04/01/2008 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB198 | |
| HB92 | |
| HB196 | |
| HB351 | |
| SB227 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 227 | TELECONFERENCED | |
| + | SB 228 | TELECONFERENCED | |
| + | HB 196 | TELECONFERENCED | |
| + | SB 198 | TELECONFERENCED | |
| += | HB 92 | TELECONFERENCED | |
| + | HB 351 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
April 1, 2008
9:04 a.m.
MEMBERS PRESENT
Senator Lesil McGuire, Chair
Senator Gary Stevens, Vice Chair
Senator Hollis French
Senator Lyda Green
Senator Con Bunde
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 198
"An Act extending the statute of limitations for the filing of
complaints with the Alaska Public Offices Commission involving
state election campaigns; and extending the statute of
limitations for prosecutions of violations of the Alaska
Election Code."
MOVED SSSB 198 OUT OF COMMITTEE
HOUSE BILL NO. 92
"An Act removing the victims' advocate and the staff of the
office of victims' rights from the jurisdiction of the office of
the ombudsman in the legislative branch."
MOVED HB 92 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 196(JUD)
"An Act relating to the handling of matters after a person's
death."
MOVED SCS CSHB 196(STA) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 351(JUD)
"An Act relating to submission of fingerprints by applicants for
a concealed handgun permit; and providing for an effective
date."
MOVED CSHB 351(JUD) OUT OF COMMITTEE
SENATE BILL NO. 227
"An Act relating to certain investments of the Alaska permanent
fund, the state's retirement systems, the State of Alaska
Supplemental Annuity Plan, and the deferred compensation program
for state employees in companies that do business in Sudan, and
restricting those investments."
MOVED SB 227 OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 228
"An Act relating to and permitting certain uses and occupancies
of real property that do not comply with changes made to
municipal land use ordinances."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 198
SHORT TITLE: ELECTION VIOLATIONS: STAT OF LIMITATIONS
SPONSOR(S): SENATOR(S) WIELECHOWSKI, THOMAS
01/16/08 (S) PREFILE RELEASED 1/4/08
01/16/08 (S) READ THE FIRST TIME - REFERRALS
01/16/08 (S) STA, JUD, FIN
03/20/08 (S) STA AT 9:00 AM BELTZ 211
03/20/08 (S) Failed To Move Out Of Committee
03/20/08 (S) MINUTE(STA)
03/28/08 (S) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
03/28/08 (S) STA, FIN
04/01/08 (S) STA AT 9:00 AM BELTZ 211
BILL: HB 92
SHORT TITLE: JURISDICTION OF OMBUDSMAN: VICTIMS RTS
SPONSOR(S): REPRESENTATIVE(S) SAMUELS, STOLTZE
01/16/07 (H) PREFILE RELEASED 1/12/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) STA, FIN
03/20/07 (H) STA AT 8:00 AM CAPITOL 106
03/20/07 (H) Scheduled But Not Heard
03/24/07 (H) STA AT 10:00 AM CAPITOL 106
03/24/07 (H) Moved Out of Committee
03/24/07 (H) MINUTE(STA)
03/26/07 (H) STA RPT 5DP 1DNP
03/26/07 (H) DP: JOHNSON, JOHANSEN, GRUENBERG,
COGHILL, LYNN
03/26/07 (H) DNP: DOLL
04/03/07 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/03/07 (H) Moved Out of Committee
04/03/07 (H) MINUTE(FIN)
04/04/07 (H) FIN RPT 6DP 4NR
04/04/07 (H) DP: GARA, FOSTER, HAWKER, THOMAS,
STOLTZE, MEYER
04/04/07 (H) NR: CRAWFORD, NELSON, KELLY, CHENAULT
04/13/07 (H) TRANSMITTED TO (S)
04/13/07 (H) VERSION: HB 92
04/16/07 (S) READ THE FIRST TIME - REFERRALS
04/16/07 (S) STA
05/03/07 (S) STA AT 9:00 AM BELTZ 211
05/03/07 (S) -- MEETING CANCELED --
05/09/07 (S) STA AT 9:00 AM BELTZ 211
05/09/07 (S) Heard & Held
05/09/07 (S) MINUTE(STA)
04/01/08 (S) STA AT 9:00 AM BELTZ 211
BILL: HB 196
SHORT TITLE: HANDLING MATTERS AFTER A PERSON'S DEATH
SPONSOR(S): JUDICIARY
03/14/07 (H) READ THE FIRST TIME - REFERRALS
03/14/07 (H) JUD
04/04/07 (H) JUD AT 1:00 PM CAPITOL 120
04/04/07 (H) Heard & Held
04/04/07 (H) MINUTE(JUD)
04/10/07 (H) JUD AT 1:00 PM CAPITOL 120
04/10/07 (H) Moved CSHB 196(JUD) Out of Committee
04/10/07 (H) MINUTE(JUD)
04/11/07 (H) JUD RPT CS(JUD) 5DP 1NR
04/11/07 (H) DP: GRUENBERG, LYNN, COGHILL, HOLMES,
RAMRAS
04/11/07 (H) NR: SAMUELS
04/20/07 (H) TRANSMITTED TO (S)
04/20/07 (H) VERSION: CSHB 196(JUD)
04/23/07 (S) READ THE FIRST TIME - REFERRALS
04/23/07 (S) L&C, STA, JUD
02/21/08 (S) L&C AT 1:30 PM BELTZ 211
02/21/08 (S) Heard & Held
02/21/08 (S) MINUTE(L&C)
03/06/08 (S) L&C AT 1:30 PM BELTZ 211
03/06/08 (S) Moved SCS CSHB 196(L&C) Out of
Committee
03/06/08 (S) MINUTE(L&C)
03/10/08 (S) L&C RPT SCS 3DP SAME TITLE
03/10/08 (S) DP: ELLIS, BUNDE, DAVIS
04/01/08 (S) STA AT 9:00 AM BELTZ 211
BILL: HB 351
SHORT TITLE: CONCEALED HANDGUN PERMIT: FINGERPRINTS
SPONSOR(S): REPRESENTATIVE(S) COGHILL
02/06/08 (H) READ THE FIRST TIME - REFERRALS
02/06/08 (H) JUD, FIN
02/11/08 (H) JUD AT 1:00 PM CAPITOL 120
02/11/08 (H) Moved CSHB 351(JUD) Out of Committee
02/11/08 (H) MINUTE(JUD)
02/13/08 (H) JUD RPT CS(JUD) 7DP
02/13/08 (H) DP: DOOGAN, LYNN, COGHILL, DAHLSTROM,
SAMUELS, HOLMES, RAMRAS
02/20/08 (H) FIN AT 1:30 PM HOUSE FINANCE 519
02/20/08 (H) <Bill Hearing Postponed>
02/28/08 (H) FIN AT 1:30 PM HOUSE FINANCE 519
02/28/08 (H) Moved CSHB 351(JUD) Out of Committee
02/28/08 (H) MINUTE(FIN)
02/29/08 (H) FIN RPT CS(JUD) 10DP
02/29/08 (H) DP: HAWKER, CRAWFORD, JOULE, GARA,
NELSON, STOLTZE, THOMAS, KELLY, MEYER,
02/29/08 (H) CHENAULT
03/12/08 (H) TRANSMITTED TO (S)
03/12/08 (H) VERSION: CSHB 351(JUD)
03/14/08 (S) READ THE FIRST TIME - REFERRALS
03/14/08 (S) STA
04/01/08 (S) STA AT 9:00 AM BELTZ 211
BILL: SB 227
SHORT TITLE: DIVEST INVESTMENTS IN SUDAN
SPONSOR(S): SENATOR(S) FRENCH
01/16/08 (S) READ THE FIRST TIME - REFERRALS
01/16/08 (S) STA, FIN
04/01/08 (S) STA AT 9:00 AM BELTZ 211
WITNESS REGISTER
MICHELE SYDEMAN, Staff
to Senator Bill Wielechowski
Alaska State Legislature
POSITION STATEMENT: Presented SB 198
JOYCE ANDERSON, Administrator
Select Committee on Legislative Ethics
Anchorage AK
POSITION STATEMENT: Answered questions about SB 198.
SENATOR BILL WIELECHOWSKI
Alaska State Legislature
POSITION STATEMENT: Presented SB 198
REPRESENTATIVE BILL STOLTZE
Alaska State Legislature
Juneau AK
POSITION STATEMENT: Presented HB 92.
REPRESENTATIVE RALPH SAMUELS
Alaska State Legislature
Juneau AK
POSITION STATEMENT: Presented HB 92.
KATHERINE HANSEN, Interim Director
Office of Victims Rights
Anchorage AK
POSITION STATEMENT: Answered questions about HB 92.
LINDA LORD-JENKINS, Ombudsman
Alaska Office of the Ombudsman
Anchorage AK
POSITION STATEMENT: Answered questions about HB 92.
REPRESENTATIVE JAY RAMRAS
Alaska State Legislature
Juneau AK
POSITION STATEMENT: Presented HB 196.
JANE PIERSON, Staff
to Representative Ramras
Alaska State Legislature
POSITION STATEMENT: Presented HB 196.
STEVE GREER, Attorney
Anchorage AK
POSITION STATEMENT: Spoke in favor of HB 196.
KAREN LIDSTER, Staff
to Representative John Coghill
Alaska State Legislature
POSITION STATEMENT: Presented HB 351.
DIXIE HOOD, Family Therapist
Juneau AK
POSITION STATEMENT: Spoke in favor of SB 227.
HELENA FAGAN
Juneau AK
POSITION STATEMENT: Spoke in favor of SB 227.
MICHAEL BURNS, CEO
Alaska Permanent Fund Corporation
Juneau AK
POSITION STATEMENT: Spoke against SB 227.
PAT GALVIN, Commissioner
Alaska Department of Revenue
Juneau AK
POSITION STATEMENT: Spoke in favor of SB 227.
DEBORAH BOCK, Volunteer
Save Darfur Anchorage
Anchorage AK
POSITION STATEMENT: Spoke in favor of SB 227.
MAX CROES
Sudan Divestment Task Force/Genocide Intervention Network
Washington D.C.
POSITION STATEMENT: Spoke in favor of SB 227.
ACTION NARRATIVE
CHAIR LESIL MCGUIRE called the Senate State Affairs Standing
Committee meeting to order at 9:04:14 AM. Senators McGuire,
Bunde, Stevens, and French were present at the call to order.
Senator Green arrived later.
SB 198-ELECTION VIOLATIONS: STAT OF LIMITATIONS
CHAIR MCGUIRE announced the consideration of SB 198.
9:04:47 AM
MICHELE SYDEMAN, Staff to Senator Bill Wielechowski, said the
sponsor substitute to SB 198 retains the core provisions of the
original bill, which extends the statute of limitations for the
Alaska Public Offices Commission (APOC) from one year to four.
It also repeals a statute governing the Department of Law
prosecutions of campaign finance violations. It will have up to
five years to carry a criminal prosecution. The following
sections of the original bill were deleted based on previous
committee discussions: Section 1, which restricted post-election
fundraising; Section 3, which limited excess campaign funds that
can be given to a political party; and Section 5, which would
have increased the civil penalty for lobbyists. Those sections
were removed to focus on the core mission.
9:06:40 AM
SENATOR BUNDE asked about the five-year limit, because line 9
says four years.
MS. SYDEMAN said Section 1 changes the APOC statute of
limitations to four years, and Section 2 repeals AS15.56.130,
which refers to criminal prosecutions of campaign finance laws.
There have only been a handful of those in several decades. If
the one-year statute is repealed, there is a five-year, more
general, statute of limitations for this type of criminal
violation that already exists in law.
9:07:44 AM
CHAIR MCGUIRE said there was an amendment from the legislative
ethics committee making the bill consistent with the bill
supported by APOC. "It was [Ms. Joyce Anderson's] belief that we
should make both the ethics statute of limitations and the APOC
statute of limitations consistent."
CHAIR MCGUIRE moved Amendment 1, labeled 25-LS1102\L, Bullard,
as follows:
Page 1, line 1:
Delete "extending"
Insert "relating to"
Page 1, line 2, following "campaigns;":
Insert "relating to the statute of limitations for the
filing of complaints with the Select Committee on Legislative
Ethics;"
Page 1, lines 5 - 12:
Delete all material and insert:
"* Section 1. AS 15.13.380(b) is amended to read:
(b) A [MEMBER OF THE COMMISSION, THE COMMISSION'S
EXECUTIVE DIRECTOR, OR A] person who believes a violation of
this chapter or a regulation adopted under this chapter has
occurred or is occurring may file an administrative complaint
with the commission within five years [ONE YEAR] after the
date of the alleged violation. If a member of the commission
has filed the complaint, that member may not participate as a
commissioner in any proceeding of the commission with respect
to the complaint. The commission may consider a complaint on
an expedited basis or a regular basis. The time limitations of
this subsection do not bar proceedings against a person who
intentionally prevents discovery of a violation of this
chapter.
* Sec. 2. AS 24.60.170(a) is amended to read:
(a) The committee shall consider a complaint alleging a
violation of this chapter if the alleged violation occurred
within five [TWO] years before the date that the complaint is
filed with the committee [AND, WHEN THE SUBJECT OF THE
COMPLAINT IS A FORMER MEMBER OF THE LEGISLATURE, THE COMPLAINT
IS FILED WITHIN ONE YEAR AFTER THE SUBJECT'S DEPARTURE FROM
THE LEGISLATURE]. The committee may not consider a complaint
filed against all members of the legislature, against all
members of one house of the legislature, or against a person
employed by the legislative branch of government after the
person has terminated legislative service. However, the
committee may reinstitute proceedings concerning a complaint
that was closed because a former employee terminated
legislative service [OR BECAUSE A LEGISLATOR LEFT THE
LEGISLATURE] if the former employee [OR LEGISLATOR] resumes
legislative service, whether as an employee or a legislator,
within five [TWO] years after the alleged violation. The time
limitations of this subsection do not bar proceedings against
a person who intentionally prevents discovery of a violation
of this chapter."
Renumber the following bill sections accordingly.
Page 2, following line 6:
Insert a new subsection to read:
"(b) AS 24.60.170(a), as amended by sec. 2 of this Act,
applies to complaints alleging violations of AS 24.60 that
occurred
(1) within two years before the effective date of
sec. 2 of this Act; or
(2) on or after the effective date of sec. 2 this
Act."
Reletter the following subsection accordingly.
Page 2, line 8:
Delete "sec. 2"
Insert "sec. 3"
There being no objection, Amendment 1 was adopted.
SENATOR FRENCH said Amendment 1 deletes lines 5 through 12, and
that is related to APOC. So it restates the APOC provisions and
then it adds the ethics provisions; is that how it works?
9:09:18 AM
JOYCE ANDERSON, Administrator, Select Committee on Legislative
Ethics, said Amendment 1 adds the language that the time limits
do not bar proceedings against a person who intentionally
prevents discovery of a violation. "That has been added for APOC
language, and it's also in the ethics statute." It is making it
consistent, not only with the statute of limitations for four
years, but also with the language in both the ethics and the
APOC statutes.
SENATOR FRENCH said Amendment 1 adds to the APOC bill and ethics
provision, which makes the two consistent.
MS. ANDERSON said that is correct.
SENATOR GREEN asked, "Does it mean that there's not a limitation
of four years?"
MS. ANDERSON said yes, if there was an intentional prevention of
discovery. Recent cases included an intentional prevention of
discovery of a violation, which could go beyond the four years.
SENATOR STEVENS asked her to explain it.
MS. ANDERSON said if there was a corruption case where the
offender intentionally prevented discovery of some act, there
would be no statute of limitations. Then both APOC and the
ethics committee could initiate a complaint. For example, APOC
now has a one-year statute of limitations, and was unable to
initiate any kind of investigation regarding [Governor
Murkowski's Chief of Staff] Jim Clark. This would have allowed
the committee to look at that issue.
9:12:15 AM
SENATOR BUNDE asked if intentionally preventing discovery is
like tampering with evidence in a criminal case.
MS. ANDERSON said it would have to be violation under the code
of APOC or ethics, "so it would actually have to be one of the
areas of the conflict of interest, or whatever, in the ethics
code, and as well as the APOC statutes, which cover campaigning
law and financial disclosures."
SENATOR BUNDE asked if the current one-year statute of
limitations gets waived for intentional prevention of discovery.
MS. ANDERSON said no.
SENATOR BUNDE said there are honest mistakes. This is about
falsifying or destroying evidence.
MS. ANDERSON said that could be an example, but it would be at
the discretion of APOC and the ethics committee to look at how
egregious it was.
SENATOR BUNDE asked if the decision of whether there was
intentional prevention of discovery would be made by the ethics
committee.
MS. ANDERSON said yes.
SENATOR BUNDE said he has no question about the present ethics
committee, but he might with later committees. Why are you
asking for this?
MS. ANDERSON said it has been in the ethics statute for years,
and she wants to make things consistent between ethics and APOC.
It was added to the APOC statute in some House committees.
9:15:17 AM
SENATOR BUNDE surmised that it exists in the ethics law, and now
it will be in the APOC arena. Who makes the determination if
there was intentional prevention of discovery?
MS. ANDERSON said APOC will.
SENATOR BUNDE said, "They become judge, jury, and executioner."
CHAIR MCGUIRE said there was no objection to the amendment, but
the committee can continue the debate.
SENATOR GREEN moved to rescind the action on adopting Amendment
1 for the purposes of allowing further debate.
SENATOR FRENCH objected and said the debate can occur on the
bill itself or in the context of the rescinding motion. It did
happen quickly. He withdrew his objection.
Amendment 1 was rescinded.
CHAIR MCGUIRE moved Amendment 1 again.
SENATOR GREEN objected. If she had known it was in the ethics
provision she would have complained. It appears there is no time
limit. How can the state have the right to go back and look at
something after four years?
9:17:47 AM
MS. ANDERSON said because it is in statute.
SENATOR GREEN said it isn't in statute. "If you have a four-year
time limit, how do you … have the ability to go back and look
and determine if something is wrong? To me it is off the table."
SENATOR FRENCH said it is already in the ethics statute but not
APOC. If APOC got a tape from a 1980 election showing a
candidate shredding checks and changing names and amounts after
a campaign event, APOC would say it is beyond the four years and
the offenders would get away with it, but they wouldn't if this
were on the books. If it was just someone making a mistake when
filling out a form, the case is closed after four years. An
honest candidate won't be harassed.
9:20:28 AM
SENATOR BUNDE said APOC has been helpful to him and he has
confidence in the office, but "you do get a group of five people
discussing the possibility of an ethics violation and
intentionally preventing discovery of a violation, and the
ethics area seems … more of a gray area that would require this
group discussion. But now we are going to … some future APOC.
And, who makes that decision, one person?" Could the director of
APOC say something was intentional with no statute of
limitations? Criminal law has very few offenses without one. He
said he is not much of a record keeper. A person that is long-
retired will need to keep all APOC records. The ethics committee
has five members, but APOC is one person. He understands the
goal, but the two organizations are vastly different.
9:23:03 AM
SENATOR GREEN said Section 1 is vastly different than the
sponsor substitute. There has not been enough discussion on
this. There are implications she is not comfortable with.
CHAIR MCGUIRE withdrew Amendment 1. She will give Ms. Anderson
time to discuss this idea with other members. It goes to the
Senate Judiciary Committee next.
SENATOR FRENCH moved to report SB 198 from committee with
individual recommendations and attached fiscal note(s).
SENATOR STEVENS objected to hear what the bill does.
CHAIR MCGUIRE said it is Version L, and it is the basic four-
year statute of limitations on APOC complaints.
9:25:47 AM
SENATOR BILL WIELECHOWSKI said the bill goes to the finance
committee, not judiciary. It extends the statute of limitations
for APOC from one year to four years, and the criminal statute
of limitations goes to five years. That is all it does.
SENATOR STEVENS said this bill is very similar to Senator
Therriault's bill that already passed out of committee.
SENATOR WIELECHOWSKI said it also extends the criminal statute
of limitations.
9:26:55 AM
SENATOR GREEN asked where it says five years.
SENATOR WIELECHOWSKI said repealing Section 2 makes it five
years.
SENATOR BUNDE said it goes to the default of five years.
CHAIR MCGUIRE said, "We technically had the motion, and it
carried and we passed it out." SSSB 198 was moved out of
committee with individual recommendations and attached fiscal
note(s).
The committee took a brief at ease at 9:28:21 AM.
HB 92-JURISDICTION OF OMBUDSMAN: VICTIMS RTS
9:30:13 AM
CHAIR MCGUIRE announced the consideration of HB 92.
9:30:13 AM
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, said he
and Representative Samuels are cosponsors and have been involved
with the Office of Victims Rights (OVR) for many years.
Representative Samuels was a citizen advocate and Representative
Stoltze was on staff with the legislative when the legislation
was crafted. It was patterned after the ombudsman office - "as a
stand-beside organization." The director of OVR is selected by a
bipartisan process that requires a super majority vote. It is a
consensus position like the ombudsman. Last year there was a
jurisdictional skirmish between the two offices. The intent for
the OVR was to have jurisdiction granted by the legislature. HB
92 clarifies that intent to avoid litigation between one branch
of the legislature and another. There are many reasons why the
two are separate.
9:32:32 AM
REPRESENTATIVE RALPH SAMUELS, Alaska State Legislature,
concurred, and said the OVR was created as a specialized
ombudsman for the victims of crime only. A person can easily see
the inherent conflict if one office presided over the other.
About 40 percent of complaints to the ombudsman come from jail,
and all of the complaints to the OVR come from victims. Creating
it was a several-year process, including where to house it. A
victim may file against the district attorney, public defender,
public safety, or police. He fixed that as a freshman by
allowing OVR to look at law enforcement. A complaint from a
victim will go against one of the agencies, so the OVR shouldn't
be housed in the Department of Law "because you would be
complaining against your boss, possibly." "If you put it in the
Department of Administration, all roads lead to the
commissioner, including the public defender and OPA [Office of
Public Advocacy]." It ended up in the legislative branch as a
separate ombudsman for victims of crime. The OVR answers to the
legislature just like the ombudsmen. There could be a conflict
of the same ombudsman representing the rapist and his victim, so
he wanted a clear line. It is clearer to the public and the
victim to not even have the appearance of a conflict, and that
is the purpose of HB 92.
9:35:37 AM
REPRESENTATIVE STOLTZE said this was the implementing agency for
the constitutionally created Victims Rights Amendment. The
people of Alaska overwhelmingly endorsed that amendment to
Alaska's constitution. There were the inherent problems of the
District Attorney's (D.A.) office - they just have a hard time
regulating themselves because they are always working hard. This
agency was viewed as very important. The substantive difference
between the ombudsman and the OVR is the direct link to the
constitution.
9:36:56 AM
SENATOR GREEN said she cosponsored the OVR bill and never heard
it called an ombudsman's office. It raises the question of
institutional competency when the ombudsman lacks that special
legal knowledge necessary to investigate. She doesn't think
there are any limitations on what the ombudsman can do to get
assistance. She would prefer not to see "a sentence like that to
denigrate another sister agency." [OVR] was placed under the
legislature because no one wanted a new line item in their
budget. "If you want to address the issue of what can or what
should the ombudsman investigate, because I think the genesis of
this problem actually has to do with the representation of
prisoners." That is the way to address the problem. There is a
system of appeals, courts and internal ways to correct it. "I
don't know if the Office of Victims Rights ever reports to us,
except for their little report they do." Attempts are made each
year for the legislature to exert authority over the ombudsman
in the budget process, but she doesn't know if that is done with
OVR. She would like to hear from both.
9:39:10 AM
KATHERINE HANSEN, Interim Director, Office of Victims Rights,
Anchorage, said the OVR has two functions, and one is to act as
an ombudsman for victims, and the other is to advocate as a
lawyer for crime victims who ask and to provide free legal
advice on crime victim issues.
SENATOR GREEN asked if OVR actually goes to court.
MS. HANSEN said yes, and they file briefs and facilitate
communication with the prosecutors and the police.
SENATOR GREEN asked if the role is an observer.
MS. HANSEN said crime victims have statutory and constitutional
rights. Sometimes OVR will speak on behalf of the victim at bail
hearings and at sentencing. "We are not a party, but victims do
have a special role in the criminal process."
SENATOR GREEN asked if the court lists OVR as their attorney.
MS. HANSEN said yes.
9:41:25 AM
SENATOR BUNDE asked if a criminal can get a public defender and
the state pays for the lawyer, and the OVR balances that with a
state-appointed lawyer for a victim without substantial means.
MS. HANSEN said that is a good way to phrase it. The OVR gathers
documents and represent the crime victim. It has certified
attorneys with prosecution or substantial criminal law
experience. "If they're unhappy with the outcome, then they go
to the ombudsman and there is a risk of them getting documents
they shouldn't be getting." There also may be confusion of who
is making the final decision. When the OVR statutes were
drafted, the intent was for a specialized office for crime
victims that would have some teeth and would be the final say.
9:43:02 AM
MS. HANSEN said there are several things that the ombudsman
cannot access that OVR can, such as criminal investigation
records from cold cases. If a crime victim later asked the
ombudsman for a review, the OVR couldn't statutorily turn over
that information. There are things that the OVR gets that the
ombudsman doesn't. If the ombudsman were investigating OVR, it
would be contrary to statute to turn over information.
SENATOR GREEN asked if a person can sign over access to the
records.
MS. HANSEN said AS24.55 would have to be substantially revised
to allow the ombudsman to oversee the OVR. The easiest and best
thing to do for the crime victim is to have the specialized
knowledge of the OVR looking at the issues and making the final
decision on what action is needed to improve the system and the
circumstances for that crime victim. The reason this bill came
up is a case with an active criminal investigation that OVR
looked at to see if it was viable for prosecution. OVR has that
expertise and works with the DA's office on helping to explain
that determination to the crime victim. To have a non-lawyer
without experience in criminal investigation take it and oversee
it would be unhelpful.
9:45:27 AM
SENATOR FRENCH said he has been thinking about the institutional
competence argument. There may be a legitimate issue about
whether one agency should oversee another one, but that
particular argument is very unpersuasive to him. The DA's office
is ultimately the one that decides on whether to prosecute or
not, "and … if you're unhappy with that decision, go complain to
an ombudsman." Ombudsmen aren't experts in any single field.
They are good at looking at both sides and they tend to make
good judgments. They will almost always have to defer to the
institutional competence of the agency they are overseeing. The
idea that there is a decision too complex for someone else to
review is not something he embraces.
LINDA LORD-JENKINS, Ombudsman, Alaska Office of the Ombudsman,
Anchorage, said she appreciates Senator French's comments on
institutional competence. There are two attorneys on staff that
have been involved in criminal defense issues. The matter that
brought this to a head was characterized as whether or not a
sexual assault of a young woman was viable for prosecution. The
complainant said it had to do with how the police treated the
victim. She was fully aware that it wasn't a viable matter
because both the alleged victim and the alleged perpetrator were
mentally handicapped. Her office assured her that it wouldn't be
prosecutable, but she was more concerned about how the victim
was handled by the police. Her allegation was that OVR did not
go beyond talking to the police. She wanted them to look at how
handicapped victims are treated, which is important in today's
society. There is a movement to get better treatment for the
handicapped and disabled from police officers and the court
system. The ombudsman wanted to know from OVR who the
investigator talked to. All the accounts are that the victim was
re-victimized and kept up almost 24 hours being interrogated,
and she had very limited communication capabilities and she was
not allowed to have a family member with her. The interrogation
started at three a.m. The complainant alleged it was not
reasonable treatment of a handicapped victim. "We wanted to know
what the non-attorney investigator looked at and talked to. We
do understand that there are records that we don't have
statutory access to, but we also do not provide records that we
acquire from any agency to any complainant."
9:50:05 AM
MS. LORD-JENKINS said that is a longstanding policy. If they
want records from agencies her office directs them to file an
open record request, but it does not act as a conduit. "We mark
the records that we get from complainants and agencies, so that
simply does not happen." OVR was modeled after the ombudsman
statute. Her concern is that OVR statute does not allow OVR to
provide specific information about its investigations to the
legislature. The statute provides for confidentiality, and she
believes OVR does have access to that statute. If her office
doesn't have oversight over OVR, then who does?
SENATOR BUNDE asked about other cases where the ombudsman felt a
need to review the activities of OVR.
MS. LORD-JENKINS said there was one other case dealing with a
person who felt he was a crime victim. Her office referred him
to OVR and he said that OVR had not responded reasonably. He
alleged that he was turned over to the troopers by OVR. "He did
not provide sufficient information. There were a lot of issues
there, but we did ask the questions. We have not conducted any
formal investigations of OVR as defined in our statutes." Since
HB 92 was filed the ombudsman has been referring complainants to
the director and to the bill sponsors. "We said if you have a
problem with how OVR is responding, these two people are very
interested in OVR and they would be good people for you to also
talk to. But we route them through the process first."
9:53:00 AM
SENATOR BUNDE said he encouraged her to do that. The legislature
has an ombudsman role for their constituents. He asked about the
ombudsman having the perpetrator and the victim under its
jurisdiction and working at cross purposes.
MS. LORD-JENKINS said 25 percent of the ombudsman caseload is
inmates complaining about the Department of Corrections. Less
than 0.5 percent might be filed against a prosecuting attorney.
It is possible that the ombudsman would get a defendant and a
victim, but that has never happened. If there were a conflict,
she would assign one to one office and the other to another
office and put up a wall between them. When the ombudsman gets
complaints, the people have attorneys and there is a court
process, "and we route them to their attorneys." If there is a
complaint that the attorney is not adequately representing them,
the ombudsman has no jurisdiction over a private attorney and a
limited review of a public defender. The ombudsman has no access
to attorney/client records, but the client can waive that
privilege. The allegation would have to be incompetence and
abuse of discretion. "We do route people to the court process if
they believe that their attorney is not representing them
adequately. We tell them they have the option of filing an
ineffective assistance of council motion." But the ombudsman
doesn't go in and address whether or not in-court representation
is adequate. She has questions whether the bar association does
that.
MS. LORD-JENKINS said she has a legal opinion that was generated
by in-house council asking if the bar association actually does
respond to ineffective assistance complaints. The conclusion is
that they generally don't respond well because of limited staff
time. If there was a complaint from a defendant that OVR was
acting inappropriately, "and I think that's what we might be
getting at here. I think that I would probably decline that
because OVR has a statutory obligation to represent crime
victims." There are a lot of in-court solutions to defendant
complaints of OVR acting improperly. She can't fathom an
instance where that might happen.
9:57:09 AM
SENATOR BUNDE asked if this disagreement evolved out of one
incident.
MS. LORD-JENKINS said that is her assessment. Prior to this
disagreement the ombudsman office requested records from OVR
regarding a complaint against the DA's office. OVR was unable to
resolve the questions that a burglary victim had, but OVR had
documents on the case. The victim authorized the ombudsman to
obtain the documents, and OVR initially declined and then sought
a legal opinion. Legislative Legal Services opined that the
ombudsman did have the right to request the documents. OVR then
provided them. It was evidence at that point; it wasn't criminal
records, but it was information that her office needed. The
ombudsman didn't have a complaint against OVR. "We periodically
get comments/complaints about OVR, and generally, like we do
many complaints, we route people into their process, and
frequently they don't come back because their process has
resolved their complaints."
9:59:13 AM
SENATOR BUNDE said he is confused because she said she cannot
have complete access to information at OVR, but she can if the
victim provides a release?
MS. LORD-JENKINS said she believes that attorney-client
privilege belongs to the client, and the client can waive that.
If OVR has records of active criminal complaints, OVR has argued
that it cannot provide the records to the ombudsman. She won't
argue with that, but there are some records that she could get,
like OVR records of contact with the complainant - notes from
interviews with complainants. In her view, those would not be
classified as criminal investigation records. "I believe that we
have access to those."
SENATOR BUNDE asked if she would like to have oversight of OVR
even though she cannot get complete information.
MS. LORD-JENKINS said she believes she has oversight over OVR.
All agencies should have oversight. If the ombudsman is removed,
OVR will have no oversight. That is why she is opposing HB 92.
10:01:16 AM
CHAIR MCGUIRE said the OVR is staffed with attorneys that have a
professional code of conduct. The bar oversees that system.
REPRESENTATIVE SAMUELS said he sees there being two ombudsman
offices. If a victim doesn't like an OVR decision, the ombudsman
is saying they will make a decision, but where does it stop if
that decision is unacceptable? There is no oversight over the
ombudsman. He gets complaints about the ombudsman all of the
time. "And quite frankly I look at most of them, and it's sour
grapes - they did the investigation and you didn't get your
way." It is similar at the OVR and he views them as sister
agencies. HB 92 is simply saying they are separate agencies. If
it is set up that the ombudsman gets complaints about OVR, then
there will have to be something set up for complaints about the
ombudsman. He wholeheartedly agrees with Senator Green's remark.
10:03:08 AM
SENATOR GREEN said it did not sound like the ombudsman was
questioning the work of OVR, but just what was observed at the
police station. "Maybe they don't consider that their purview."
Are we addressing a problem that doesn't exist?
CHAIR MCGUIRE said there is the ombudsman investigating the
victim's ombudsman, and who investigates them? It is circular.
REPRESENTATIVE SAMUELS said he has had legislation that would
give in-court standing to OVR but couldn't get past the legal
tangling of evidentiary rule. He was constantly trying to get
access for the victims into the system. He was [personally
involved] in the system before there was OVR, and he didn't go
to the ombudsman; he would yell at Susan Parks. There was no
avenue of where a victim could go to get legal advice without
hiring an attorney.
SENATOR GREEN said that problem is solved.
10:05:23 AM
REPRESENTATIVE SAMUELS said it was solved, but now we allow
people to bypass OVR's decisions. "You will end up, over time,
deteriorating that. And maybe it will never happen again … but I
think we're better safe than sorry with drawing the line right
now and saying we've got two agencies."
SENATOR GREEN asked when OVR began to be called an ombudsman.
REPRESENTATIVE STOLTZE said the term was used frequently, and it
was modeled after the ombudsman statute. That was the intent.
The constitutional amendment was passed in 1994, and the
ombudsman office wasn't effective implementing it because it
didn't have the expertise. OVR was not only an ombudsman but
almost a foreign language translator for victims. The defendant
had an attorney, "and certainly the prosecutor was there, but
they were on a roll of -- sometimes dealing a lot with a victim
was counterproductive in many ways." But it is important, given
the constitutional amendment. "This was really to bring the
victim out of the shadow of justice." Creating the separate
agency was the only way to do that.
10:07:53 AM
SENATOR BUNDE said it is a turf battle, and he moved to report
HB 92 from committee with individual recommendations and
attached fiscal note(s). There being no objection, HB 92 passed
out of committee.
HB 196-HANDLING MATTERS AFTER A PERSON'S DEATH
10:08:48 AM
CHAIR MCGUIRE announced the consideration of HB 196. [Before the
committee was CSHB 196(JUD).]
The committee took a brief at ease at 10:09:06 AM.
10:10:11 AM
REPRESENTATIVE JAY RAMRAS, Alaska State Legislature, said HB 196
is an excellent update on wills and related material. It is a
little esoteric. Concerns of Senator Bunde were taken care of in
the Senate Labor and Commerce committee. The issue of anatomical
gifts is related, and he is prepared to roll HB 420 into HB 196.
10:12:30 AM
JANE PIERSON, Staff to Representative Ramras, said HB 196
clarifies and updates Alaska statute governing estates. It
provides a penalty clause for contesting a will or instituting
other proceedings even if probable cause exists. This will align
wills with revocable trusts, which are often used in wills. It
amends AS13.16.680 (a) to change the statement in an affidavit
to be used by a decedent's successor to collect personal
property in a small estate. It was changed in the previous
committee with an amendment by Senator Bunde. It will raise the
limit from $15,000 to $100,000 for personal property. It will
also count for $100,000 in vehicles. The bill also lays out
protections for benefits paid under life insurance and
retirement plans, so debtors cannot get into that money.
10:14:39 AM
CHAIR MCGUIRE said Version K includes anatomical gifts. She
declared a conflict because she has a bill on the Senate side.
SENATOR BUNDE moved to adopt the committee substitute (CS),
labeled 25-LS0447\K, as the working document. Hearing no
objections, Version K was before the committee.
CHAIR MCGUIRE said her father is on the Life Alaska board and
advocates organ and tissue donations.
10:15:46 AM
STEVE GREER, Attorney, Anchorage, said Section 1 of HB 196
conforms to current trust laws. Sections 2 and 3, which are the
subjects of the labor and commerce amendment, raise the amount
whereby it is not necessary to go through a probate process.
Currently if someone dies with more than $15,000, it has to go
through probate, and that was entirely too low. It is $50,000 in
Oregon with a provision for real estate. Washington has a
provision dealing solely with personal property, and that is
$100,000. There is concern that by raising it to $100,000, it
could be abused by beneficiaries. For example, a bad brother
goes into a bank with the affidavit and gets the money to
himself. But that affidavit procedure cannot occur until at
least 30 days after death, and someone could be appointed as a
personal representative by then and render the affidavit
procedure moot. A person can go back to the court and get a
personal representative appointed and get an order to turn the
money over. But if the money is gone, it is gone. It was felt
that it was a bit high, and $50,000 is an amount that everyone
can live with, although no one really objects to the higher
amount. Section 4 is very important, and he gave an example of a
person with a business calamity who had life insurance for a
spouse and child. Currently, if the money is paid directly it
would be exempt from creditor claims, but if the money is paid
to a minor child in trust, there is no provision protecting
those proceeds. So Section 4 fills that void in law.
10:19:43 AM
SENATOR FRENCH said Section 1 makes Alaska consistent with
trusts, but it is reversing a long-standing provision.
MR. GREER said Section 1 is really a penalty clause. For
example, if "a decedent wanted to leave property solely to one
child to the exclusion of the other child … but they're leaving
the child who isn't to receive as much, let's say a sum of
$25,000. What this does, if the decedent chose to include a
incontestability clause, which says that if the person who is to
receive the lesser amount -- and this was the choice of the
decedent -- were to contest this thing, and if they were to lose
… then they are being put to the test because they very well may
lose the $25,000 amount that they would otherwise receive. On
the other hand, if it turns out that the will was done
fraudulently or under duress, and the will is thrown out, then,
of course, this clause doesn't apply at all." California has a
similar provision. This was part of Alaska's uniform probate
code that was enacted in the early 1980s, and there have been
many, many changes made in the code by other states. "We have
decided this year that … we should bring this in line with our
present trust statutes, which have been brought current with
other states."
10:22:08 AM
SENATOR FRENCH asked why it wouldn't apply. The bill says it
will apply even if probable cause exists. "If I institute
proceedings because I think there's been fraud, and a judge
finds there's probable cause to support my belief that there's
been fraud," it says the penalty provision is enforceable.
MR. GREER said in that case, the will would be thrown out, and
the incontestability clause would have no force at all. Probable
cause and winning the case are two different standards. A person
who contested and lost would be penalized for having brought
that cause of action. It is meant to prevent needless and
miscellaneous litigation that sometimes occurs when people don't
get what they think they are entitled to.
SENATOR FRENCH said he still has great concerns. It seems to
prevent people from having an opportunity to have their claims
heard, and it makes them walk away when there is probable cause
to believe there is something wrong with the will.
10:24:24 AM
MR. GREER said he does his estate planning through revocable
trusts and not wills. "I would like to avoid the whole probate
process to begin with." He is part of a group trying to keep
Alaska's laws current with other states. The group wanted to
make will laws conform to trust laws. He understands Senator
French's point and can't dispute it. But there is a protective
provision. It does put the aggrieved party to the test. If they
have a strong case and prevail, the will gets thrown out. It is
meant to prevent cases brought about for harassment or to try to
hold the estate hostage.
CHAIR MCGUIRE said it is a difficult issue, and she noted the
business of attracting individuals who want enforceability in
wills. It is likely that they want the provisions to be as
enforceable as possible. Mr. Greer would like to draw more
business to Alaska and stay competitive with other states. But
if you were the person who didn't get what you thought you
should, you wouldn't like this provision.
10:26:52 AM
SENATOR BUNDE said it is a turf battle. The final wishes of the
deceased should have precedence. Someone in a dysfunctional
family should be able to write someone out of a will.
SENATOR BUNDE moved to report the Senate committee substitute to
HB 196, labeled 25-LS0447\K, from committee with individual
recommendations and attached fiscal note(s). There being no
objection, SCS CSHB 196 (STA) passed out of committee.
The committee took a brief at-ease at 10:28:57 AM.
HB 351-CONCEALED HANDGUN PERMIT: FINGERPRINTS
CHAIR MCGUIRE announced consideration of HB 351. [Before the
committee was CSHB 351(JUD).]
10:30:27 AM
KAREN LIDSTER, Staff to Representative John Coghill, said there
is new technology so the statutory requirement of two sets of
fingerprints in applying for a concealed handgun permit is no
longer necessary. One set is all that the Department of Public
Safety (DPS) needs. The DPS asked that the fingerprints be
submitted on their form rather than the FBI-approved card.
10:31:17 AM
SENATOR FRENCH asked if it is one set of ten fingers.
MS. LIDSTER said yes.
SENATOR GREEN moved to report HB 351 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, CSHB 351(JUD) passed out of committee.
SB 227-DIVEST INVESTMENTS IN SUDAN
CHAIR MCGUIRE announced the consideration of SB 227.
10:32:27 AM
SENATOR FRENCH, Sponsor, said SB 227 is as easy to understand as
any Sunday school lesson. There is genocide happening in Sudan.
Genocide is the deliberate extermination of ethnic or national
groups. The U.S. State Department and President Bush have called
it genocide, and it is being conducted by the Sudanese
government. Tens of thousands of human beings have been
murdered. Our duty is clear. We must not allow any Alaska
dollars to further this terror. SB 227 takes the approach of
targeted divestment. Divestment works. In 1997 the United States
declared sanctions against the Sudanese government and got them
to drop their support for terrorists and to cooperate on
counter-terrorism. The focus in this bill is on companies with
active business operations in Sudan. Not one U.S. company is
doing business there and hasn't since 1997 when sanctions were
put into place. Fourteen states including Texas, Arizona,
Kansas, Florida, and North Carolina have targeted divestment
laws aimed at Sudan. Detractors acknowledge the righteousness of
the cause but point to two problems. One is a slippery slope: if
Sudan, why not tobacco or South Africa? But this case is not
that one. There is a large difference between genocide and
smoking cigarettes. We should all agree not to invest in
companies that are helping a government kill their own citizens.
The second argument is that it will cost money. Costs are wildly
overstated. No one at this table would knowingly invest in a
company that is sponsoring genocide. Why do so as a state?
10:34:48 AM
DIXIE HOOD, Family Therapist, Juneau, said she has been the
beneficiary of the permanent fund dividend, and she supports
humanitarian concerns over possible profits. The international
boycott in South Africa helped end apartheid. She supports
restricting state investments in Sudan until human rights abuses
in Darfur have stopped and not resumed for 12 months.
10:36:15 AM
HELENA FAGAN, Juneau, said the facts in Sudan are clear. She
will give a brief history of her family to point out her
personal devotion to this cause. Her mother lived in the Lodz
ghetto of Poland and was then moved to Auschwitz and Bergen-
Belsen. Her great grandparents were gassed in a truck and dumped
in the mass graves of Chelmno. Her grandfather died in a work
camp. Her grandmother died in the Auschwitz gas chambers. Her
mother is part of a network of survivors who worked to create
the holocaust memorial in Portland, Oregon. Ms. Fagan traveled
with her mother to all the death camps in Poland and collected
soil to deposit in the foundation of the memorial. The soil
holds ashes and bones fragments. The mass grave sites she saw
were as large as football fields. Her mother spoke publically
many times about her experiences, including for Pillars of
America. Every time she spoke she had nightmares, but she
continued so that people -- especially young people -- could
hear what happens when hatred grows and is fed by indifference.
MS. FAGAN said her mother is 78 and has decided that she is done
speaking. "So I figure that now it's my turn to speak."
Indifference killed her family as much as hatred did. Her
grandfather tried to get his family out of Poland for years, and
nobody would help. The United States wouldn't let him in even
though he had money and appropriate paperwork. Her mother was
allowed to enter America many months after she was liberated
from Bergen-Belsen on a stretcher and too emaciated to stand.
During the past month, while people are killed in Darfur, she
has heard state leaders speak of why they hesitate to support SB
227. The director of the permanent fund says that financial gain
is his directive, and by divesting someone else will just buy
in. "But I also believe that we can have financial gain without
contributing to suffering, and I believe that we must not be
indifferent to genocide and hatred."
10:39:50 AM
MS. FAGAN said when she told her mother that she was testifying,
her mother thought she was wasting her time. She wants the
committee to prove her wrong and pass SB 227.
10:40:40 AM
MICHAEL BURNS, CEO, Alaska Permanent Fund Corporation, Juneau,
said he sincerely appreciates the motivation that led to this
bill and is profoundly disturbed by the incomprehensible
situation in Darfur. It is the legislature's prerogative to
direct investments of the permanent fund, and if asked to divest
it will do so. He said to think carefully. In 30 years the fund
has been invested for the financial benefit of Alaskans. Placing
a social investment directive on the fund would be a significant
change to the core mission. The prudent course is to make
investment decisions based only on economics. "After the
question of prudence is the question of efficacy. We are
concerned by the prospect of placing a socially motivated
directive on the permanent fund that will have some costs when
we have not seen definitive proof that these divestment efforts
are or have been effective." He provided a review the effects
that divestment from South Africa had on the decision to end
apartheid. Those researchers said it was other forms of pressure
that caused the South African government to change. The U.S.
treasury and state department are trying to bring an end to
genocide in Darfur. SB 227 is a significant decision that will
impact Alaska's investments well into the future.
10:43:12 AM
MR. BURNS said the two departments spoke to the Senate Banking
Committee in Washington. The common theme was that individual
divestment policies at the state level will hinder their
efforts. Studies of the sovereign wealth funds of the world rank
the permanent fund in the upper decile for best practices,
including making investment decisions only on financial grounds.
SENATOR BUNDE asked about the constitutional language from which
Mr. Burns takes his direction. There is other legislation that
considers assets of the state not available for initiatives.
Assets are supposed to be used for the good of Alaskans.
MR. BURNS said the constitution only requires the protection of
the corpus and that 25 percent of the revenue goes to the
permanent fund. Everything else is statutory, which now is to
invest for maximum return while protecting the principal.
10:46:33 AM
SENATOR FRENCH asked if he has read some of the divestment
materials. Three companies have changed operations in Sudan as a
result of divestment. One is CHC Helicopter Corporation -- the
largest provider of helicopter services in the global offshore
oil and gas industry. It recently ceased all business operations
in Sudan because of concerned investors. The other is Rolls
Royce, which sells oil equipment to Sudan. It announced its
decision to leave citing increasing humanitarian concerns.
Siemens pledged to pull out of the country because of
divestment. The Brooking Institute said: In the view of some
analysts divestment campaigns may prove more effective than
sanctions. He asked if that changes Mr. Burns' view of efficacy.
MR. BURNS said he was not aware and has not seen that report.
Embarrassing a government that is taking part in this kind of
activity is difficult. They are beyond it. "I don't think we're
going to jawbone these people into doing the right thing."
SENATOR FRENCH asked if he disputes it.
MR. BURNS said he didn't he just wasn't aware of it.
SENATOR FRENCH asked him to reconsider in the light of the fact
that three major corporations have ceased operations there. If
corporations don't help the Sudanese government kill their own
citizens, the government wouldn't be able to do it. He said he
means no harm to Mr. Burns, but it is a reality on the planet
being done with the help of corporations that supply bolts,
trucks, and machinery to keep it going.
10:49:36 AM
SENATOR BUNDE said the efficacy thing bothers him. His limited
understanding is that the weapon of choice for Africa is a
machete and doesn't involve Rolls Royce. If Alaska limits its
investment will it keep the leaders from having lunch, or will
the poor people who are being abused have less food?
MR. BURNS said he was not aware of the two companies that
Senator French discussed. If Alaska divested its holdings in the
four or five companies, he doesn't know what effect that would
have on anything. If Alaska sells, someone else will buy. How
does that harm the company and therefore harm the government?
SENATOR BUNDE said he would very much like to see the genocide
stop, but it would be boots on the ground by the United Nations
and African nations to stop it. Over years, divestment might
have an impact. But how many people will die in the interim?
There are quicker ways to protect these people.
10:51:51 AM
SENATOR FRENCH said the bill is not aimed at any company
providing humanitarian aid or anyone importing food or lighting.
It is targeted divestment.
SENATOR STEVENS asked how Mr. Burns would figure out what
companies the fund would divest if this bill passes.
MR. BURNS said there are lists available, but he hasn't thought
it through. He would have to deal with the fund's managers. Some
holdings are in the index funds. "You're either in an index or
you're not in the index." "If you invest in an index fund of the
S&P 500, you are in the S&P 500 with billions of other dollars."
The S&P 498 has a custom benchmark and that is managed
differently at a different expense level. "That's what we tried
to reflect in the fiscal note."
SENATOR FRENCH said, "When you use the word S&P you know that
this S&P doesn't include any targeted companies." Not a single
U.S. company is doing business there.
10:54:02 AM
MR. BURNS said he should have used AEFA [Europe, Australasia,
and Far East index]. "I stand corrected."
PAT GALVIN, Commissioner, Department of Revenue, said the
administration supports SB 227. The bill properly reflects a
proactive action against genocide in Darfur by divesting in
companies that profit from those activities. The situation is an
ongoing human tragedy and Alaska has an opportunity to take a
stand against those atrocities. Congress and the Department of
State have labeled it genocide, and that is an unprecedented
situation. "With that legislation there [was] also language that
would tend to shield, potentially, the decisions of social
investing that may otherwise be subject to potential claims
based upon other precedent, and we are working with the
Department of Law to look at how that congressional action may
affect decisions, absent the passage of this legislation, to
allow the administration to actually take certain actions with
regard to divestiture that would still be compliant with the
state investment laws." There are areas of the legislation that
should be amended and he wants to work with the sponsors in the
finance committee "to try to eliminate some of the burdens with
regard to the machinery of how this bill would affect the
divestiture, in order to minimize some of the costs that don't
change the core principal of affecting the divestiture of state
funds in this manner." There may be some additional language to
shield some of the investment decisions that Alaska can't really
manage and affect, such as passive investments and some index
funds. They should be shielded from this. The administration
would like to work with the bill sponsors on it.
10:57:36 AM
COMMISSIONER GALVIN said it is a difficult decision and the
state has avoided it in the past. But the situation in Darfur is
unique so the state can avoid a slippery slope and still ensure
that state funds are not invested in a way to have any chance of
contributing to the suffering in Darfur.
DEBORAH BOCK, Volunteer, Save Darfur Anchorage, said last year
Congress passed the Sudan Accountability and Divestment Act
prohibiting any company from receiving any contracts with the
federal government because of their complicity with the ongoing
genocide. The act also encourages states to adopt policies of
targeted divestment. It opens the door for every state to divest
from the foreign oil, mining and power companies that are
providing documented substantial support to the government of
Sudan in its genocidal campaign. Currently 24 states have
adopted or are considering divestment policies. When Arizona
joined this group last month, all 90 lawmakers supported the
legislation. It is now Alaska's turn. SB 227 would require the
permanent fund and the Alaska Retirement Management Board to
implement targeted divestment, which would mean selling off
holdings in companies that have been indentified by multiple
international organizations as having documented complicity in
the Darfur genocide. "We sell those foreign holdings and
purchase holdings in American companies that are genocide free -
it's that simple." The permanent fund has about $22 million
invested in six foreign companies that are linked to genocide.
China is the majority shareholder of two of them, Sinopec and
Hong Kong. China is also the leading small arms dealer to the
Sudan government. China sold $55 million worth of small arms to
Sudan from 2003 to 2006 that have been used by the government
against its citizens. This is the first time in history that the
U.S. Congress and president have labeled genocide while it is
occurring. Targeted divestment isn't about sacrificing profits
for the greater good. There are many, many genocide-free
investments that are equally profitable.
11:01:07 AM
MAX CROES, Sudan Divestment Task Force and Genocide Intervention
Network, Washington D.C., said his organization's mission is to
power individuals and communities with tools to stop genocide.
He said the Sudanese government is a global anomaly; it lacks
the ability to produce capital, and it relies solely on foreign
corporations for technology and capital to develop its oil.
Targeting these corporations effects change inside the country
by pressuring the government. It works. Nine corporations have
withdrawn or substantially altered their policies inside Sudan.
In reference to sovereign wealth funds, some of the largest have
elected to adopt investment policies that reflect financial and
moral obligations. The Norwegian government pension fund,
Australian future fund, and New Zealand superannuation fund are
all in this category. Sovereign wealth funds are responsible for
preserving their resources for future generations, but they also
have responsibility to preserve a world that is good. The
permanent fund's actions would not be out of line from similar
funds. This is not a permanent policy; there are four sunset
provisions including if the genocide ends and if the president
or Congress assert that divestment policies interfere with their
ability to make foreign policy.
11:04:01 AM
SENATOR FRENCH moved to report SB 227 from committee with
individual recommendations and attached fiscal note(s).
SENATOR STEVENS objected to say he wishes he knew more about the
Darfur issue. His knowledge of the holocaust is better, and he
can't help but think that if we had done something about that in
1941, some of the suffering would have stopped. He questions the
legislation, but it is an issue worth discussion, and he is
willing to move it to the next committee for that purpose.
CHAIR MCGUIRE said she echoes those thoughts and the slippery
slope and how SB 227 would work in a practical sense. But she
has woken up at night on this issue, and saying nothing and
doing nothing during times of atrocity makes us responsible.
SENATOR STEVENS removed his objection, and SB 227 passed out of
committee.
There being no further business to come before the committee,
Chair McGuire adjourned the meeting at 11:06:06 AM.
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