SB 43-IMMUNITY FOR FIRE DEPT. & MEMBERS  CHAIR LEDOUX announced that the first order of business would be SENATE BILL NO. 43, "An Act relating to immunity for a fire department and employees or members of a fire department." 1:08:39 PM JORDAN SHILLING, Staff, Senator John Coghill, Alaska State Legislature, said SB 43 relates to contract fire departments and affects the fire departments of Fairbanks, Anchorage, Chugiak and Girdwood. He offered that government creates immunities for itself in different areas which is fairly common especially when it comes to public safety and fire departments in particular. He advised that most states have statutes that protects the fire departments themselves and its employees. He referred to AS 09.65.070, and conveyed that it provides immunity except to contract departments. He offered that he researched the legislative history of AS 09.65.070, and noted it was established in the mid-1970s, and is not clear whether contract fire departments were in existence, and that the language was crafted from a statute in Delaware. 1:10:21 PM CHAIR LEDOUX asked whether contract fire departments are considered volunteer fire departments. MR. SHILLING answered that these are .501(C)(3), non-profits and are mostly volunteer based although the chief will generally be paid. 1:10:48 PM MR. SHILLING continued his presentation and stated that because the Municipality of Anchorage and the Fairbanks Northstar Borough contract with these fire departments and utilize their services even though the statute doesn't cover those fire departments, fire fighters, and volunteers. In that regard, they are exposed to extra liability that others are not and this bill extends that immunity to those departments. He advised that initially the bill was introduced with full immunity. He further advised that concerns were expressed in creating a blanket immunity so the fairly common carve out exception of gross negligence and willful acts of misconduct was added. He pointed out that the second change to the bill was as a result of Representative Seaton's suggestion to ensure that this immunity does not somehow apply to a contractor of a private entity. 1:12:10 PM CHAIR LEDOUX questioned "does not apply to ..." 1:12:12 PM MR. SHILLING offered the example of a village having a relationship with a contract department, and that department had a subsequent contract with a private entity, the change was to ensure that this bill did not somehow protect the private entity. 1:12:37 PM CHAIR LEDOUX asked whether this only covers contracts with .501(C) organizations. MR. SHILLING responded that Chair LeDoux was correct in that these are mostly structured in that manner. 1:12:57 PM REPRESENTATIVE GRUENBERG referred to a 3/16/15, letter from Fire Chief John Fullenwider, Municipality of Anchorage, which read: "These bill, if enacted, will protect residents by reducing the risk of liability and frivolous tort claims against municipal and non-profit fire agencies." He asked what the bill does to change the liability of the municipality itself. MR. SHILLING answered that municipally operated departments, such as the Anchorage Fire Department already has protections in statutes and this bill does not affect those and if anything extends its protections, but certainly does not reduce it. REPRESENTATIVE GRUENBERG said a bill is forthcoming related to the issue of retroactivity. He surmised that this bill is not retroactive and will only apply to claims arising on or after the effective date of this Act. MR. SHILLING replied "that is correct, there is not an applicability section here so it would apply." REPRESENTATIVE GRUENBERG highlighted that he is serving notice he may offer an applicability section to state that this applies to claims arising on or after the effective date of this Act. Although, he realizes he may have violated the 24-hour rule, but it is important to make it clear. 1:15:48 PM MR. SHILLING opined that the drafter of the bill may be on the line to determine whether this is a necessary change as it may be that this inherently only applies to claims on or after. REPRESENTATIVE GRUENBERG offered that routinely within criminal law it includes the language, but this issue has not been before the House Judiciary Standing Committee this year on the civil side. CHAIR LEDOUX opened public testimony. 1:17:34 PM MITCH FLYNN, Fire Chief, Steese Volunteer Fire Department, said the Steese Volunteer Fire Department, a non-profit organization in Fairbanks, provides fire and EMS services through a contract with the Fairbanks Northstar Borough. He noted that last year the legal team at the Fairbanks Northstar Borough pointed out his department's lack of immunity protection and vulnerability to lawsuits. He requested a change in the Alaska Statutes that provides the same immunity protections as offered to municipalities. He explained there are approximately seven non- profit fire departments statewide contracting with a municipal government and providing the services of fire and EMS, and noted that the population base is approximately 100,000 residents. He highlighted his concern that the lack of immunity protection may have a negative impact on recruitment and retention of volunteers in the future. On a good note, he stated, by passing this legislation it may help identify costs and annual premiums for general liability insurance that is paid out. He described the irony of the situation in that his department may respond to a Fairbanks Northstar Borough call and yet incur a liability claim of which affects the taxpayer. He remarked it is the desire of his department to offer fire and EMS services safely and to the best of its ability without the fear of lawsuits and unwanted claims. 1:20:47 PM DOUG SCHRAGE, Fire Chief, Fairbanks University of Alaska Fire Department, Alaska Fire Chiefs Association, said that the Alaska Fire Chief Association represents most of the fire and emergency service leaders throughout the state. He said he joins with Chief Flynn, local colleagues, and those of the Alaska Fire Chiefs Association in support of SB 43. He explained that the University Fire Department, the Steese Fire Department, and several others are student based, non-profit fire departments providing fire protection to the Fairbanks Northstar Borough on a contractual basis. As such, he explained, it is not a municipal fire department and would benefit from the immunity this bill affords. He noted that of particular concern is that it is a workforce development program responsible for providing many of Alaska's municipal fire departments with experienced and training fire fighters. He pointed out that in this current fiscal environment, at the University, concern over the liability this bill addresses could be a factor in the future of its program. For those reasons, he stated, he joined his colleagues in supporting SB 43. 1:22:52 PM REPRESENTATIVE CLAMAN asked what it would look like for a non- municipal fire department in terms of where there would and would not be potential liability, should SB 43 pass. CHIEF SCHRAGE responded that this bill extends to fire departments such as his in extending immunity from liability essentially under the Doctrine of Sovereign Immunity to non- municipal fire departments. He described the department as contractors and therefore independent of the municipal or borough government those immunities do not extend to the departments or employees. He described its exposure to general liability as enormous in terms of nonfeasance or failure to provide service all the way to injury to his employees, and noted it may be a failure to protect the citizens that pay taxes. He opined that this bill would specifically address those sorts of immunities. REPRESENTATIVE CLAMAN offered that currently municipalities have greater protections as it has the protection of the sovereign. Whereas, he continued, a volunteer fire department could be exposed to negligence and liability for the work they are performing rather than the gross negligence protection currently afforded municipalities in the same setting. CHIEF SCHRAGE offered "that is my understanding." 1:25:06 PM CHIEF SCHRAGE responded to Representative Gruenberg that on an elementary level he is familiar with the legalities of this bill, but is not intimately familiar with the nuances and effects of the various substitute versions and amendments. 1:28:03 PM The committee took an at-ease from 1:28 to 1:30 p.m. 1:30:19 PM REPRESENTATIVE GRUENBERG referred to current law and the House Judiciary Standing Committee CS, and then referred to [Section 1], AS 09.65.070(c), [page 1, lines 5-8], which read: (c) An action for tort or breach of a contractual duty based on the act or omission of an employee or member of a fire department in the execution of a function for which the department is established may not be maintained against an employee or member of a fire department ... REPRESENTATIVE GRUENBERG highlighted that the first sentence is essentially the same as current law except more elegantly drafted. 1:31:11 PM JILL DOLAN, Assistant Borough Attorney, Fairbanks Northstar Borough, agreed with Representative Gruenberg and noted that the substantial change is the definition of fire department that begins on page 1, lines 13-24 ... REPRESENTATIVE GRUENBERG interjected that before anticipating his questions, to refer to the second sentence, [page 1, lines 8-23], which read: An action for tort or breach of a contractual duty based on the act or omission of an employee or member of a fire department in the execution of a function for which the department is established may not be maintained against a fire department unless the action alleges intentional misconduct or gross negligence or is based on the act or omission of an employee or member of a fire department in the execution of a duty under contract with a private entity. REPRESENTATIVE GRUENBERG described the sentence as re- establishing the liability of ... the first sentence deals with an action, on line 6, "or omission of an employee ..." He offered that in other words, if a person sues a fireman because he dropped a person and said "burn, burn," that's what it applies. In the event a person sues the fire department, which is where the second sentence comes in, on lines 10-11, "may not be maintained against a fire department." He opined that is the essential difference between the first sentence and the second sentence. Whereas, he pointed out, the first sentence is an action against an employee, and the second sentence is an action against a fire department. 1:32:47 PM MS. DOLAN answered that Representative Gruenberg was correct with the additional qualification that if the action is against a fire department, a person can still have an action if it alleges intentional misconduct or gross negligence. REPRESENTATIVE GRUENBERG offered that Ms. Dolan was one step ahead of him as under current law a person can sue a fire department for negligence. He said that "this" immunizes the fire department itself, whether or not it is volunteer. A person can no longer sue it unless the action alleges intentional misconduct or gross negligence, he reiterated. MS. DOLAN responded that currently in AS 09.65.070(d) there is, for municipal fire departments, discretionary function immunity for damages. Therefore, she explained, currently a person cannot maintain an action for damages against a municipal fire department if it is based on a discretionary function. She further explained that the same immunity does not apply to the contracted fire department, such as what Chief Flynn and Chief Schrage were discussing, as they are contracted fire departments. She related that the intent was to incorporate a similar immunity and to Subsection (c) for those fire departments. 1:34:18 PM CHAIR LEDOUX remarked that discretionary immunity means that a fire department can't be sued because it decided not to exercise a function. For example, the Department of Transportation (DOT), if a division does not put up a guard rail, the state cannot be sued. In the event DOT puts up a guard rail and does not maintain the guard rail, the state can be sued. She noted that the first example is discretionary and a government cannot be sued for not doing something which is discretionary. The government can be sued for negligence in something the government decides to undertake. MS. DOLAN stated that Chair LeDoux "is absolutely correct," as discretionary functions are generally aspects involving allocation of financial resources. She agrees that once a duty is undertaken it generally cannot be taken in a non-negligent manner, but there are certain on-the-scene decisions in firefighting that could be discretionary because it entails resource allocation and those decisions are vested in the fire chief in charge. She offered that the courts have extended some discretionary function immunity in the context of fire that would include on-the-scene decisions. 1:35:54 PM REPRESENTATIVE GRUENBERG surmised that discretionary actions are immunized and the issue here is regarding non-discretionary. He read that under current law, if a person sues a fire department itself rather than the individual, for non-discretionary the standard is negligence. He referred to line 11, " ... intentional or gross negligence ..." He stated that is now the standard and opined it was added and was not in the original bill. He described it as significantly raising the standard for suing a fire department involved in a non-discretionary function. 1:37:00 PM MS. DOLAN replied that it changes the standard for the non- discretionary function. The intent, she explained, was that because contracted fire departments cannot enjoy discretionary function immunity to leave subsection (d) intact and allow municipalities to continue to enjoy the immunity. Instead, in the context of looking at fire departments in general, extend an immunity that is not a full and complete immunity and limit it, she highlighted. She further highlighted that the intentional misconduct or gross negligence language is intended to limit how far that immunity could extend, and while listening to the hearing with the committee substitute noted it is not intended to expand the immunity. REPRESENTATIVE GRUENBERG opined that he intends to look at the bill because it appears to go as far as it can go. CHAIR LEDOUX announced she would hold the bill as it appears this bill may go farther than the original intent of the sponsor. 1:38:20 PM MR. SHILLING advised that upon introduction of the bill, the non-discretionary immunity was to non-discretionary activities for fire departments. He stated the only action the Senate Community and Regional Affairs Standing Committee performed was the carve out for intentional misconduct or gross negligence. He noted the intention all along was to expand that immunity. REPRESENTATIVE GRUENBERG opined that the committee should look at the bill and ascertain that it does what was intended. CHAIR LEDOUX closed public testimony after ascertaining no one further wished to testify, and announced SB 43 is held over.