companion bill to Representative Holm's legislation.
Currently, when law enforcement makes a bust of an illegal lab,
it takes out the mass chemicals and posts a notice on the
building stating that it was an illegal lab site. The process
ends at that point because Alaska has no standards or guidelines
to ensure that the dwelling is cleaned further. SB 9 sets up a
procedure for cleanup that provides the owner with a few
options. The owner could appeal that there was a lab bust in the
building and if the owner wins the appeal, no further action is
necessary. Second, the owner could secure and test the property
for contaminants. If high levels of chemicals were found, the
property would be cleaned up, retested, and reoccupied. The
third option is to test the property after the cleanup. The
Department of Environmental Conservation (DEC) would act as the
oversight agency and the Oil Spill and Prevention Division
within DEC could most efficiently provide the standards and
guidelines for testing and decontamination. The division would
provide a list of companies eligible to do the testing and
sampling, but the division would set up guidelines for
decontamination so the homeowner could do that work him or
herself.
SENATOR GUESS informed members that the law enforcement
community proposed one of the changes in the committee
substitute (CS). Because drugs change from year to year, the
chemicals listed in the original bill are incomplete. Therefore,
the CS provides that the Department of Public Safety (DPS) will
provide a list of chemicals to DEC each year for which
guidelines will be set. That will ensure that the tests are done
for the drugs that are being used in illegal labs.
SENATOR GUESS pointed out that these dwellings cannot be
reoccupied until a property owner has self certified that the
procedures were carried out and the property may not be sold
without full disclosure. She noted this legislation has had
seven or eight hearings in the last three years and she has
found consistent and good discussion regarding why the property
owner is being blamed when a renter typically causes the
problem. This bill contains a provision that says the renter's
lease is not void if the renter caused the problem. A property
owner also has recourse in damage deposits and civil actions
that can be recovered for any damage. If criminal action is
involved, the property owner could request restitution. The
Division of Legal Services believes there is a good chance,
under the current landlord tenant law, that renters are already
under this obligation, but there are no guidelines to ensure
that a dwelling is decontaminated. She said this issue requires
a policy call and, unless one believes it is the government's
responsibility to clean up illegal drug sites, the onus must lay
with the property owner. The Legislature can give the property
owner as much recourse as possible to recoup costs or it can
allow reoccupation of the contaminated dwelling. She said she
believes it is more critical that a renter know that a home does
not contain hazardous material.
SENATOR GUESS told members SB 9 has the support of the law
enforcement community.
CHAIR SEEKINS told members that Tim Biggane from the Fairbanks
North Star Borough and Sergeant Ronald Wall from the Alaska
State Troopers were available on teleconference to answer
questions.
SENATOR ELLIS stated support for the legislation and asked if
Anchorage, Fairbanks, and the Mat-Su Borough continued to be the
hotspots for methamphetamine production in Alaska.
SENATOR GUESS told members that to her knowledge, there have
been 13 busts so far this year. Since the Anchorage Police
Department (APD) started cracking down, a lot of labs moved to
the Mat-Su and Kenai areas. Ketchikan and Juneau have also had
illegal drug lab busts in the past year.
SENATOR FRENCH asked if this legislation would apply to hotels
and motels as well as apartment rentals.
SENATOR GUESS said it would.
SENATOR FRENCH asked for an estimate of the cost of a typical
cleanup.
SENATOR GUESS said her research shows the typical cost of
testing and cleanup runs between $2,000 and $5,000. Testing
costs about $200 per chemical and six chemicals are included in
the new chemical list. She talked to a cleanup company in Juneau
that would charge 70 cents per square foot. She said the cost
would vary due to the size of the area and whether a "suitcase"
or contained lab was used.
SENATOR FRENCH asked if owners who want to do the cleanup
privately could get a cleanup manual from DEC.
SENATOR GUESS said DEC has to have decontamination guidelines
that must be followed. The Juneau business told her that a
typical cleanup would involve blasting the paint from the walls,
repainting, resealing and removing the carpet.
SENATOR THERRIAULT asked, if the bill allows for the sale of the
property with full disclosure, why it can't be rented with full
disclosure. He also asked how long the disclosure time period is
in effect and whether it remains with the property forever even
though it was officially cleaned up.
SENATOR GUESS said that even if a property is sold, it couldn't
be reoccupied until it is cleaned. Regarding the timeframe for
disclosure, she said that once it's been cleaned and DEC has
approved the test results, "it goes off of the list."
SENATOR THERRIAULT asked whether he as the owner of a recently
busted drug lab could reoccupy the property.
SENATOR GUESS said she does not know if anyone could stop the
owner from reoccupying the property, but the owner could not
allow anyone else to reoccupy it.
SENATOR THERRIAULT asked if the state cannot stop the owner from
reoccupying the property and the owner sold it, whether the new
owner could occupy it.
SENATOR GUESS said to her knowledge the state cannot stop the
owner from occupying the property, but the state could stop the
owner from having anyone else occupy it.
CHAIR SEEKINS asked if that would apply even if the owner
disclosed the situation and the tenant agreed to assume the
risk.
SENATOR GUESS said that it would. She surmised that situations
would arise where people might not be able to afford any other
housing. Offering a waiver provision would delve into the
landlord tenant law and other things she did not explore.
SENATOR THERRIAULT noted that Senator Guess mentioned higher
dangers to infants because of crawling on carpets and asked
whether methamphetamine is absorbed through the skin and whether
the concern is with the end product only or all of its
components that might have been spilled in the making.
SENATOR GUESS said that all of the drugs on the list could be
absorbed through the skin and from breathing. The common health
concerns are skin burns, eye irritation, and respiratory
problems from inhaling the chemicals.
SENATOR THERRIAULT pointed out that different sections of a
house, such as a garage, could be separated from the living area
by doors. He asked whether all of the restrictions would apply
to the entire house if the activity took place in the garage.
SENATOR GUESS said they do and she hasn't grappled with that
issue because she doesn't know what chemicals might seep into
the dwelling. In that situation, she would assume the landlord
would test immediately to find out whether chemicals exist in
the dwelling.
CHAIR SEEKINS asked if the entire hotel would be closed if
someone set up a lab in one room.
SENATOR GUESS said the previous committee discussed this issue.
At this point, it applies to the dwelling, which would be the
hotel room and not the entire complex. Law enforcement officials
are trained to be able to tell whether other rooms have been
impacted. They would inform the property owner if adjoining
ducting and other systems could have impacted other rooms. She
explained that this bill is focused on the place of activity and
law enforcement officials feel competent to determine whether
any other areas might be contaminated.
CHAIR SEEKINS asked Senator Guess whether she considered
mandatory restitution from the person that caused the damage as
part of the sentencing
SENATOR GUESS said that according to testimony in the past, an
owner could get restitution now if there is a criminal
proceeding. She looked into including a restitution provision in
the bill to ensure that it is required, but was told by the
Division of Legal Services it was unnecessary because the
property owner has that vehicle along with a civil vehicle and
damage deposits.
CHAIR SEEKINS expressed concern that using a civil vehicle may
cost as much to recover as the restitution is worth. He said
because the state will be requiring the owner to bear the cost
of cleanup, it should mandate restitution from whomever caused
the damage as part of the sentence.
SENATOR FRENCH said it is virtually guaranteed that restitution
would be ordered as part of a sentence. He said a judge would
have to take into account a person's ability to pay, but
restitution would be ordered as part of the criminal sentence
and, if any assets are available, the owner could recover.
SENATOR DYSON said the Senate HESS Committee discussed the same
question and Senator French's answer is correct. However, he had
to remind himself that the primary intention of the legislation
is the safety of the next occupants.
CHAIR SEEKINS said he agrees with Senator Guess's intention; he
is just trying to protect the innocent party. He then asked why
this legislation is not being used to address other homes that
contain health hazards that are not the result of illegal
activities.
SENATOR GUESS said that when researching this issue, she found
that other laws provide a tremendous amount of coverage. This
legislation is focused on solving one problem.
CHAIR SEEKINS noted that no other laws have "the teeth" this
bill has.
SENATOR GUESS offered to provide Chair Seekins with a
comprehensive list of how the state deals with other hazardous
materials within dwellings.
SENATOR FRENCH asked Sergeant Wall where the responsibility for
the cleanup of methamphetamine labs falls right now.
SENATOR FRENCH said in many cases the labs are not being
cleaned. The residences are being reoccupied shortly after the
labs are discovered and dismantled.
SENATOR FRENCH asked if law enforcement officials haul away the
obvious remnants and the trace materials stay behind.
SERGEANT WALL said that is correct. Law enforcement officials
remove gross contaminants and items that contain contaminants
from the residence. The Drug Enforcement Agency (DEA), through a
federal program, has a company that packages and removes
contaminants, but that company never sets foot inside of the
residence.
SENATOR GUESS told members that she has found two situations to
be the most common. The first is one in which the property owner
does not care and re-rents the property. The other situation is
one in which the property owner does care, but has nowhere to go
for information. She recalled a case in Juneau where the owner
was unable to get information from state or city agencies so he
gutted the house and burned the damaged material because the
city dump would not take it. The owner was then fined by the
state for doing so. She said currently there's no way of knowing
the standard to which a place is cleaned.
SENATOR THERRIAULT questioned whether the wall paint would be
sand blasted down to sheetrock or whether the walls are being
steam cleaned.
SENATOR GUESS said she was told the paint needs to be removed
down to the sheetrock and the sheetrock needs to be resealed.
The same applies to the carpet; the pad needs to be removed and
the floor needs to be resealed before new carpet is installed.
She noted that law enforcement officers have testified that they
can detect methamphetamine in the walls after they have been
repainted.
CHAIR SEEKINS asked if the goal of sealing would be to trap the
chemicals within the sheetrock.
SENATOR GUESS said that repainting or steam blasting does not
trap the chemicals.
CHAIR SEEKINS asked Elise Hsieh and Tim Biggane to comment.
MS. ELISE HSIEH, Assistant Attorney General, Department of Law
(DOL), told members that in response to an earlier question
about whether the owner could reoccupy the property, language on
page 4 in subsection (c) reads, "...or, being the owner of
property, knowingly occupies or uses the property, in violation
of this section is guilty of a class A misdemeanor." She said
who would prosecute and enforce that provision is another
matter.
CHAIR SEEKINS asked if knowingly jeopardizing the health of a
child is legal in Alaska statutes.
MS. HSIEH said she is not as familiar with that area of law, but
she assumes there are statutes with general language that would
apply to that situation.
MR. TIM BIGGANE, Director of Emergency Operations in the
Fairbanks North Star Borough, told members that this bill is
necessary because chronic exposure to methamphetamine lab
chemicals or byproducts has the potential to cause both long and
short term health problems. Children are particularly
susceptible to the residue of chemicals used during manufacture
that remain in furniture, window treatments, carpets and other
places. His office has been involved with owners of facilities
used as drug labs. About 50 percent of the owners want to know
what needs to be done to clean the property. He stated his
division supports this legislation as does the mayor and the
assembly.
2:10 p.m.
SENATOR THERRIAULT asked if all of the furniture must be
destroyed or whether it can be certified as clean.
SENATOR GUESS said she would look to DEC's contamination
guidelines for an answer and would get back to Senator
Therriault.
SENATOR THERRIAULT remarked that if the paint must be scraped
off of the walls, he couldn't imagine what would be done to
clean a mattress.
CHAIR SEEKINS asked if DEC provided draft guidelines or any
indication of what may be involved.
SENATOR GUESS said DEC hasn't, but other states have draft
guidelines.
MR. LARRY DIETRICK, Acting Director of the Spill Prevention and
Response Division, DEC, explained to members that the guidelines
would be chemical-specific so there is a big difference between
the cleanup requirements for lead-based paint, a volatile
organic compound cleanup, or more sophisticated chemical
compounds. DEC would approach the guidelines based on the
compounds that have been encountered in these labs. The standard
for children's exposure would be used. DEC would specify the
analytic methods, the sampling protocols, and the cleanup
guidelines. DEC has looked at guidelines used in other states
and found that the State of Missouri has a very simple cleanup
guideline that is very general and not chemical specific. He
pointed out that a large laboratory using a variety of chemicals
and adjoining ventilation systems in a condo unit would be much
more complicated to clean up. He repeated that guidelines would
be driven by the types of chemicals and the setting in which
they are found. DEC will propose guidelines that address simple
to complex situations and the guidelines may be modified or
upgraded later on if a more elaborate scenario occurs.
CHAIR SEEKINS asked Mr. Dietrick to provide copies of the
guidelines used by other states.
SENATOR THERRIAULT asked if anything in the bill would trigger
use of the 470 fund.
MR. DIETRICK replied, "From the response perspective, we stay
outside of private dwellings. That's a problem for us and we
can't legally go into a private dwelling - that's a search
warrant situation for us...." He said DEC has responded to these
home lab situations when the contamination spreads to the
outside environment, such as in the groundwater.
SENATOR THERRIAULT asked if there would be any way the owner
could ask DEC to help and pick up the tab.
MR. DIETRICK said if the owner asks for technical assistance,
DEC tries to provide it, but if DEC was in a regulatory mode
that would be another situation.
SENATOR THERRIAULT asked if the homeowner would have access to
the [470] account.
MR. DIETRICK said the owner would not.
There being no further questions, Chair Seekins said he would
compare SB 45 and Representative Holm's bill, get the guidelines
from DEC, and bring the bill before the committee again.
SENATOR GUESS asked if public testimony was closed.
CHAIR SEEKINS said he would always try to accommodate those who
want to give public testimony.
SB 45 was held in committee.
SB 2-PARENT LIABILITY FOR DAMAGE BY CHILD
SENATOR DYSON, sponsor of SB 2, informed members he introduced
this legislation at the request of several school districts and
the Alaska Association of School Boards (AASB). It removes the
liability limit of $10,000 for acts of vandalism. He said he
originally viewed this legislation as a simple matter, but as he
began "stumbling around in the legal woods," he stepped on
several other issues he was unaware of.
TAPE 03-9, SIDE B
SENATOR DYSON informed members that if version S of SB 2 were
adopted, it would be used as a partial revisor's bill to
eliminate some of the ambiguities in the law. It would also
establish that a court should pursue the minor that did damage
before pursuing the parent. It also clarifies that foster
parents, subsidized legal guardians, and subsidized adoptive
parents are not held liable for the actions of the behaviorally
challenged children for which they have accepted responsibility.
He asked that the committee adopt version S as the working
document.
SENATOR THERRIAULT moved to adopt version S of SB 2 as the
working document. There being no objection, it was so ordered.
SENATOR DYSON explained the changes in version S as follows:
· Section 1 deletes the $10,000 limit on parental liability
in existing law
· Section 2(c) exempts the legal guardian from liability
SENATOR DYSON said that provision created a lot of discussion.
He misspoke at the first hearing when he said legal guardians
would not be liable for the actions of a child who was actually
a ward of the state. Subsequently he found two cases that are
contradictory. Section 2(c) will set that matter straight in
statute. The Division of Family and Youth Services (DFYS) does
not have insurance, but the state does have risk management
insurance to provide protection. He continued explaining the
changes in version S.
· Section 3 clarifies that legal guardians are held harmless.
Subsection (b) specifies that parents who adopt a hard to
place child are also held harmless. Most of those adoptions
are subsidized because the children are likely to end up in
an institution or group home if the adoptive parents do not
get help.
· Subsection (d)(2) is new and clarifies that action may be
taken against the child.
SENATOR DYSON said that since he introduced the bill, he has
received a number of calls asking him why the law will go after
the parent and not the child who did the damage. The Division of
Legal Services told him that one could go after the child and
the child's assets, including dividends, until the debt is
satisfied. He said he is very pleased with the latest version of
the bill as it accomplishes several things that need to be
addressed and provides a clear trail for holding people
accountable.
SENATOR THERRIAULT asked if this language ties the exemption for
the legal guardian to state placed children only or whether a
family member who acts as a legal guardian, such as an uncle,
would be exempt.
MR. BRAD THOMPSON, Director of Risk Management, Department of
Administration (DOA), said that Senator Therriault's question is
answered in existing statute, AS 13.26.070. It reads, "A
guardian is not liable to third persons by reason of the
parental relationship for acts of the ward." That is the law
Senator Dyson is trying to correct because it conflicts with AS
34. He does not believe it is restricted to guardians through
the state's activity.
SENATOR FRENCH said Senator Therriault's question brings up the
most interesting policy call this legislation makes, that being
that it exempts guardians trying to "do good," such as
grandparents.
SENATOR ELLIS said he understands denying a student loan to a
child involved in a bad act until the debt is made good, but he
asked for an explanation of how a child's assets would be
attached.
SENATOR DYSON said he assumes that is within the court's purview
to decide what is appropriate. He expects it would most often
apply to a teenage minor who might own a car.
SENATOR ELLIS asked if the child would be required to pay back
100 percent of the debt owed before benefiting from a student
loan or any other state benefit.
SENATOR DYSON replied it is best to leave those decisions to the
court.
SENATOR THERRIAULT said he worked on the original statutory
language and at that time he heard from quite a few parents who
said that the state wouldn't let them control their children,
but the state would hand them the bill for damage done by the
children. Those parents cautioned they would use section 2 of
the statute so that when the children went to a movie, the
parents would call the police and report them as runaways. He
asked if Senator Dyson has heard similar comments.
SENATOR DYSON said he hasn't but a similar bill is working its
way through the House. In testimony before the House
committees, people have said that the first recourse is to a
homeowner's policy, and if the $10,000 limit is removed, some
homeowners' policies may increase. He also heard from parents
who said the state would not protect them when their children
are abusive, but wants to take everything they own if their
children do damage elsewhere.
SENATOR FRENCH noted that a judge might not read the recovery
against the minor provision to mean that the entire judgment
must be put on the minor so the court would have to collect from
the parents. He questioned whether the bill should contain a
provision that says the liability is joint and severable. That
way, the court would proceed against both in tandem, and if the
minor has easily recoverable assets, those would be taken first.
The committee took a brief at-ease.
2:40 p.m.
SENATOR ELLIS asked if the committee has information on the
largest dollar amount of an act of youth-induced vandalism.
SENATOR DYSON said he received some information from his school
district and believes the amount was between $300,000 and
$400,000.
SENATOR ELLIS said he participated in discussions about the
original legislation when the amount was increased from $2,000
to $10,000. This proposal is to have no limit. He said he agrees
with Senator Dyson that he resents paying for other people's
children who are out of control, but he encouraged members to
seriously consider the consequences of changing the liability
limit amount from $10,000 to no limit.
SENATOR DYSON told members the House version of the bill
contains a $25,000 limit and he believes this issue would be
dealt with in conference committee. He said all that parents
have is classic bankruptcy protection that allows them to keep
equity in their home.
CHAIR SEEKINS said he hates to see any family come to that, but
he hates to burden the public with the activities of an
unsupervised child. He said this bill would provide an
incentive for parents to know whom their children are with and
where they are. SB 2 was held in committee.
SJR 3-CONST AM: APPROPRIATION/SPENDING LIMIT
SENATOR DYSON, sponsor of SJR 3, told members that former
Senator Donley proposed a constitutional spending limit last
year when the Legislature was discussing the state's fiscal
difficulties. It passed the Senate but not the House. As he read
through Senator Donley's committee discussions and notes he
found that in 1981 a previous constitutional amendment
established a spending limit with an escalator clause that would
have set last year's general fund spending limit at over $6
billion. It also contained a provision that if court interpreted
that the spending limit was reached, one-third must be spent on
capital projects. The upshot is that constitutional spending
limits never worked.
SENATOR DYSON explained that Senator Donley's proposal said any
spending increase would be limited to 4 percent of the amount
spent two years earlier. To spend another 2 percent, a two-
thirds vote was required and to spend 2 percent beyond that, a
three-quarter vote was required.
SJR 3 is virtually the same resolution that passed the Senate
last year. It excludes payments to the railroad, the permanent
fund, money traded between state agencies, dividends and pass
through money from the federal government. It will require a
supermajority vote to increase the budget more than 4 percent
every two years.
2:49 p.m.
SENATOR THERRIAULT asked if SJR 3 is a reintroduction of Senator
Donley's resolution.
SENATOR DYSON said it is.
SENATOR ELLIS noted that Governor Murkowski has said he does not
support a constitutional spending limit because he plans to
exercise fiscal discipline. He asked Senator Dyson if he changed
the Governor's mind.
SENATOR DYSON said he has not. He has had significant
discussions with Ms. Frasca of the Office of Management and
Budget (OMB) and he hopes someone from the Administration will
be present today to suggest improvements.
SENATOR THERRIAULT said the constitution expressly gives the
Legislature the power, without interaction with the Governor, so
it is not necessary to change his mind.
SENATOR ELLIS said although it is not required, it is advisable.
SENATOR FRENCH referred to a statement made earlier by Senator
Dyson about how governments have a hard time breaking the habit
of spending other's money and remarked that Alaska is a perfect
example of the fallacy of that position because the Legislature
has cut spending over the last decade.
SENATOR DYSON said it is quite surprising to see that the
Legislature is spending less now per capita than it was pre-
Prudhoe Bay. However, he does not believe the general population
believes that legislators are trustworthy without the
Legislature voluntarily putting significant restrictions upon
itself. He said he hopes the Legislature acts responsibly and
doesn't need to impose the limit. However, Senator Donley found
that for the spending limit to come into play, the Legislature
would have to spend more money than what is allowed, someone
would have to file suit, and the court would have to rule that
the Legislature acted unconstitutionally.
SENATOR ELLIS asked Senator Dyson if he said this resolution is
largely a public relations exercise to build trust.
SENATOR DYSON said he believes, and it was Senator Donley's
position, that this must be done to build the public's
confidence that the Legislature is operating within boundaries
that are not easily mutable. He said he suspects everyone agrees
something needs to be done to bring in more revenue, but Senator
Donley believes the public will not support any new revenue
sources unless they trust the Legislature with their money. He
said this would help. His last point was that someone must take
court action to impose the limit and he suspects that action
will seldom be invoked, but it's a good exercise in discipline.
SENATOR FRENCH asked Senator Dyson for a copy of the background
materials he referenced.
SENATOR THERRIAULT said that Senator Donley was concerned that
the public was convinced that the Legislature had been prudent
and would continue to be prudent. He asked if the existing
spending limit set $2.5 billion as the base and ratcheted it up
every year.
SENATOR DYSON said that is correct; the escalator clause
provides for inflation and population increases.
SENATOR THERRIAULT said that points out why statutory programs
should never automatically be inflation proofed - spending would
shoot through the roof.
There being no further questions or testimony, Chair Seekins
told members he would bring this legislation before the
committee at a later time. He then announced the committee would
take up SB 45.
SB 45-LB&A CRIMES AND COOPERATION
SENATOR LYDA GREEN, sponsor of SB 45, told members that a
proposed committee substitute version Q was prepared and was the
result of concerns expressed during a previous committee
hearing.
SENATOR THERRIAULT made a motion to adopt version Q as the
working document.
There being no objection, Chair Seekins announced that version Q
was before the committee.
SENATOR GREEN gave the following explanation of the changes made
in version Q:
· the felony status was changed to a misdemeanor throughout,
and accomplishes the same purpose
· the term "public employee" was changed to "state employee"
· on line 21 of page 2, the expression, "an appointing
authority may appoint" includes all state employees
· Section 4 on line 23 of page 2 adds to current statutory
language so that whistleblower status would cover
interference or any failure to cooperate with an audit or
other matter within the authority of the Legislative Budget
and Audit Committee.
CHAIR SEEKINS asked Senator Green about the proposed amendments.
SENATOR GREEN explained that Senator Therriault has one
amendment that contains some deletions and the other amendments
pertain to changes in the reporting authority.
SENATOR ELLIS asked Senator Green the level of misdemeanor and
the maximum penalty it carries.
SENATOR GREEN said the penalty is a class A misdemeanor. She
deferred to Mr. Branchflower for further details.
MR. STEVE BRANCHFLOWER, Office of Victims' Rights, Legislative
Affairs Agency, told members that a class A misdemeanor carries
a maximum jail term of one year and a maximum fine of $2,000 and
would be for hindering the Legislative Budget and Audit (LBA)
Committee in the first degree. The second degree is a class B
misdemeanor with a maximum penalty of 90 days in jail and a
fine.
SENATOR GREEN asked Mr. Branchflower to describe how a court
would handle the probable sentence.
MR. BRANCHFLOWER said it would depend on a person's prior
criminal history. Neither statute would subject the defendant to
presumptive sentencing because that only applies to felonies. A
judge would have total discretion in terms of fashioning a
sentence. The judge would look to the person's background and
consider the arguments. The court could also request a pre-
sentence report.
SENATOR ELLIS asked if, upon conviction, there could be a
significant find and someone could conceivably go to jail for up
to one year.
MR. BRANCHFLOWER said that is correct for a first-degree
conviction for a class A misdemeanor.
SENATOR ELLIS asked if that is the charge for not cooperating
with the LBA committee.
MR. BRANCHFLOWER said it would be for violation of AS 11.56.870,
hindering the LBA committee as a state employee.
CHAIR SEEKINS asked if hindering means more than not
cooperating.
MR. BRANCHFLOWER said that is correct: hindering contemplates
all of the conduct that is set out on the top of page 2, so the
person would have to actively obstruct as opposed to failure to
provide information in response to a request.
SENATOR ELLIS asked what the underlying rationale is for the
heavy hand in regard to the LBA Committee and not to the other
standing legislative committees.
MS. JACQUELINE TUPOU, staff to Senator Green, told members that
an amendment proposed by Senator Therriault might resolve that
concern by adding another layer to this process so that the
consequences do not happen immediately.
SENATOR THERRIAULT moved to adopt Amendment 1 and asked that it
be considered a conceptual amendment to give the legal drafter
some leeway for corrections.
SENATOR ELLIS objected.
SENATOR THERRIAULT told members that when he looked at the
language on page 2, lines 3 and 4, he was concerned about who
the words "committee or its staff" referred to. As the outgoing
chair of the LBA Committee, his staff consisted of the auditor
and all of her personnel, the fiscal analyst and his personnel,
and the Senator's personal staff as well as a committee person
who interacted between his office and the others. In addition,
all of the LBA Committee members had a staff member. He did not
feel it was appropriate that a request from any one of those
members or their staff would trigger this provision and
jeopardize their employment and subject them to a fine. He
explained that Amendment 1 would replace the words "committee or
its staff" with "the legislative auditor or the legislative
fiscal analyst". He advised that Pat Davidson and David Teal
now hold those positions. Therefore, if their shops make an
official request for information, this provision would be
triggered if the information were withheld. He noted that he
could envision departments wanting to protect social security
numbers, income information, or other confidential information
from his staff because they don't work under any canons of
confidentiality. However, the Legislative Budget and Audit staff
and the Legislative Finance staff do so agencies should be
comfortable sharing that information with those two divisions.
The wording of Amendment 1 solves his concern.
SENATOR ELLIS said that Amendment 1 is a huge improvement and he
withdrew his objection.
CHAIR SEEKINS announced that Amendment 1 as a conceptual
amendment was adopted.
SENATOR GREEN told members that Section 5 was incorporated at
Senator Therriault's request.
MS. TUPOU explained that Section 5 is a housekeeping issue. In
1980 when the permanent fund board was established, there was a
provision requiring legislative confirmation of board members.
It also provided that LBA would hold some public hearings and
offer recommendations on the nominees. In 1982, a court case
decision declared that provision unconstitutional. She surmised
that provision was removed elsewhere but because computer
programs did not provide word search abilities at that time, it
was never removed from these sections of statute.
CHAIR SEEKINS noted that Section 5 was already adopted as part
of version Q.
MS. TUPOU told members that Amendment 1 would add another layer
so that if an auditor didn't get the requested information, they
would notify Ms. Davidson who would make the official call. The
violation would be triggered if her request went unanswered. The
person must be a public servant, which implies public trust.
SENATOR ELLIS recalled serving on the Senate Judiciary Committee
with Senator Taylor who was frustrated that he didn't have more
power to obtain information. That is what prompted his question
about why these powers and potential penalties would not apply
to other legislative committees.
TAPE 03-10, SIDE A
3:14 p.m.
SENATOR GREEN said that has to do with the role of the LBA
Committee, and Legislative Finance partners with the LBA
Committee in doing investigative work. That standard is higher
because often investigations are the result of questionable
activity.
SENATOR ELLIS asked Senator Green why she changed her mind and
changed the felony charge to a misdemeanor charge.
SENATOR GREEN said after she left the last meeting, it dawned on
her that the real question is what is the appropriate penalty
that would get the desired result and act as an incentive for a
person to cooperate.
SENATOR FRENCH expressed concern that this is a criminal
prosecution that could be used to punish someone for
discouraging full cooperation. He provided the following
hypothetical example. Two department employees are ready to go
home at 4:30 and an LBA auditor calls and requests a large
report right then. One of the employees suggests they say they
are too busy to get to it today. That employee has now
discouraged the other worker from fully cooperating with a
legislative auditor. He said that may seem like a trivial
example, but that person could be prosecuted for a crime. He
said the real weapon is a person's job. If a person is not
doing his or her job and is malingering instead of making copies
for an auditor, that person should be fired. He maintained that
no judge would put anyone in jail for breaking this law. He
said that losing one's job as a consequence seems to him to be a
more realistic approach to the problem.
CHAIR SEEKINS countered that he does not think any judge would
convict anyone of a crime for putting off a request until the
following morning. He asked Senator French if he would
prosecute such a case.
SENATOR FRENCH said judges do not convict; juries do. He said he
frequently goes before juries and tells them their decision to
make is not whether this is a big or small violation, their
decision is whether the law has been broken.
CHAIR SEEKINS asked if the prosecutor's office would take on
such a case considering its budget constraints.
SENATOR FRENCH said it would not. He said the addition to the
whistleblower statute is a great improvement.
SENATOR THERRIAULT said, as past Chair of the LBA Committee, he
would have asked the auditor whether the report was provided the
next day or whether the employees were cooperating. He noted
the thing that differentiates Legislative Finance and the
Legislative Budget and Audit Committee from other legislative
committees is that those shops are professional ongoing
operations. The make-up of legislative committees and staff
changes regularly. He asked members to recognize that the
directors of both agencies would be involved in the decision
about whether or not a violation occurred.
SENATOR GREEN added that she has been impressed that an audit
might take six months to a year and information is not usually
expected within the same day.
SENATOR THERRIAULT made a motion to move CSSB 45(JUD) from
committee with four zero fiscal notes and the understanding that
committee staff would review the final work product when it
comes back from the Division of Legal Services and, if staff
thinks it contains anything more than what was discussed, the
bill would be brought back before the committee.
CHAIR SEEKINS announced that with no objection, the motion
carried. There being no further business to come before the
committee, he adjourned the meeting at 3:22 p.m.
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