HB 351-POLICE OFFICER PROTECTIONS/CERTIFICATION  8:07:52 AM CHAIR LYNN announced that the first order of business was HOUSE BILL NO. 351, "An Act establishing procedures relating to issuance, suspension, or revocation of certification of police officers by the police standards council; making certain court service officers subject to certification by the police standards council; making confidential certain information that personally identifies a police officer; relating to requesting or requiring police officers to submit to lie detector tests; repealing a provision exempting certain police officers from a prohibition against requiring certain employees to submit to lie detector tests; and providing for an effective date." 8:08:57 AM REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, as sponsor, introduced HB 351. He explained that his office is working on a committee substitute for HB 351 that would be supported by people on both sides of the issue, and while that version is not yet ready, there is a committee substitute for the committee's consideration that he described as "sufficiently mature." He requested that the committee not move out HB 351 today. 8:10:16 AM REPRESENTATIVE KELLER moved to adopt the proposed committee substitute (CS) to HB 351, Version 27-LS1352\M, Wayne, 4/4/12, as a work draft. REPRESENTATIVE SEATON objected for the purpose of discussion. 8:10:40 AM JULIE LUCKY, Staff, Representative Mike Hawker, Alaska State Legislature, reviewed the changes in Version M. She said because no one stated an objection to the use of suspension, it remains in the bill. The primary concern expressed at the last hearing, she reviewed, was that the Alaska Police Standards Council's (APSC's) hands not be tied to a decision made by a hearing officer or to a decision made by a court of arbitration when the council judges that the officer in question should be disciplined for objectionable behavior. To address that concern, she said, Section 1 now would allow the council to revoke the certificate of a police officer or refuse to issue a certificate to an applicant following filing of an accusation and delivering notice of it. She said Version M removes the requirement that the council's refusal or revocation must be consistent with the decision of the hearing officer, because that requirement is limiting to the council. She offered her understanding that under the current Administrative Procedure Act (APA), if the council does deviate from the decision of a hearing officer, it must support its reason in writing. 8:13:14 AM MS. LUCKY said no changes were made in Section 2, which requires the council to prove the conduct of the accused by clear and convincing evidence. She acknowledged that this issue is a point of contention, and that some would want the proof to be a preponderance of evidence. She said that is a policy call for the committee to make. Ms. Lucky said Section 3 prohibits the council from taking action on ["a proceeding to revoke, suspend, or refuse to issue a certificate to a police officer"] that is under dispute or has been taken up by a court; however, Version M would add certain circumstances [paragraphs 1-7, on page 2, line 25, through page 3, line 21], under which the council would could make exceptions to that prohibition. 8:16:47 AM MS. LUCKY, in response to Representative P. Wilson, stated that the overall intent of Section 3 is to separate employment actions taken through collective bargaining from revocation actions taken when an officer fails to meet the standards set by the council. 8:20:43 AM MS. LUCKY, in response to Representative Seaton, said, "These seven exceptions would be the exceptions to considering evidence that has already been decided through another process or is currently in dispute in another process." REPRESENTATIVE SEATON asked Ms. Lucky to confirm that AS 18.65.244 relates only to actions following court cases or grievance procedures. MS. LUCKY said Representative Seaton's summation is correct. 8:23:31 AM REPRESENTATIVE P. WILSON remarked that sometimes appeals take a long time, and she ventured that "this" would allow [the officer in question] to continue making appeals and "be able to do what he wants." MS. LUCKY indicated that that is correct, except in the case of the previously mentioned seven exceptions. REPRESENTATIVE P. WILSON proffered that an officer being investigated for sexual misconduct, as long as it did not occur while on duty, would be allowed to keep [working] until the appeal process was completed. MS. LUCKY said that is how she interprets [Section 3], which was reworked in response to concerns expressed by the committee at its last hearing of HB 351. 8:25:37 AM REPRESENTATIVE SEATON asked if Version M would give [the council] subpoena power, another avenue for obtaining information. MS. LUCKY said that is not addressed in Version M, which was written by a bill drafter, and she said she would like to get more information from the bill drafter. She said, "It would only apply to court cases [and] arbitration where the termination had been reversed." REPRESENTATIVE SEATON pointed to the phrase, "or is in dispute", on page 2, line 14, and said, "It looks like they could not use any of that information to do it." MS. LUCKY responded, "That is correct, other than misconduct that is enumerated in items 1-7; that's my understanding." 8:28:10 AM MS. LUCKY noted that the original bill version adds court services officers to the definition of "police officer" in Section 4, and Version M offers no further changes. She indicated that there is a trend toward adding court services officers already in the making, and the sponsor is considering an amendment to delay the effective date of Section 4 "if that's happening anyway." In response to the chair, she confirmed that the amendment is included in the committee packet. Ms. Lucky said Sections 5-6 address the administration of a lie detector test. She related that in response to committee discussion at the last hearing, the sponsor has clarified, [with the addition of paragraph (3) in Version M], his intent "that this apply to current employees and not bar the use of lie detector tests during the application process." She stated that no changes were made to Section 7, which addresses the confidentiality of personal information held by the employer and includes the following exceptions of that which could be released for inspection, provided the officer was legally arrested: a photograph of the officer, information included in a 9-1-1 call, a police or investigative report, a complaint made to a law enforcement agency, and a witness statement. She said the only objection heard regarding Section 7 is regarding the release of photos. She indicated that concern has been expressed that photos would have to be taken down in all the police stations. She said that is not the intent of the sponsor. She said the sponsor envisions the waiver process to include a form signed at the beginning of the hiring process regarding the release of photographs. 8:31:47 AM REPRESENTATIVE KELLER, regarding the aforementioned Section 3, paragraph 7, questioned "who would notify the police officer of those circumstances." He said he is trying to get clarification on the "large section related to refusal to answer." MS. LUCKY suggested someone else may be better able to explain that portion of Version M. 8:33:23 AM REPRESENTATIVE P. WILSON directed attention to Section 6, on page 4, and noted that Version M takes away the "or" on line 25 between the first two reasons that ["A public employer may not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment"]; therefore, both reasons would have to apply together. MS. LUCKY responded that that is not the intent of the sponsor. She offered her understanding that by moving the "or" from between the first two paragraphs to between the second and newly added third paragraph [on line 28], the "or" would apply to all three paragraphs. 8:35:50 AM REPRESENTATIVE SEATON, regarding Section 1, asked about the purpose of a suspension. He said he is troubled by changing the council to one that upholds minimum requirements to a council that is disciplinary and issues suspensions. MS. LUCKY responded that one circumstance in which suspension may be a better choice is when an officer is seeking treatment for chemical or alcohol addiction and could be sent to a recovery program while under suspension. She suggested that it may be helpful to be able to suspend someone so that he/she does not have to go through the process of being recertified. REPRESENTATIVE SEATON said he wants the people on both sides of the issue to address it. 8:39:34 AM REPRESENTATIVE GRUENBERG directed attention to a legal memorandum in the committee packet from the Alaska Civil Liberties Union (ACLU), and offered his understanding that under HB 351, the council will be able to suspend the certificate of an officer before filing an accusation or a statement of issues. He asked if it is the intent of the sponsor that the council should be required to provide any statement of reasons to the officer. MS. LUCKY answered that the sponsor is responding to a concern regarding voluntary relinquishment of a license. She explained that it is the sponsor's intent to allow an immediate suspension when it perceives "something is going wrong," so that there is time to go through the process without the first step being decertification or revocation. She reiterated the sponsor's intent to make further improvements to the proposed legislation. MS. LUCKY, in response to Representative Gruenberg, said the issue of hearings is covered under AS 44.62.330-630, which is the Administrative Procedure Act. 8:43:26 AM MS. LUCKY, in response to Representative Petersen, requested that the aforementioned amendment in the committee packet be ignored for the time being. 8:44:19 AM REPRESENTATIVE GRUENBERG said he is particularly interested in looking at the contours of what rights a person in the position of an accused police officer has under due process. He opined that HB 351 has many constitutional and policy issues to consider. 8:46:47 AM REPRESENTATIVE JOHANSEN, regarding Representative Seaton's mention of suspensions, noted that AS 18.65.240 includes standards related to education and the physical and mental make- up of an officer. He said these are issues that can be addressed and corrected. He said he would like the council to have the flexibility [to suspend an officer] and for the issue of suspension to not be restricted to the idea of immorality or lying. 8:48:03 AM MS. LUCKY echoed Representative Johansen's remark regarding allowing the council to use suspension as a tool, and emphasized that the proposed legislation would not bind the council to having to suspend someone. 8:48:31 AM REPRESENTATIVE GRUENBERG mentioned past legislation addressing the removal of a University of Alaska regent. He remarked that someone could be under suspension and be under a temporary disability, and that person should be able to seek a hearing and reinstatement during the process. MS. LUCKY [nodded] in response to the chair asking her if she understands the concern. 8:49:40 AM REPRESENTATIVE P. WILSON posited that the committee needs to narrow down the issue related to personal identification. 8:50:16 AM REPRESENTATIVE SEATON removed his objection to the previously stated motion to adopt the proposed committee substitute (CS) to HB 351, Version 27-LS1352\M, Wayne, 4/4/12, as a work draft. There being no further objection, Version M was before the committee. 8:51:36 AM RICHARD BURTON testified that although he is a member of the Alaska Police Standards Council, he was not testifying in an official capacity, but was there to impart some history regarding the council and its standards. He related his involvement in drafting the language that became the original police standards law, through Senate Bill 1, in 1971. He said he served as the commissioner of the Department of Public Safety during Governor Jay Hammond's term of office and Governor Walter Hickel's last term of office, and he can offer insight from his time on the council, which currently totals 14 years. He said before statehood there were no police standards and "Alaska was a pretty wild and wooly place." He offered examples. He opined that since statehood, the state has done a good job in creating state police, highway patrol, and local law enforcement. 8:54:39 AM MR. BURTON said when HB 351 was introduced he was shocked, because he has never seen any officer treated so badly as to warrant fixing a system that is not broken. He offered to answer questions. He observed that many issues contained in the bill belong in the collective bargaining arena. In response to Representative Keller, he offered further details regarding the history of law enforcement in the territory of Alaska and into early statehood. He said there are two definitions in law: a police officer, which is a person with a badge on the street, and a peace officer, which could be a deputy marshal or Federal Bureau of Investigation (FBI) agent, for example. He said because peace officers do not use patrol cars, answer calls, or write tickets, he does not see that they need the same level of training. 8:58:31 AM REPRESENTATIVE JOHANSEN asked Mr. Burton to address the possible fiscal impact under HB 351 that may result from training the additional people. MR. BURTON offered his understanding that there would be an additional 400 hours of training, some of it physical, and he ventured that some court services officers would not be capable of completing such training. He indicated that the court services officers would lose the skills they acquired in that training if those skills were not utilized and kept current. REPRESENTATIVE JOHANSEN noted that HB 351 would not be heard by the House Finance Committee. He stated concern about the fiscal impact. CHAIR LYNN said the committee needs to delve into that issue. MR. BURTON said the training would probably occur over several years and cost "several hundreds of thousands of dollars." 9:02:15 AM REPRESENTATIVE P. WILSON asked Mr. Burton what he thinks about giving the ability to suspend to the council. MR. BURTON said he is not certain how it would be useful. He said substance abuse problems currently are being handled administratively through management. He indicated that a police chief should be able to take care of these problems on his/her own, rather than foisting them off on the council. 9:03:31 AM MR. BURTON, in response to Representative Keller, said he cannot recall an instance where an officer whose certification was revoked was subsequently rehired. He said what bothers him the most in the proposed legislation is the change from preponderance of evidence to clear and convincing evidence. He opined that it is not right to single out the council to have to reach a higher standard of proof. 9:05:08 AM REPRESENTATIVE PETERSEN questioned whether the idea behind having court services officers increase their training may be because of increased threats to court personnel. MR. BURTON responded, "[If] somebody wants to do something, they're going to do it, and having a degree or high level of education's not going to stop it." He said currently there are good people who are dedicated to their jobs providing security. 9:06:34 AM REPRESENTATIVE SEATON, regarding the provision in HB 351 that would not allow the council to consider evidence closely related to disciplinary action under certain circumstances, asked Mr. Burton if the council has independent authority to generate subpoena evidence. MR. BURTON offered his understanding that the council has used subpoenas to get records. REPRESENTATIVE SEATON referred to the aforementioned seven exceptions and asked Mr. Burton if he has concerns about not being able to gather that information. MR. BURTON related that he received Version M just this morning, but said, "It's not real clear how binding some of the previous action would actually be to prohibit the council from performing what is statutorily their responsibility." He said he does not know if this language has to do with a loophole, and he does not want to offer further opinion before hearing what the council's attorney has to say. 9:10:16 AM CHAIR LYNN handed the gavel to Vice Chair Keller. 9:10:42 AM SHELDON SCHMITT, Police Chief, Sitka Police Department; Chair, Alaska Police Standards Council (APSC), testified on behalf of APSC in opposition to HB 351. He explained that he thinks the proposed legislation would erode the standards to which the council currently holds police officers. He opined that the standards are needed now more than ever, and he said he thinks the proposed legislation would erode the authority of APSC and undermine the public trust in Alaska's law enforcement. 9:12:32 AM REPRESENTATIVE SEATON asked Mr. Schmitt if the use of suspensions would change the mission of the council. MR. SCHMITT answered that it may. He said there are other states that have suspension as part of their purview, and he said he can envision suspension being a tool for the council to use in specific cases. However, he expressed concern over turning the council into a disciplinary agency rather than just a regulatory agency. 9:14:22 AM REPRESENTATIVE PETERSEN asked if the authority to suspend might give due process more time to take place. MR. SCHMITT said he thinks that is a persuasive argument. He said most departments put the police officer on administrative leave - paid or unpaid - in order for that due process to take place, which is, in effect, a suspension. 9:15:46 AM REPRESENTATIVE P. WILSON asked Mr. Schmitt if he thinks that under HB 351, a police officer could use the fact that he/she could be suspended as an excuse to "take a chance a little bit more than normal." MR. SCHMITT said he thinks Representative P. Wilson is getting to the heart of the matter and the reason that he is uncomfortable with HB 351 in general. He said he has learned as a lieutenant that the departments with the most instances of bad behavior are usually the departments in which management has failed to take disciplinary action. He said taking firm disciplinary action is basic to the health of any organization. He agreed that the knowledge that a person could get by with just a suspension may promote bad behavior. 9:17:43 AM The committee took a brief at-ease. 9:18:37 AM JAKE METCALFE, Executive Director, Public Safety Employees Association, Inc./American Federation of State, County, Municipal Employees (PSEA/AFSCME) Local 803, stated that under 351, court service officers, which are not currently certified, would be certified. He described court services officers as: having jurisdiction within the courts, wearing a badge, carrying a gun, wearing a uniform, transporting prisoners between court houses in vehicles and on airplanes, and investigating crimes that "happen on the court house," serving warrants, and serving process. He related an incident in January when a person in custody tried to make a run for the door during a court hearing and the court services officer caught the man, arrested him, and put him into custody. He said PSEA thinks that court services officers do the type of duties that police officers do. Mr. Metcalfe pointed out that under statute, Village Public Safety Officers (VPSOs) in rural communities are certified; they do limited investigations of misdemeanor crimes, but they don't carry weapons. He said PSEA thinks that certifying court services officers would address a liability problem in the state. He said PSEA's members who are court services officers want to be certified. Mr. Metcalfe said there are three basic certification levels: basic, intermediate, and advanced. He said PSEA believes that "a certification under those areas is very possible and needed for court services officers." He compared court services officers to airport police and university police. He said PSEA sees [certification] as something that would improve policing and be good for the court system, as well as something that is long overdue. 9:22:25 AM MR. METCALF addressed the issue of suspension, which he stated PSEA thinks of as a tool. He said Representative Johansen hit the nail on the head with his comments about suspension. He said suspension would not be mandatory, but would be available to address emotional issues and could be used, for example, in response to some Class A misdemeanors instead of revoking the certification of an otherwise good police officer. He said PSEA supports the ability of APSC to certify and revoke certifications, but thinks the time has come to "modernize that" in a fair manner. He urged the committee to pass Version M. 9:24:22 AM REPRESENTATIVE JOHANSEN asked Mr. Metcalf if he believes the training for the court officers would incur cost to the state. MR. METCALF responded that any kind of training would cost money; however, he said the court services officers already get training, so it would depend on how much extra training they would be given. He mentioned the police academy in Sitka, Alaska, and said the department would be the best judge of who would need to be sent there. REPRESENTATIVE JOHANSEN questioned whether court services officers would expect an increase in pay after completing additional training. MR. METCALF said that is an issue he thinks will not be brought forth, because the court services officers have a classification that would not change; they would not be doing the same duties as police officers. In response to a follow-up question from Representative Johansen, he said it is not the intent of PSEA to respond to the increased training requirements under HB 351 by asking for the classification level of court services officers to be raised. 9:28:12 AM REPRESENTATIVE P. WILSON said she would like to know the current number of hours of training undergone by court services officers and police officers and how much the hours for court services officers would change under HB 351. MR. METCALF offered his understanding that "the basic is 400 hours," but he said he could bring the exact numbers to the next hearing. 9:28:56 AM REPRESENTATIVE SEATON said the committee heard that termination notices are sent to the council, but asked whether administrative leave or other personnel actions are sent. He said, "I'm unaware of why you would get to the level of where you would need a suspension of a license when the employer puts people on administrative leave for those kinds of reasons." 9:30:19 AM MR. METCALF responded by offering his understanding that when a person is terminating, the department sends over an F4 form, which explains the reason for the termination. He said in addition to getting notice from the department, there can be complaints filed by the public about the conduct of the police officer or APSE could read a story about the conduct of the police officer or the police officer could report him/herself. [HB 351 was held over.]