03/02/2015 01:00 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing Lieutenant Governor Successor | |
| SB49 | |
| SB5 | |
| SB41 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 5 | TELECONFERENCED | |
| += | SB 41 | TELECONFERENCED | |
| += | SB 49 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 2, 2015
1:07p.m.
MEMBERS PRESENT
Senator Lesil McGuire, Chair
Senator John Coghill, Vice Chair
Senator Mia Costello
Senator Peter Micciche
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING
Lieutenant Governor Successor
Craig Fleener
- CONFIRMATION ADVANCED
SENATE BILL NO. 49
"An Act allowing appropriations to the civil legal services fund
from court filing fees."
- MOVED SB 49 OUT OF COMMITTEE
SENATE BILL NO. 5
"An Act relating to loss of income and valuing property for
orders of restitution."
- HEARD & HELD
SENATE BILL NO. 41
"An Act relating to criminal history record checks for
psychologists and psychological associates; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 5
SHORT TITLE: RESTITUTION: PROPERTY AND INCOME LOSS
SPONSOR(s): SENATOR(s) MICCICHE
01/21/15 (S) PREFILE RELEASED 1/9/15
01/21/15 (S) READ THE FIRST TIME - REFERRALS
01/21/15 (S) L&C, JUD
02/19/15 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/19/15 (S) Moved SB 5 Out of Committee
02/19/15 (S) MINUTE(L&C)
02/20/15 (S) L&C RPT CS 5DP
02/20/15 (S) DP: COSTELLO, STEVENS, GIESSEL, MEYER,
ELLIS
02/20/15 (S) FIN REFERRAL ADDED AFTER JUD
03/02/15 (S) JUD AT 1:00 PM BUTROVICH 205
BILL: SB 41
SHORT TITLE: PSYCHOLOGIST & ASSOC CRIM HISTORY CHECKS
SPONSOR(s): SENATOR(s) GIESSEL
02/04/15 (S) READ THE FIRST TIME - REFERRALS
02/04/15 (S) L&C, JUD
02/17/15 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/17/15 (S) Moved SB 41 Out of Committee
02/17/15 (S) MINUTE(L&C)
02/18/15 (S) L&C RPT 3DP 1NR
02/18/15 (S) DP: COSTELLO, GIESSEL, STEVENS
02/18/15 (S) NR: ELLIS
03/02/15 (S) JUD AT 1:00 PM BUTROVICH 205
BILL: SB 49
SHORT TITLE: CIVIL LEGAL SERVICES FUND
SPONSOR(s): SENATOR(s) MCGUIRE
02/11/15 (S) READ THE FIRST TIME - REFERRALS
02/11/15 (S) JUD, FIN
02/27/15 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/27/15 (S) Heard & Held
02/27/15 (S) MINUTE(JUD)
03/02/15 (S) JUD AT 1:00 PM BUTROVICH 205
WITNESS REGISTER
CRAIG FLEENER, Nominee
Special Staff Assistant
Office of the Governor
Juneau, Alaska
POSITION STATEMENT: Testified as nominee to the position of
lieutenant governor successor.
GENEVIEVE WOJTUSIK, Staff
Senator Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information related to SB 49.
CHUCK KOPP, Staff
Senator Peter Micciche
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented information on SB 5 on behalf of
the sponsor.
QUINLAN STEINER, Director
Public Defender Agency
Anchorage, Alaska
POSITION STATEMENT: Answered questions related to SB 5.
CHRIS NETTLES, National Federation Independent Businesses (NFIB)
and President, Geo Tek Alaska, Inc.
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 5.
SENATOR CATHY GIESSEL
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 41.
QUINLAN STEINER, Director
Public Defender Agency
POSITION STATEMENT: Offered to answer questions.
ROBERT LANE Ph.D., Federal Advocacy Coordinator
Alaska Psychological Association (AK-PA)
Anchorage, Alaska
POSITION STATEMENT: Testified that AK-PA plans to be a part of
the process of drafting regulations related to SB 41.
PAMELA VAN HOUTEN, representing herself
Petersburg, Alaska
POSITION STATEMENT: Testified that SB 41 as an important public
safety tool.
SARAH CHAMBERS, Operations Manager
Division of Corporations, Business and Professional Licensing
Department of Commerce, Community and Economic Development
Juneau, Alaska
POSITION STATEMENT: Explained the DCCED annual $20,000 plus
fiscal note for SB 41.
ACTION NARRATIVE
1:07:56 PM
CHAIR LESIL MCGUIRE called the Senate Judiciary Standing
Committee meeting to order at 1:07 p.m. Present at the call to
order were Senators Coghill, Micciche, Costello, Wielechowski,
and Chair McGuire.
^Confirmation Hearing Lieutenant Governor Successor
Confirmation Hearing
Lieutenant Governor Successor
1:08:14 PM
CHAIR MCGUIRE announced the first order of business would be a
confirmation hearing for Craig Fleener. She asked Mr. Fleener to
tell the committee why he would like to be the lieutenant
governor successor.
1:08:22 PM
CRAIG FLEENER, Nominee, Lieutenant Governor Successor, said it's
a privilege to be offered the position. He talked about trying
to be of service to the state and country and described this as
another step in the progression.
CHAIR MCGUIRE asked him to tell the committee about himself.
MR. FLEENER said he was born in Anchorage and grew up in Fort
Yukon. He served in the military and is still in the Alaska
National Guard, currently serving as the senior intelligence
officer of the 176th Wing in Anchorage. He worked in tribal
management for about 16 years, became a wildlife biologist,
served as executive director of the Council of Athabascan Tribal
Governments, worked for the Alaska Department of Fish and Game
for five years, and is now the Arctic Policy Advisor. He noted
that this is a job he unknowingly has been building toward for
decades.
1:13:29 PM
SENATOR COGHILL asked if he sees any improvements that might be
made in the Office of the Lieutenant Governor.
MR. FLEENER replied he believes there are ways to improve the
voting system to ensure better access for all voters. His goal
would be to have it be one of the best systems in the country.
SENATOR COSTELLO asked if he would keep the current lieutenant
governor's staff and if he would move his family to Juneau in
the event he became lieutenant governor. She stated support for
the appointment.
MR. FLEENER replied he would look at each of the staff before
making any changes and he believes that both the governor and
lieutenant governor need to be in Juneau.
1:18:00 PM
SENATOR COGHILL expressed gratitude for the work Mr. Fleener did
on the emergency response system and for being willing to serve.
CHAIR MCGUIRE echoed the previous comments.
1:18:50 PM
DOUG VINCENT-LANG, representing himself, Anchorage, Alaska,
suggested the committee look more deeply into Mr. Fleener's
background and select a better role model for all Alaskans. He
mentioned a questionable Facebook posting and questionable
travel expenses.
CHAIR MCGUIRE found no further public comment and motioned to
forward the name Craig Fleener to the full body for further
consideration.
1:20:48 PM
At ease
1:23:07 PM
CHAIR MCGUIRE reconvened the meeting and asked Mr. Fleener to
respond to the Facebook post question.
MR. FLEENER explained that it was someone else's Facebook
posting but he did comment on it on his Facebook page.
CHAIR MCGUIRE said copies of the page are being distributed.
SENATOR MICCICHE said his understanding is that this was not
outside of what folks would think is typical for a Facebook
posting, but it's a good cautionary note about the far-reaching
effect of posting on social media sites.
SENATOR COGHILL asked for an explanation of the supposed
inappropriate travel.
1:25:21 PM
MR. FLEENER explained that he took a trip to Portland for an
Association of Fish and Wildlife meeting and he took his wife
along. This is not uncommon. What typically happens is that he
pays the entire cost of the trip and is reimbursed for what was
a state expense. He said he believes what is at issue is the
cost of fuel for the rental car. He received a copy of the
travel authorization (TA) about the time he resigned to run for
lieutenant governor and there was no communication after that
about whether he did or did not have an outstanding bill. He
spoke with the ethics spokesman today and emailed the
administration office at fish and game asking if he owed on that
trip. He is waiting for a reply.
SENATOR MICCICHE asked if the image on Facebook has been
removed.
MR. FLEENER clarified that he can't remove it because it's not
his posting, but it's no longer on his Facebook page.
1:29:27 PM
CHAIR MCGUIRE thanked Mr. Fleener for answering the questions.
Finding no further questions or testimony, she issued the
reminder that forwarding the name does not reflect any intent by
the members to vote for or against the confirmation during any
further sessions.
SB 49-CIVIL LEGAL SERVICES FUND
1:31:28 PM
CHAIR MCGUIRE announced the consideration of SB 49. "An Act
allowing appropriations to the civil legal services fund from
court filing fees." She asked Ms. Wojtusik to discuss the
outstanding questions from the previous hearing on the
legislation.
1:32:18 PM
GENEVIEVE WOJTUSIK, Staff, Senator McGuire, advised that the
packets contain a zero fiscal note from the Alaska Court System
and a letter from Nikole Nelson that clarifies the types of
cases that the Alaska Legal Services Corporation (ALSC) is
specifically prohibited by federal law from engaging in. Those
include: criminal cases; abortion related litigation;
representation of undocumented immigrants (except where human
trafficking is involved); class actions; representation of
prisoners; representation of those evicted from public housing
due to illegal drug use; redistricting activities; and cases
where a private attorney would take the case on a contingency
fee basis.
SENATOR COGHILL thanked the sponsor for the additional
information and acknowledged that the testimony and further
research convinced him of the nobility of the exercise.
1:33:44 PM
CHAIR MCGUIRE closed public testimony and asked the will of the
committee.
1:33:58 PM
SENATOR MICCICHE motioned to report SB 49 from committee with
individual recommendations and attached fiscal note(s).
CHAIR MCGUIRE announced that without objection, SB 49 is
reported from the Senate Judiciary Standing Committee.
SB 5-RESTITUTION: PROPERTY AND INCOME LOSS
1:34:35 PM
CHAIR MCGUIRE announced the consideration of SB 5. "An Act
relating to loss of income and valuing property for orders of
restitution."
1:35:15 PM
SENATOR PETER MICCICHE, Sponsor of SB 5, explained that the
legislation is about rising property theft crime and restoring
crime victims to a pre-offense condition. The bill clarifies for
the courts that the public policy favors requiring criminals to
compensate their victims for their loss, including loss of
income. He related a story from his district. During the busiest
time of year someone attacked the truck of a small family-owned
business to get the copper wire. Although the value of the crime
was relatively low, the family was out of business for weeks and
lost many jobs. He noted that the bill also addresses the
appellate court decision in Welsh vs. State of Alaska that
overruled a lower court decision awarding market value of
restitution to a victim of property theft, because it
represented unjust enrichment of the crime victim. He said he
believes that perpetrators have basic rights but he has a
tendency to put the rights of the victim above the rights of the
perpetrator.
1:38:03 PM
CHUCK KOPP, Staff, Senator Peter Micciche, stated that SB 5
essentially does four things: 1) it amends Alaska's restitution
statutes and directs the courts to take into account the public
policy consideration that favors requiring offenders to
compensate victims for damages and injury, including the loss of
income; 2) it provides a definition from the criminal statutes
for loss of income as the total loss of income a business or
person suffers up to the time that a replacement is obtained; 3)
it gives direction to the courts in making determinations of
loss or damage for restitution to value the property as the
market value of the property; and 4) it amends AS 12.55.100 to
reconcile the standard of probation with the standard of
sentencing in AS 12.55.045.
1:41:42 PM
SENATOR WIELECHOWSKI asked if this affects the amount of
payments that would have to be made by the Violent Crimes
Compensation Board.
MR. KOPP replied he didn't believe so because the board's
statutory direction to make people whole is entirely different
than the restitution statutes. The guidelines are different for
establishing awards.
SENATOR COGHILL asked if the bill takes into consideration
situations like a frozen building that results from vandalism
and it's down for a month and a half.
MR. KOPP confirmed that the restitution statute AS 12.55.100
does look at the value of goods and services.
SENATOR WIELECHOWSKI posed a hypothetical of kids lighting a
fire and destroying a fishing boat. He asked if the owner would
be compensated for the loss of income and the replacement of the
boat.
MR. KOPP replied the current law covers actual damage or injury
which would cover the loss of the boat. The bill asks the court
to take the loss of fishing income into account as well.
SENATOR WIELECHOWSKI asked to whom and how much the perpetrator
would pay back if much of the loss was covered by the
fisherman's insurance.
MR. KOPP said he is a fisherman and his policy would cover the
loss of the boat, but not the loss of income.
1:45:26 PM
CHAIR MCGUIRE offered her belief that income would be covered
for a business that carried professional insurance.
SENATOR MICCICHE reminded the committee that the goal of the
bill is to make the person whole and make the perpetrator
responsible for his/her actions. The goal is the same whether or
not the insurance pays first and the perpetrator is on a payment
plan afterward.
1:46:06 PM
QUINLAN STEINER, Director, Public Defender Agency, offered to
answer questions.
SENATOR WIELECHOWSKI asked what the courts are doing now
regarding restitution and how it might change with this law.
MR. STEINER explained that when restitution is ordered it
typically becomes part of the judgement for the criminal case.
If the person doesn't pay or doesn't attempt to pay it could
impact their supervision if the crime is a felony. When the
restitution order is large repayment becomes difficult to
impossible, and if the person doesn't pay after probation lapses
it's something that businesses or individuals could pursue
civilly.
SENATOR WIELECHOWSKI asked how judges look at this when people
can't make payments.
MR. STEINER said if somebody has no work and no money they're
unlikely to be imprisoned for that alone, but it can happen if
they're not making payments. Also, it could impact somebody's
ability to get a suspended imposition of sentence (SIS) if
they're ordered to pay restitution and they're unable to do
that.
SENATOR WIELECHOWSKI asked his perspective on whether or not
this legislation will result in a lot of people being returned
to jail.
MR. STEINER opined that the bill doesn't materially alter the
present structure with the exception of the discussion of the
difference between the retail value and the market value of the
property. Typically, stolen items are dealt with at the market
value, but under the bill the loss of income arguably could be
used to make up the difference. The downside, he said, is the
potential for more litigation. He added that he believes there
is a misconception about the basis for the Welsh case, because
it didn't stand for the proposition that stolen property is
valued at wholesale.
1:51:47 PM
SENATOR WIELECHOWSKI asked if these cases would require
additional court resources.
MR. STEINER said it depends on the complexity of the case, what
is damaged and the litigation associated with the loss of
income.
SENATOR WIELECHOWSKI asked if loss of income expands to the crew
on a fishing boat that was destroyed.
MR. STEINER replied that is a possibility. The crew could argue
they're victims of the crime if they're unable to participate in
an opening and could potentially receive a restitution order.
SENATOR COGHILL asked if a court might put off judgment until it
made a determination about the income loss or if the court
already deals with that sort of timeframe issue.
MR. STEINER asked for clarification of the question.
SENATOR COGHILL replied he's referring to the cost of
replacement within a reasonable time in the new subsection (o)
in Section 3 and the total loss of income referenced in
paragraph (2) of Section 2.
SENATOR MICCICHE reiterated that the bill asks the courts to
consider loss of income, realizing that the decision will not be
the same in every case. As sponsor, he feels that perpetrators
should be responsible for the item as well as the damage
inflicted on the victim. The bill allows that to be considered
in court.
SENATOR COGHILL restated his question.
SENATOR MICCICHE responded that the bill isn't designed to
create indentured servitude. The idea is that the perpetrator
should be responsible for restitution to the extent possible and
in a reasonable period of time.
CHAIR MCGUIRE observed that the plain language of the bill
allows for judicial discretion.
1:58:54 PM
MR. KOPP told Senator Coghill that the language regarding cost
of replacement in a reasonable period of time was lifted from
the determinations of value in criminal law in AS 11.46.980.
SENATOR WIELECHOWSKI asked what sort of discretion the court
will have when page 1, lines 14-15, page 2, line 16, and page 2,
line 28, all talk about what the court shall do.
MR. STEINER explained that the courts don't deviate from using
market value when assessing theft and damaged items, although
there is discussion about how to determine it for items that are
not sold on a readily available market. He reiterated that the
Welsh case was somewhat confused in the idea that they were
assessing the marked up retail value, which didn't necessarily
relate to its market value. That was discussed in another case
recently when the appellate court reversed a case that valued
the property at more than $500 retail value which made it a
felony. The appellate court held that market value prevailed and
that the value was under $500.
SENATOR WIELECHOWSKI asked if the bill potentially will advance
property crime cases from misdemeanors to felonies.
MR. STEINER said he didn't believe so because the bill deals
with restitution which is different than assessing value in
terms of property damage.
2:02:46 PM
CHRIS NETTLES, representing National Federation Independent
Businesses (NFIB) and President, Geo Tek Alaska, Inc., testified
in support of SB 5. He related a personal experience when a snow
machine was stolen from a job site at the end of the job. If it
had occurred at the beginning of the job, his company would have
suffered the consequences of being down until the machine could
be replaced. He stressed the importance of the courts being able
to consider the total loss a victim suffers in a theft.
2:05:06 PM
CHAIR MCGUIRE announced she would hold SB 5 in committee for
further consideration.
SB 41-PSYCHOLOGIST & ASSOC CRIM HISTORY CHECKS
2:05:50 PM
CHAIR MCGUIRE announced the consideration of SB 41. "An Act
relating to criminal history record checks for psychologists and
psychological associates; and providing for an effective date."
2:05:53 PM
SENATOR CATHY GIESSEL, Sponsor SB 41, stated that this
legislation is about public safety. The Board of Psychologist
and Psychological Associate Examiners ("Board") that regulates
this profession does not have the statutory authority to conduct
criminal background checks as a condition of licensure. This is
important because this group of professions provides mental
health care services to a vulnerable population. The bill also
allows the Board discretion to require a background check on
renewals; that will be defined in regulation.
2:08:58 PM
SENATOR MICCICHE asked why this wasn't allowed in statute in the
past.
SENATOR GIESSEL replied this has been discussed for a number of
years, but it was never brought before the legislature.
2:09:33 PM
ALAN LEVY, L.P.A., Chair, Board of Psychologist and
Psychological Associate Examiners ("Board"), addressed the
question about why the Board doesn't already have this
authority. He explained that psychology as a profession was
originally licensed in 1963 and background checks were typically
reserved for certain military and high government positions.
This created a status quo even though times changed and greater
scrutiny over the people who are providing services to
vulnerable populations is now standard best practice.
He explained that for the past eight years the Board has been
trying to get the authority to do background checks, but the
Department of Law (DOL) opined that it doesn't have the
authority to enact regulations to give itself this power. SB 41
would amend the statutes and grant the authority.
2:12:11 PM
CHAIR MCGUIRE asked if there have been incidents that gave rise
to the idea.
MR. LEVY replied not to his knowledge, but there have been
problems in some of the other 16 states that do not require
background checks for psychologists or psychological
practitioners. Unethical practitioners moved from jurisdiction
to jurisdiction and did significant harm due to the absence of
scrutiny. He opined that Alaska has been fortunate to have a
competent and healthy population of psychologists and
psychological associates, but it would be irresponsible to say
that nothing will ever happen.
CHAIR MCGUIRE noted the letter from Robert Lane, PhD., asking
the committee to explore the idea of barrier crimes. She asked
the board's intention in that regard.
MR. LEVY replied, assuming the bill passes, the intention is to
craft appropriate regulations and policies based on the best
science available. He is aware of reliable research that points
to risk factors in various crimes at various ages, but those
questions are for the regulatory phase. SB 41 applies to the
statutory phase.
2:15:56 PM
SENATOR WIELECHOWSKI related a story about a constituent who
didn't want to submit a fingerprint to take a CPA exam due to
privacy concerns. He asked how the fingerprint information would
be protected to ensure it remains secure.
MR. LEVY said his personal inclinations are in line with what
the Alaska Constitution values, but he has to balance that with
the duty to protect the public. He explained that as a practical
matter, criminal background information is covered under state
policy and federal law. It can only be used for the purpose for
which it was obtained, it cannot be shared or obtained through a
public information search. He suggested the Department of
Commerce, Community and Economic Development (DCCED) could
discuss exactly how the information is secured.
SENATOR WIELECHOWSKI asked if there are look-back limitations.
MR. LEVY said the general intent is to create this as a
gatekeeper for future applicants, not for current licensed
professionals. However, the Board wants the regulatory authority
to investigate current licensed professionals if there is
reasonable cause to do so. The Board also intends to require
background checks for licenses that have lapsed for a period of
time.
CHAIR MCGUIRE asked if there is a national registry for this
profession similar to CODIS that provides information sharing.
MR. LEVY advised that a project has been underway for several
years to create a centralized credentialing bank on a national
and limited international basis. Complaints would be stored and
it would create licensure portability.
2:22:55 PM
CHAIR MCGUIRE asked if the cost of licensing would increase.
MR. LEVY explained that the applicant pays the cost of the
background check which is set at about $50 by the Department of
Public Safety (DPS). He added that all licensed boards are self-
supporting and this Board is dropping its licensing fees as a
result of carrying a significant surplus for many years.
SENATOR WIELECHOWSKI asked if he disagrees that the language in
the bill states that a future Board could require a background
check on every renewal. He also asked how often these licenses
are renewed.
MR. LEVY explained that licenses are renewed every two years.
The question about requiring background checks on renewal is a
regulatory issue and he doesn't believe the statutory language
should tie the hands of a future Board.
2:26:47 PM
ROBERT LANE Ph.D., Federal Advocacy Coordinator, Alaska
Psychological Association (AK-PA), noted that he submitted
written comments. He stated that AK-PA plans to be a part of the
process of drafting regulations. He highlighted that during the
Labor and Commerce Committee hearing he heard Mr. Levy say the
bill is a revenue producer. That caused worry that a background
check may be part of relicensing despite the fact that there
hasn't been a problem. He reported that the association isn't
opposed to the bill, but wants assurance that fees aren't added
that prevent people from entering the profession.
2:29:29 PM
PAMELA VAN HOUTEN, representing herself, Petersburg, Alaska,
testified in support of SB 41. She described the bill as an
important public safety tool. People who seek the services of
these professionals tend to be in a vulnerable situation, and
this client/professional relationship is particularly ripe for
abuse. It's therefore of utmost importance to bring forward any
past violations that would not be appropriate to this type of
professional relationship, she stated.
MR. LEVY clarified that he does not view the bill as a revenue
enhancer. The idea of it being revenue positive is that it
essentially saves money to prevent somebody from preying on the
public and causing harm.
SENATOR WIELECHOWSKI reviewed the fiscal note from DCCED that
anticipates this will cost more than $20,000 per year and states
that psychologists will have to submit their fingerprints every
two years.
MR. LEVY explained that if a future board decides to do biannual
background checks, DCCED has to have calculated that
possibility.
2:34:33 PM
SARAH CHAMBERS, Operations Manager, Division of Corporations,
Business and Professional Licensing, Department of Commerce,
Community and Economic Development (DCCED), confirmed that the
intent behind the fiscal note is to ensure that the expenditure
authority is available if a future Board decides to do biannual
background checks. If the authority isn't needed, it can be
reduced in the management plan.
2:35:54 PM
CHAIR MCGUIRE announced she would hold SB 41 in committee for
further consideration.
2:36:12 PM
There being no further business to come before the committee,
Chair McGuire adjourned the Senate Judiciary Standing Committee
meeting at 2:36 p.m. cryptic