Legislature(1993 - 1994)
03/12/1993 09:05 AM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SENATE STATE AFFAIRS COMMITTEE
March 12, 1993
9:05 a.m.
MEMBERS PRESENT
Senator Loren Leman, Chairman
Senator Mike Miller, Vice Chairman
Senator Johnny Ellis
Senator Jim Duncan
MEMBERS ABSENT
Senator Robin Taylor
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 11
"An Act relating to the crime of terroristic threatening."
SENATE BILL NO. 1
"An Act relating to retirement incentive programs for the
public employees' retirement system, the teachers'
retirement system, and certain persons under the judicial
retirement system; and providing for an effective date."
PREVIOUS SENATE COMMITTEE ACTION
SB 11 - See State Affairs minutes dated 2/24/93/
SB 1 - See State Affairs minutes dated 2/3/93 and 2/26/93.
WITNESS REGISTER
Margo Knuth
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Commented on CS SSSB 11.
Jerry Luckhaupt
Legislative Legal Counsel
130 Seward Street
Juneau, Alaska 99801-2105
POSITION STATEMENT: Commented on CS SSSB 11.
Bill Kelder, Staff
Senator Kerttula
Capitol Bldg.
Juneau, Alaska 99811-1802
POSITION STATEMENT: Commented on CS SSSB 11.
Brian Davidson
P.O. Box 1765
Bethel, Alaska 99559
POSITION STATEMENT: Supported CS SSSB 11.
Mike McQuary
2301 Peger Road
Fairbanks, Alaska 99775
POSITION STATEMENT: Supported CS SSSB 11.
Wendy Redman, Vice President
University Relations
University of Alaska Fairbanks
910 Yukon Dr.
Fairbanks, Alaska 99775
POSITION STATEMENT: Supported CS SSSB 11.
Robert Collins
P.O. Box 505
Kotzebue, Alaska 99752
POSITION STATEMENT: Supported CS SSSB 11.
Barry Haight
991 Vail View Dr.
Fairbanks, Alaska 99712
POSITION STATEMENT: Supported SB 1.
Kathy Weltzin
P.O. Box 210665
Auke Bay, Alaska 99821
POSITION STATEMENT: Supported SB 1.
Dennis Gellhouse
3044 Woodduck Ave.
Juneau, Alaska 99801
POSITION STATEMENT: Supported SB 1.
Faye Bain
ASEA
9000 Firndale
Juneau, Alaska 99801
POSITION STATEMENT: Supported SB 1.
Jim Bolejano, Union Representative
Cook Inlet Pretrial
Department of Corrections
P.O. Box 103155
Anchorage, Alaska 99510
POSITION STATEMENT: Supported SB 1.
Shane Ruattila
ASEA, Local 52
3431 Wiley Post Lp.
Anchorage, Alaska 99517
POSITION STATEMENT: Supported SB 1.
Gary Sampson
ASEA
P.O. Box 1348
Seward, Alaska 99801
POSITION STATEMENT: Supported SB 1.
Roxanne Stewart, Staff
Senator Duncan
Capitol Bldg.
Juneau, Alaska 99801
POSITION STATEMENT: Supported SB 1.
ACTION NARRATIVE
TAPE 93-19, SIDE A
Number 001
CHAIRMAN LEMAN called the Senate State Affairs Committee
meeting to order at 9:05 a.m. and announced SB 11
ANTI-STALKING LAW to be up for consideration.
SENATOR MILLER moved to adopt the CS to SSSB 11. There were
no objections and it was so ordered.
MARGO KNUTH, Department of Law, said the CS targets the same
conduct as SSSB 11 targeted. It does it in the framework of
the elements in existing assault statutes. It creates a
misdemeanor offense of stalking in the second degree which
is knowingly engaging in a course of conduct recklessly
placing another in fear of death or physical injury. There
are several ways stalking can be aggravated into a felony
offense. The most significant is acts that are in violation
of probation, release, or a temporary restraining order.
The terms are defined specifically in this bill with Alaskan
statutes in mind.
The only way the CS for SSSB 11 differs significantly from
HB 64, MS. KNUTH explained, is it explicitly creates an
affirmative defense for constitutionally protected conduct.
The purpose of the affirmative defense is to assure this law
is not used to try to chill peoples exercise of their
constitutional rights, like a public demonstration in front
of an abortion clinic, for instance.
Number 100
An issue raised by the affirmative defense is who should
decide whether the person's conduct was constitutionally
protected or not and juries are not trained to make that
determination, MS. KNUTH said. She would prefer to see it
as a question of law for the court to decide since that is
their area of expertise. She suggested adding the language,
"Whether an act of the defendant is a constitutionally
protected activity is a question of law to be determined by
the court before trial."
Number 148
JERRY LUCKHAUPT, who drafted the bill, explained that a
provision excluding constitutionally protected conduct does
arise in most stalking laws. The terroristic threatening
law, because that was a basic form of assault type of
offense, was moved into assault. The CS also removed an
existing relationship requirement between the victim and
defendant for arrest without a warrant for the basic
stalking offense, MR. LUCKHAUPT said. It also specified in
Section 6 that the court may put restrictions on a release
of the defendant.
Number 218
In Section 7 the court cannot suspend the imposition of
sentence of a person convicted of assault.
Number 251
SENATOR ELLIS asked for a rationale for the use of arrest
without a warrant in other instances. MR. LUCKHAUPT
explained that you can always arrest without a warrant for a
felony offense regardless of whether is was committed in
front of a police officer or not. Traditionally, a peace
officer cannot arrest without a warrant for a misdemeanor
offense that was not committed in his presence. There are
exceptions to that which usually involve some sort of danger
to the public, like drunk driving. Stalking is similar to
the fourth degree threatened assault type behavior.
Number 308
BILL KELDER, Staff for Senator Kerttula, agreed with most of
the changes in the CS because it made a better bill. He
added that he was confused about what they were going to do
with Ms. Knuth's suggested language, although he did agree
with it.
Number 324
SENATOR MILLER asked what happens if the jury decides the
activity is constitutionally protected. MS. KNUTH replied
that the most significant feature of what they are proposing
is that the jury is not going to be instructed on the
constitutional defense. If they are not instructed on it,
nothing would prompt them to make that consideration. Under
this bill, the judge would make that decision.
SENATOR MILLER said he had no problem with this if the judge
were neutral, but if he weren't neutral on the issue, he
would have trouble. MS. KNUTH said the judge would either
make the statement to the jury that it is constitutionally
protected or he is silent on it. The jury would not be told
there is a defense of constitutional activity.
SENATOR MILLER commented that it probably wouldn't be a
problem in this state where we have appointed judges.
Number 399
SENATOR LEMAN asked if the judge determined the activity was
constitutionally protected would it go to trial or would the
case be dismissed? MS. KNUTH said that would depend on the
circumstances.
Number 415
BRIAN DAVIDSON, Bethel, supported the CS to SSSB 11. He
said he works in a shelter for women who are victims of
domestic violence and assault. There is a common perception
among these women that the law is sometimes powerless to
help them. This legislation would go far to give law
enforcement additional powers to protect the members of the
community.
He wanted the committee to keep "stalker" as opposed to
"terroristic threatening." He supported arrest without a
warrant by a law enforcement officer and the provisions that
would aggravate stalking into a felony offense.
Number 437
SENATOR MILLER moved to pass CS SSSB 11 from committee. He
then withdrew his motion.
SENATOR DUNCAN moved to adopt the amendment suggested by the
Department of Law. SENATOR MILLER objected saying he was
still uncomfortable with it. SENATOR LEMAN objected as
well.
SENATOR DUNCAN withdrew his motion.
Number 452
SENATOR MILLER moved to discharge CS SSSB 11 from Committee
with individual recommendations. There were no objections
and it was so ordered.
SENATOR LEMAN announced SB 1 RETIREMENT INCENTIVE PROGRAM to
be up for consideration.
SENATOR LEMAN brought SB 11 back before the Committee to
receive testimony from Sergeant James McCann in Fairbanks.
However, he had left after the discharge vote and so SENATOR
LEMAN brought SB 1 back before the Committee.
MIKE MCQUARY, Department of Transportation equipment
operator in Fairbanks, supported SB 1, because there was a
high rate of injury on the job and a lot of people were
quitting because they simply couldn't do the work any more.
It's been proven to be cost effective. They are losing a
lot of people through workmen's compensation and they need
to have new people who are able to work.
Number 504
WENDY REDMAN, Vice President, University Relations, strongly
supported SB 1. She said the University was able to show
significant savings through use of early retirement
incentive programs. They anticipated additional savings
would happen with the new program. She pointed out that it
was at the option of the employer which she thought was very
important. It is a management tool for providing savings
and organizational flexibility that is not available to them
any other way.
At the University they have developed senior faculty in
departments where demand has decreased and they have no
resources in some departments where faculty is needed. The
only way to lay off a professor is to eliminate the entire
department, she explained.
Due to the slow economy there are decreases in hiring junior
faculty so there is kind of a buyer's market when it comes
to junior staffing. If they could use the RIP now, it would
put them in the extremely fortuitous position of being able
to replace the older faculty with a good cadre of junior
faculty that is available at this point.
Number 557
MS. REDMAN opposed proposed amendments 1 and 2 because it
would eliminate the University from the legislation.
Proposed amendment 3 was alright with them, because they do
not anticipate refilling more than 50% of the positions at
this point. She supported amendment 4 because it clarified
the bill.
Number 578
SENATOR LEMAN asked if she could research the time period to
show what the savings would be for a time period less than 5
years. MS. REDMAN said they could show savings from 3 years
to 5 years.
TAPE 93-19, SIDE B
Number 584
ROBERT COLLINS, Kotzebue, supported SB 1, because it would
save the state a lot of money and solve a lot of problems
with eliminating the work force without a lot of anguish.
He commented that the figures on people retiring at the age
of 35 are probably in reference to state troopers who can
retire in 20 years any way.
Number 549
BARRY HAIGHT, volunteer lobbyist for a Public Safety
employee group in the Fairbanks area, objected to amendment
1, because it includes teachers, but not municipalities,
political subdivision, the University of Alaska, or state
employees. He objected to amendment 2 because it also left
off the University and state employees. He thought
amendment 3 was an effort to accommodate state employees and
should be considered. Amendment 4 he strongly supported.
Number 516
CATHY WELTZIN, Auke Bay, brought up the human factor in the
teaching profession. A lot of times people are in jobs when
they are worn out and they are staying there for just one
reason. This might be a really nice way to "clean up" their
profession. This is a way to let them go with grace and to
bring on new educators who would be more flexible.
Number 498
DENNIS GELLHOUSE, President, ASEA, supported SB 1. A
legislative audit from November 1991 revealed the state
saved $23 million in the last program. This program is good
in a period of declining revenues. The bill is written so a
cost savings must be established before it is approved, so
this is not another state give away for state employees.
This is a way to save the state money and humanely mitigate
the impact of layoffs and unemployment.
MR. GELLHOUSE strongly objected to amendments 1 and 2. He
did not take a position on amendment 3 and had not seen
amendment 4.
Number 459
FAYE BAIN, ASEA, strongly supported SB 1. She opposed
amendments 1 and 2 which she described as an end run against
the state employees, which according to her, were being
treated as a "subhuman species."
SENATOR LEMAN commented that there was no intent to treat
state employees as subhuman, but the amendments were there
to work toward resolving issues so the bill could possibly
pass and become law.
Number 416
SHANE RUUTTILA, ASEA Local 52, said in his division people
who were mostly in their late 50's took advantage of the
program. Not only would it be cost effective, but it would
increase productivity and service. He strongly opposed
amendment 1, because it would exclude state employees. The
people who are staying on in the state are passing their
dollars on to the people in the business community for goods
and services.
Number 375
GARY SAMPSON, Corrections Representative on ASEA, said there
are approximately 1,000 employees in the Corrections
Department that would be impacted by this legislation. He
strongly supported the legislation saying his department is
looking at steep cuts to their budget and the loss of many
jobs. The people who will be impacted are the ones who are
just starting out and perhaps they would have to leave the
state to find employment elsewhere. This would be a great
loss of potential for the state of Alaska. Passing this
legislation would reduce the government payroll by not
hurting those who are just starting out, but helping those
persons who are prepared to retire.
Number 352
SENATOR DUNCAN moved to adopt amendment 4 which changes the
window periods for municipal employees.
ROXANNE STEWART, Aide for Senator Duncan, explained the
window period to the Committee which was included as a
specific response to the concerns of the fire department in
Fairbanks which could otherwise disappear on July 1.
There were no objections and it was so moved.
Regarding amendment 3, SENATOR DUNCAN said he believed to
have a comprehensive piece of legislation that has all
public employees in it. He would consider amendment 3 if it
would help move the legislation along. He was concerned
about how restrictive it would be on management to utilize
the program to its fullest.
Number 311
SENATOR MILLER offered amendment 3 for discussion purposes.
SENATOR ELLIS thought amendment 3 took responsibility away
from the Hickel appointees to do their jobs.
Number 295
SENATOR LEMAN noted an excerpt from an NCSL report that
said, "It is difficult to obtain real savings from
retirement incentive programs for state employees and that
control of replacements is the key to savings. Explicit
accounting for all costs including future costs to
retirement systems is essential." He agreed with this idea
and supported amendment 3 because it had tighter controls
which would improve the chances of this legislation
succeeding.
Number 251
JIM BULGIANO, ASEA employee, Department of Corrections, said
there needs to be some consideration for essential personnel
in replacing only 50% of the positions. In his department
that might jeopardize the safety and security of their
personnel.
SENATOR DUNCAN said he appreciated his concerns and thought
they should look at defining essential employees.
Number 228
SHANE RUUTTILA, Division of Corrections, opposed amendment
3. He said their case loads are some of the fastest growing
in the nation. They cannot afford to loose even one person.
He thought there were some divisions that just wouldn't be
able to operate under this amendment.
Number 204
There were no objections to amendment 3 and it was so
ordered.
SENATOR MILLER moved to adopt amendment 5. There were no
objections and it was so ordered.
Number 141
SENATOR DUNCAN moved to pass the State Affairs CS for SB 1
with individual recommendations. There were no objections
and it was so ordered.
SENATOR LEMAN adjourned the meeting at 10:30 a.m.
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