Legislature(1997 - 1998)
02/18/1998 01:41 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 18, 1998 1:41 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Drue Pearce, Vice-Chairman Senator Mike Miller Senator Johnny Ellis MEMBERS ABSENT Senator Sean Parnell COMMITTEE CALENDAR SENATE JOINT RESOLUTION NO. 29 Proposing amendments to the Constitution of the State of Alaska requiring that the provisions of a bill that levy new state taxes require the affirmative vote of at least two-thirds of the membership of each house of the legislature. - MOVED SJR 29 OUT OF COMMITTEE CS FOR SENATE BILL NO. 274(JUD) "An Act relating to fees for probation and parole." - MOVED CSSB 274(JUD) OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION SJR 29 - See Senate Judiciary Committee minutes dated 4/28/97. SB 274 - No previous action to record. WITNESS REGISTER Mr. Ralph Bennett Staff to Senator Robin Taylor State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Presented SJR 29 Senator Jerry Ward State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Presented SB 274 Mr. Craig Johnson Staff to Senator Jerry Ward State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Commented on SB 274 Mr. Blair McCune Alaska Public Defender 900 West 5th Street #200 Anchorage, Ak 99501 POSITION STATEMENT: Commented on SB 274 Ms. Lynda Zaugg Department of Corrections 4500 Diplomacy Drive Anchorage, Ak 99510 POSITION STATEMENT: Commented on SB 274 Mr. Jim Frey SR Box 360 Gakona, Ak 99586 POSITION STATEMENT: Commented on SB 274 ACTION NARRATIVE TAPE 98-10, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:41 p.m. and noted the presence of SENATOR MILLER and SENATOR ELLIS. The first order of business was SJR 29. SJR 29 - CONST AM: SUPERMAJORITY FOR TAX LEVIES MR. RALPH BENNETT, staff to SENATOR TAYLOR, came forward to present SJR 29. He explained SJR 29 as a constitutional amendment requiring a two-thirds vote of the legislature before any new tax could be imposed. Judging from the number of tax proposals presented to the Twentieth Alaska Legislature, he stated the day is approaching when new taxes will be given serious consideration. This amendment, if adopted by the voters, would assure wide support for any new state tax. SENATOR MILLER moved SJR 29 from committee with individual recommendations. Without objection, it was so ordered. SB 274 - PROBATION AND PAROLE FEES SENATOR JERRY WARD, sponsor of SB 274, said this bill sets up a procedure for parolees to pay their debt to society. He suggested that this legislation puts responsibility back onto those people causing the problem. He commented there are 4,600 people on probation and parole currently and calculated that if each of these people paid $3.30 per day it would generate 5.5 million dollars. He said also the state needs to look at options to deal with prison overcrowding. He noted currently there is a request for proposal out to send more prisoners out of state. He emphasized that it is not the citizens' fault that people commit crimes and this bill will create a mechanism that will have criminals pay their debt to society. SENATOR WARD said the bill contains a provision for people who cannot afford to pay the $3.30. This provision says those who are incapable of paying will have their permanent fund dividend (PFD) garnished. He said the fee equals the amount of the dividend and the bill was written that way purposefully. SENATOR WARD commented that the citizens should not bear the burden of the cost of incarceration for law breakers, the criminals themselves should bear the cost. He said this is not a large cost and those who do not comply will have their permanent fund dividends attached. He stated this bill is a proper thing to be considered in light of the current tight financial situation faced by the state. SENATOR ELLIS asked if SENATOR WARD knew how long ago a previous fee was repealed. SENATOR WARD replied it was 1984, when he served in the legislature. SENATOR ELLIS asked why he had picked a fee four times larger than the national average. SENATOR WARD replied he chose the amount to be roughly equal to the amount of the permanent fund dividend. MR. CRAIG JOHNSON explained the amendment they had brought. MR. JOHNSON said the amendment was brought forward by the permanent fund division itself, and merely codifies the fact that garnishment of a PFD for the purpose of this bill will not take precedence over reparations for victims of domestic violence. He said this was suggested by the Attorney General and is a technical amendment. SENATOR MILLER moved the adoption of amendment #1. Without objection, it was so ordered. MR. BLAIR MCCUNE, representing the Public Defenders Office, expressed some concerns about the bill. He worried that payment of fees might be required as a condition of parole or probation. His office represents people in parole and probation revocation proceedings and he is concerned that caseloads might increase under this bill. He referred to criminal rule number 39 and rule number 209 of appellate procedure and said these rules require recoupment of costs for appointed counsel. MR. MCCUNE said these rules allow for a judgment to be entered in a civil action, including the garnishment of a dividend, rather than the revocation of the individual's probation or parole. MR. MCCUNE was further concerned that this bill might apply to misdemeanor probation which is generally unsupervised by a probation officer. He suggested the costs lie in supervised, felony probation. Lastly, MR. MCCUNE mentioned section 7 which reads; "the board shall revoke parole"; he believes it would be better to leave the board with more flexibility and not mandate the revocation of parole. MR. MCCUNE also noted that the asterisk fiscal note was the result of the possibility of his office encountering more probation and parole revocation hearings. SENATOR WARD remarked it was quite specific in the bill that it was those who are able to pay and choose not to who would be sent back to jail. He stated this is a revenue generating bill which, if enacted, will generate 5.5 million dollars, roughly the cost of sending 250-300 people out of state to Arizona. He emphasized this is where criminals pay for what they are costing the state. He continued, restating that this is a revenue generating bill and the yearly fee exactly equals a permanent fund dividend. He said, even so, it is not that much and only equals three quarters of an hour of work each day at minimum wage. He concluded that this revenue would free up money for education and other important state expenses. CHAIRMAN TAYLOR asked BLAIR MCCUNE about the automatic revocation of parole and noted that under section 3 the only amendment is to add to discretionary items that the judge may impose. CHAIRMAN TAYLOR said it reads; "may be required to pay" and so is discretionary and would require many steps to revoke parole. He does not see it as a mandate and inquired if MR. MCCUNE did. MR. MCCUNE replied he was looking at section 4 that says "shall require the periodic probation fee to be paid." He said he understands the court can decide conditions of probation/parole but it appears to him, due to section 4, that this is a required condition. His concern is that a person who is unable to pay will have their parole automatically revoked. He is worried about a case where the parole board will not have the discretion to give someone another chance. MS. LYNDA ZAUGG, representing the Department of Corrections, informed the committee that the department does not disagree with the concept of SB 274, but that there is concern with the fiscal impact. MS. ZAUGG explained the issue is complicated. In the late 1980's these fees existed and there was great difficulty collecting them. According to MS. ZAUGG, only ten per cent out of 3,000 were able to pay their monthly fees. She said the department is looking at the current population of 4,100 active parole cases and their potential for payment. MS. ZAUGG stated that in the 80's offenders were allowed to perform community work service in lieu of their monthly fee. This is not an option under SENATOR WARD'S bill. She said these factors make it difficult to predict how much would actually be collected under this bill. MS. ZAUGG said the fee was repealed in 1989 primarily because it was a hardship to offenders, particularly those in rural areas without a strong cash economy. She mentioned that the bill does take into consideration indigence but requires hearings to determine if an offender is indigent. These hearings will be a costly, time consuming process, again, especially for offenders in rural areas. She said the fees under this bill are much higher than the old fees and considerably higher than anywhere else in the nation. MS. ZAUGG said this bill allows for probation to be revoked in cases where the fee is not paid and this will result in probationers returning to an expensive institutional setting. She asserted that this bill requires the revocation of parole by the parole board unless the parolee shows by a preponderance of the evidence that he or she is unable to pay. According to MS. ZAUGG, this does not apply if the offender is indigent; however, in 1989 in Representative Foster's district, 99 per cent of offenders were unable to pay the fee. She cited this as a major factor in the repeal of that fee. She explained that though the bill allows for the garnishment of a PFD, the fee falls ninth in line to those debts that might already bind an offenders PFD. She noted there are currently 4,100 people under active supervision and more than 50 per cent of them have been under supervision for more than one year. She said the importance of this is that a felon who has been incarcerated at any time during a year is not eligible for the dividend. MS. ZAUGG concluded the pool of offenders with a PFD available for attachment is smaller than meets the eye. CHAIRMAN TAYLOR asked if a levy against the permanent fund dividend was utilized in order to collect fees previously and MS. ZAUGG said that was discussed at the time but was not sure if it was done. CHAIRMAN TAYLOR stated it was not part of that bill. SENATOR ELLIS asked if other agencies that might be impacted had been contacted about this bill. SENATOR WARD said part of the problem historically had been collection of the fee and that was why his bill has a third-party collection provision into it. He stated this would help relieve the burden on staff, who should not function as a collection agency. SENATOR ELLIS asked MS. ZAUGG if that meant there would not be any staff time necessary for the Department to implement this bill. MS. ZAUGG responded that it appears there would be time involved but the amount of time is unclear. SENATOR ELLIS inquired about the process of proving indigence. He asked who is required to prove what and if the whole thing is difficult to sort out. LYNDA ZAUGG replied it is always difficult when dealing with an offender expected to provide information on his or her financial situation. She said in this situation people may be resistant to providing information and a fairly elaborate process might be necessary, such is as used in the court system. MR. JIM FREY, on teleconference from Slana, said he did not have a copy of the bill and therefore would not comment. CHAIRMAN TAYLOR explained basically what the bill would do and MR. FREY replied that he thought those people didn't have any money. CHAIRMAN TAYLOR then explained the provision made for those unable to pay and MR. FREY said he'd agree with that. SENATOR WARD asked Ms. ZAUGG about the number of people on probation and parole. He had 4,600 versus her 4,100 and wanted to know what happened to the other 500 people. MS. ZAUGG replied that 4,100 represents the number of active cases; she estimated there are 600 outstanding warrants across the state. She said these people have absconded probation and will have people active in their case once they are rearrested. SENATOR MILLER moved SB 274 as amended out of committee with individual recommendations. Without objection, it was so ordered. CHAIRMAN TAYLOR announced that MR. GUANELI was present today to respond to the subpoenas issued by the committee. MR. GUANELI agreed and thanked the committee on behalf of Commissioners Pugh and Otte, as well as Attorney General Bothelo for the extra week to gather the information and deliver it to Mr. Norsworthy. MR. GUANELI, representing the Department of Law, said he was here to inform the committee what has been provided, what has not been provided and why. He said the Department of Law has provided the following: 22 case files from the office of the Special Prosecutor regarding the cases investigated by the Alaska State Troopers, one general file of correspondence and notes from the same office, and one file from MR. GUANELI's office of memoranda, notes and papers. MR. GUANELI stated the department has not asserted attorney/client privilege nor any other privilege in respect to any of that material. Everything in their possession has been turned over, according to MR. GUANELI. He stated that he personally reviewed all the documents turned over by all departments to ensure they had received all the relevant information and that all offices had been responsive to the subpoena. MR. GUANELI reported the Department of Corrections has turned over the following: one file from the Commissioner's office that had been previously reviewed by Mr. Norsworthy, one small file from the office of the Director of Institutions, and one small file from the office of the Director of Community Corrections. MR. GUANELI said these last two divisions were those with employees involved with the improper accesses of APSIN. He also said those small files contained some personnel records which were segregated. He confirmed that the remainder of the files, including notes, E- mail, and memoranda have been turned over. Additionally, there were personnel files involving a number of employees, kept both in the central office of the department and in offices within each division, that are still in the Department of Corrections' Anchorage office. MR. GUANELI observed these records require special handling. He remarked that administrative regulations dictate that not only a subpoena but a written confidentiality agreement is required for access to personnel files. He said he and Mr. Norsworthy are still in discussion about that but there was an agreement that those records would not be turned over until an agreement had been worked out. Therefore, those personnel files and the other portions of files relating to personnel records remain in the anchorage office but are ready to be turned over whenever the agreement is reached. MR. GUANELI listed further records turned over by the Department of Public Safety including: two large binders from the Commissioner's office in Juneau, along with a variety of miscellaneous papers relating to phone logs, e-mails, correspondence and certain spreadsheets involved in the audit, two large binders from the APSIN office of the Anchorage location of the department including audit records, and other miscellaneous files also dealing with the audit including inquiries made to the agency, responses to these inquiries, memos and policies. From the State Troopers, MR. GUANELI said, information has been turned over including: one box containing investigative files including reports and transcripts on 22 investigations, one box of notes, trooper notebooks and internal memos (some notations relating to other cases have been blacked out), one box of the actual cassette tapes that were transcribed, and the office has retained personnel files related to the investigation that are available to be turned over upon agreement. MR. GUANELI showed the committee a digital photo that had been electronically transmitted to him from Anchorage. He noted all the contents were clearly labeled in the common State Trooper fashion. He estimated there to be roughly five bankers boxes worth of material covering primarily the investigations and the audit. MR. GUANELI guessed the personnel records would constitute another full bankers box. He noted that he did, in fact, request the subpoenas, as it was his understanding that this was the proper way to transmit the documents to the committee. It was his office's view that many of these records are confidential by statute. Regarding these records, MR. GUANELI repeated that the subpoenas issued followed the proper procedure and he thanked the committee once again for the additional time to procure the records. CHAIRMAN TAYLOR reminded MR. GUANELI that he was under oath from a previous swearing in. He asked for a formal authentication of the records, for the record, asking if the records conveyed to the committee were kept in the normal course of business. MR. GUANELI acknowledged that the records were kept in the normal course of business and added a diligent search was made of each agency for those files and they were reviewed and properly segregated from what the department determined to be personnel records. CHAIRMAN TAYLOR detailed his question, asking if all records, ranging from notes and memos to investigative reports and interviews were all done in the process of carrying out these functions of these departments in investigating the questions that arose from the unauthorized use of APSIN. MR. GUANELI affirmed that this was correct. CHAIRMAN TAYLOR, understanding the delicate nature of these documents (some of which may carry confidentiality requirements), asked MR. GUANELI if, as an attorney, he felt the committee had different obligations under the statutes, regarding disclosure, than the Executive Branch. MR. GUANELI replied he was unable to provide legal advice to the committee as they had already retained separate counsel in the person of Mr. Norsworthy in addition to Legislative counsel. He said, however, in his view the committee stands in the shoes of the executive branch now that these documents have been conveyed. He suggested that some thought ought to be given to the use and dissemination of that material. CHAIRMAN TAYLOR said he understands this point and was simply being generic in his question. He expressed his belief that the Alaska Statutes protecting confidentiality are just as binding on the legislative branch as the executive. MR. GUANELI agreed. CHAIRMAN TAYLOR asked why it is necessary for the members of the committee or its chair to sign an agreement not to violate those state laws. MR. GUANELI replied that there is an administrative regulation carrying the force of law that requires it. He said they feel bound by that procedure. CHAIRMAN TAYLOR indicated that no one on the committee would have a problem with that, as they all understand the confidential nature of this material. He said he had asked Mr. Norsworthy to draft the agreement in as limited a fashion as possible and he intended to get a copy of that to everyone as soon as possible to expedite this proceeding. CHAIRMAN TAYLOR asked MR. GUANELI if the incidents involving the mayor of Wasilla, her husband, and her finance director were included in the 22 case files that had been discussed. MR. GUANELI believed that this matter was included but did not have a list of those particular incidents at hand. CHAIRMAN TAYLOR asked if those victims were notified what had happened in that case. CHAIRMAN TAYLOR said the mayor had brought a complaint to the State Troopers and he wondered if anyone had contacted her and informed her that prosecution had been declined in that case. MR. GUANELI did not know, but assured CHAIRMAN TAYLOR he would inquire of Commissioner Otte. CHAIRMAN TAYLOR stated, for the record, that the subpoenas are still in force as concerns those parties, but until the committee had an opportunity to review the information, they would not be in a position to ask any questions. He thanked MR. GUANELI for his cooperation and that of the Commissioners involved, and promised he would get that letter to MR. GUANELI as fast as possible in order that they might review those other records also. TAPE 98-10, SIDE B Number 001 SENATOR ELLIS protested the committee moving forward with this. He refused to sign the letter requesting subpoena powers and objected to the motion to seek those powers when it was made in committee. SENATOR ELLIS maintained that the State Troopers spent 900 staff hours so far on the APSIN cases and everyone involved, as far as he knows, believed it to be a thorough investigation. SENATOR ELLIS cited a newspaper article in which CHAIRMAN TAYLOR complained of the slowness of the investigation; SENATOR ELLIS said he had learned the work would have been completed earlier had the investigation not been interrupted by the necessity of reassigning two investigators to homicide cases over the summer. SENATOR ELLIS said that troopers who might otherwise have been working on homicides were instead occupied with the APSIN case. He said this not to minimize the seriousness the troopers assigned to the APSIN investigation, but to emphasize the scarcity of their resources. He recounted a story of a family friend whose daughter had been brutally murdered a number of years ago and was told by the troopers in the last two years that they were unable to make the progress they had hoped due to a lack of resources. SENATOR ELLIS did not propose any direct connection between these two incidents, but only meant to emphasize the lack of resources available in that department. He remarked that this troubled him, especially after learning that investigators had been reassigned back and forth between homicides and the APSIN investigation. SENATOR ELLIS asked if, in addition to Mr. Norsworthy, there was another person involved on an open-ended contract in this inquiry, as well as the committee staff. He noted the widespread concern over falling oil prices and commented that the $7,500 already spent and the obligation of an open-ended contract should be understood by everyone involved. He remarked that legislators have been kept fully apprised of the troopers' investigation and he cannot think of this as anything more than second-guessing the troopers and the Department of Law who determined that there were zero violations and nothing to prosecute. SENATOR ELLIS surmised the committee is seeking this information to second-guess that decision and see if they think, as legislators, there were criminal violations that should be prosecuted. SENATOR ELLIS did not find the photo presented by MR. GUANELI amusing. He observed that someone spent the time necessary to organize and prepare this material, which he said was turned over just about as soon as it was asked for. He has difficulty seeing where this will lead and he concluded by asking CHAIRMAN TAYLOR how he was planning to proceed. He asked if there was a time frame for Mr. Norsworthy, if there was a limit on the number of people who would be brought in, and if there were security measures in place to deal with the information transmitted. CHAIRMAN TAYLOR replied that the matter was raised during the election in 1996 when complaints were brought by citizens and candidates to the State Troopers. He noted that today is February 1998 and asked why someone chose to take the amount of time they did to investigate this. He stated the investigation was only concluded as of a few days ago when, because of the subpoena issued from the committee, someone decided they must conclude the review of whether or not they were going to prosecute. CHAIRMAN TAYLOR said the information he had indicated that, until this point, they had only reviewed eight of the 26 cases that went to their department, leaving them with eighteen cases that had not yet been reviewed. CHAIRMAN TAYLOR noted that, miraculously, that review has since been concluded in a few days. CHAIRMAN TAYLOR reflected that someone had taken a lot of time to show that no offenses had been committed and yet literally hundreds of thousands of dollars have now been spent in the investigation by the Department of Law of something that was apparently not criminal. CHAIRMAN TAYLOR stated that he did not motivate this investigation, nor did the judiciary committee. He stated the investigation was motivated by citizens whose rights to privacy had been grossly invaded. He said that the last time this occurred, an employee was terminated and that had not yet happened in this case. CHAIRMAN TAYLOR said that this spontaneous outbreak of curiosity was of such proportions as to require the inclusion of funds in the Governor's budget to revamp APSIN. Major policy has been changed within the department, manuals rewritten and new user agreements have been created due to this, according to CHAIRMAN TAYLOR. He believes the committee's purpose is to find out fully what happened; so if necessary, they may pass legislation to correct the problem. CHAIRMAN TAYLOR said in the past incident the legislature had passed legislation and was assured it was sufficient to bring criminal charges in any future case of unauthorized access. CHAIRMAN TAYLOR suggested reading the language of the law which defines unauthorized access as an unauthorized purpose and is against the law. He has not yet seen the interpretation of the Department of Law that entry into the system due to curiosity is not a violation of the law. CHAIRMAN TAYLOR does not read the law that way and remarked that if it is necessary to rewrite it in such a fashion that in the future people will be fired and prosecuted, the committee needs to know that. CHAIRMAN TAYLOR stated it is not just politicians and legislators but citizens whose privacy rights are being violated by State of Alaska employees. He said if the laws are ineptly drawn and do not allow prosecution of these people, they need to be changed. He said he is looking for an affirmative solution and there should be a very good explanation as to what went wrong and allowed this, and what is still wrong that will tolerate it. He restated that no one has lost a job. SENATOR ELLIS asked if the Chairman did not believe that an adequate explanation had been given in the joint hearing held last year. CHAIRMAN TAYLOR replied that they had been told at that hearing the investigation was not complete and the department offered to undertake one at that time. SENATOR ELLIS responded that the plan was laid out and the legislature had been apprised of their progress. CHAIRMAN TAYLOR replied that he had not seen an appraisal since the last hearing. SENATOR ELLIS thought it had been sent to the President and the Speaker and CHAIRMAN TAYLOR replied the last document arrived the 16th of February and he had heard nothing prior since last May. He said he thinks this is a major problem which may take legislation to fix and this is the committee to do it in order to make certain this does not happen to other people in the future. SENATOR PEARCE added she believed the reasons to proceed were the fact that unauthorized access should be as clear as black and white and does not appear to be so. She commented they had been told there were different levels of curiosity and she was curious herself to examine these levels of curiosity and see which results in what. She said if it is true that someone got a promotion as a result of a certain type of curiosity, she'd be very interested in that. From a financial standpoint, SENATOR PEARCE said if they find that people were disciplined by the loss of their APSIN access privileges, rendering them unable to do their job, were allowed to come to work and be paid for no service to the state, this is a misuse of funds and she wants to be aware of it. She stated this discipline is no discipline at all and, if this is true, it should come out. CHAIRMAN TAYLOR said hopefully this would be in the files and, once the agreement was signed with MR. GUANELI, they could proceed. He mentioned that much of this will have to take place in executive session and access to it will have to be carefully monitored. CHAIRMAN TAYLOR said he would circulate a copy of the letter to the committee so they could move on. SENATOR ELLIS asked why last year this was a joint effort with the House Judiciary Committee and now they were proceeding alone. CHAIRMAN TAYLOR replied it would be simpler and easier to sit down with a small group of people. SENATOR ELLIS asked if he should assume that the entire session would be the time frame in which they would continue to work on this issue. CHAIRMAN TAYLOR assured SENATOR ELLIS that he hoped not, and expected it could be wrapped up in the near future. CHAIRMAN TAYLOR mentioned that there had already been major policy changes in the department. He said this recent policy change protects legislators but not necessarily anyone else. He suggested that, as the policy making body of the state, they should take a look at these changes. SENATOR ELLIS commented that if no changes had been made, the committee would be criticizing the department for inaction. With no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 2:45 p.m.