SB 81-VILLAGE PUBLIC SAFETY OFFICER GRANTS  [Contains discussion of HB 123.] 4:09:17 PM CHAIR SHOWER reconvened the meeting and announced the consideration of SENATE BILL NO. 81 "An Act requiring background investigations of village public safety officer applicants by the Department of Public Safety; relating to the village public safety officer program; and providing for an effective date." 4:09:38 PM SENATOR DONALD OLSON, Alaska State Legislature, Juneau, Alaska, sponsor of SB 81, introduced the legislation paraphrasing the sponsor statement which read: [Original punctuation provided.] This bill has been introduced to implement the nine recommendations of the joint legislative VPSO Working Group's report which was adopted on January 24, 2020. Created in the late 1970's, the Village Public Safety Officer (VPSO) program's stated purpose is to assist in the protection of "life and property" and coordinate probation and parole in rural communities. Currently, ten entities operate VPSO grants. Eight of the ten grantees are regionally based nonprofit corporations whose missions are to cultivate self- determination among local tribal citizens. One is a federally recognized tribe, and the Northwest Arctic Borough, a home rule regional government seated in Kotzebue, is the only grantee organization that is a municipal government. While the VPSO program has provided valuable service to participating areas, the past decade has seen shrinking numbers of VPSOs, significant difficulty in recruitment and retention of officers, and community needs that surpass the current duties of VPSOs. There is undoubtedly a need to address the crisis in public safety infrastructure and service in rural Alaska. On May 9th, 2019, Senate President Cathy Giessel and House Speaker Bryce Edgmon announced the creation of a Joint House/Senate Working Group to provide substantive policy recommendations related to the VPSO program. Appointed to the working group were: Senator Donny Olson, Co-Chair; Representative Chuck Kopp, Co-Chair; Senator Click Bishop; Senator Mike Shower; Representative Bryce Edgmon; and Representative George Rauscher. The working group was assigned to coordinate with stakeholders to examine the underlying causes of the recruitment and retention obstacle and provide proposals to turn around the epidemic rate of personnel turnover within the VPSO program. The working group held meetings, attended community meetings, participated in listening sessions, and worked with stakeholders to arrive at the proposals outlined in this report. The proposals primarily address the core problem of increasing the number of VPSO's available to communities. The bill incorporates the Working Group's nine short term recommendations: [The sponsor's staff read the nine recommendations.] SENATOR OLSON clarified that CSSB 81(CRA), version I, incorporates eight of the nine short term recommendations from the VPSO working group. Recommendation six was deemed unnecessary and was removed thanks to exemplary cooperation between the Department of Public Safety (DPS) and the VPSO coordinators. 4:12:25 PM BRIX HAHN, Staff, Senator Donald Olson, Alaska State Legislature, Juneau, Alaska, stated that SB 81 implements eight of the nine recommendations from the joint legislative Village Public Safety Officer (VPSO) Working Group report that was adopted January 24, 2020. She read the recommendations. Recommendation 1. Update the VPSO statutes to provide a clear law enforcement and public safety vision and mission for the program and provide VPSO personnel clear law enforcement duties and powers. Recommendation 2. Create more financial flexibility for the VPSO grantee organizations in the updated VPSO statutes. Recommendation 3. Restore VPSO funding levels to FY18 levels. Recommendation 4. Fund unfunded mandates. Recommendation 5. Related to Recommendation 4, in an updated VPSO statute, mandate that grant awards pay grantee organization their full indirect costs. Recommendation 6. Move financial grant management to the Department of Commerce, Community, and Economic Development. MS. HAWN highlighted that the previous committee of referral removed Recommendation 6 and credited the good working relationship between the Department of Public Safety (DPS) and the VPSO coordinators. Recommendation 7. Maintain operational advisory, training, and experience requirement oversight at the Department of Public Safety. Recommendation 8. In statute create a Tribal/Grantee organization consultation process before the Department can change training and experience requirements. Recommendation 9. Revised versions (consistent with the recommendations of the Working Group report) of current VPSO regulations need to be placed in statute in order to operationalize the VPSO program and to facilitate the grant management moving to the Department of Commerce. 4:14:15 PM MS. HAHN reviewed the changes between version A and version I of SB 81. She explained that version I maintains VPSO grant management within the Department of Public Safety. All references to the Department of Commerce, Community and Economic Development (DCCED) were removed. The change that requires the bill to be renumbered starts with Section 5. In version A that proposed amending DCCED's enabling statute to add the VPSO program as a grant it had the authority to administer. That section was removed and the remaining sections of the bill were renumbered. 4:14:51 PM MS. HAHN paraphrased the sectional analysis for SB 81. Section 1 (pages 1-3) Amends AS 12.62.400 regarding criminal history background checks and adds VPSO program personnel as a program the Department of Public Safety is authorized to secure background checks via the Federal Bureau of Investigation. The substantive change occurs on page 3, line 21. Section 2 (page 3) Related to Section 1, Amends AS 18.65.080, one of the Department of Public Safety's enabling statutes. The amendment requires that the Department secure the background checks for VPSO program personnel. Sections 1 and 2 implement Recommendation 2 regarding creating more financial flexibility for the program. At one point the Department of Public Safety (DPS) was conducting background checks for the VPSO program then unilaterally stopped with no notice the grantee organizations. Sections 1 and 2 together make it clear that background checks are a DPS function for the VPSO program. Section 3 (pages 4-7) In current statute the VPSO program has only one statute, AS 18.65.670. Section 3 proposes to repeal and reenact the statute and add multiple new subsections. Subsection (a) has been rewritten to conform to the current Legislative Drafting Manual and because a new statute is proposed in Bill Section 4, AS 18.65.686, that updates VPSO duties and powers. Subsection (b) is identical to existing (b), except the last sentence of existing (b) is not included as it was deemed unnecessary. Subsection (c) is new and is the statutory codification of current DPS regulation 13 AAC 96.020. This implements Recommendation 9. Subsection (d) is new and is the statutory codification of current DPS regulation 13 AAC 96.030 with changes that remove the prohibition of existing 13 AAC 96.030(2) that prevents the payment of bonuses from other non-VPSO grant revenue sources. Also removed is the requirement that grantees indemnify the state. These changes implement Recommendations, 2, 4, and 9. Subsection (e) is new and is the partial statutory codification of current DPS regulations 13 AAC 96.040, specifically, (a)(2). This subsection sets the overall policy that one VPSO is generally assigned to one village unless the grantee organization requests additional VPSO personnel per village. The changes reflect a more neutral and less harsh tone than the language from the regulation. Subsection (f) is new and allows for traveling or "roving" VPSO personnel who are permitted to itinerate between villages within a grantee's region as public safety needs arise. These changes implement Recommendations 1, 2, and 9. Subsection (g) is new and is the partial statutory codification of current DPS regulations 13 AAC 96.040. New (g) contains grant award record keeping requirements and other grant management requirements. These changes implement Recommendations 1, 2, and 9. Subsection (h) contains new regulation adopting authority for the DPS commissioner, subject to the new consultation requirements of new (l) of this bill section. These changes implement Recommendations 1, 2, and 8. Subsection (i) allows for funding grantee organizations' indirect rates up to a statewide average of 35%. This language has been used as intent language in multiple prior operating budget bills. These changes partially implement Recommendations 2, 4-5. Subsection (j) is new and provides explicit instruction to the commissioner on grant fund disbursement. Specifically, that grant funds can be used for items reasonably related to public safety and VPSO duties as codified in this bill. Further, grant fund disbursement is to be timely and funding request are not to be unreasonably withheld. These changes partially implement Recommendation 2. Subsections (k) and (l) are related to new (i) and provides for a consultation and negotiated rule-making process for when any of the state agencies involved with the VPSO program exercise their regulation adopting authority. These changes implement Recommendation 8. MS. HAWN noted that the forgoing formalizes the existing cooperative process between VPSO coordinators and DPS to jointly make decisions about how the program works. Section 4 (pages 8-14) Creates new statutes: AS 18.65.672 is the statutory codification of current DPS regulation 13 AAC 96.080 dealing with VPSO qualification requirements. These changes implement Recommendation 9. AS 18.65.674 is the statutory codification of current DPS regulation 13 AAC 96.090 dealing with VPSO background checks. These changes implement Recommendation 9. AS 18.65.676 is the statutory codification of current DPS regulation 13 AAC 96.100 dealing with VPSO training requirements. These changes implement Recommendations 1 and 9. AS 18.65.678 is the statutory codification of current DPS regulations 13 AAC 96.040(b)(8) and 13 AAC 96.100 dealing with VPSO firearm training requirements. These changes implement Recommendations 9. AS 18 65.682 is the statutory codification of current DPS regulation 13 AAC 96.110 dealing with VPSO certification. These changes implement Recommendations 9. AS 18.65.684 is the statutory codification of current DPS regulation 13 AAC 96.120 dealing with the denial, revocation, or lapse of a VPSO certificate. These changes implement Recommendations 9. AS 18.65.686 contains the duties and functions that VPSO personnel are currently performing but are not codified in the existing statute. This implements Recommendation 1. AS 18.65.688 is a definitional section to deal with various terms used throughout the new statutory sections. Section 5 (page 14) Creates in the uncodified law a standard grandfather provision for existing VPSO personnel who may have been certified under different training requirements than what is provided for in this bill. Section 6 (page 14) Creates in the uncodified law a requirement that DPS continue its current level of interaction between itself and the VPSO personnel. That requirement is codified in current VPSO statute AS 18.65.670(c) with the language relating to DPS regulation authority extending to "the interaction between the Department of Public Safety and village public safety officers." This requirement is maintained by bill section 3(i) which uses the exact wording regarding DPS regulation authority. Section 7 (page 14) Is an effective date provision and provides that the subsections (b) (g) of repealed and reenacted AS 18.65.670 become effective on July 1, 2020. These subsections are proposed codifications and modifications of current department regulations. This will allow the department time to take action to make the department regulations consistent with the new provisions of statute enacted by this bill. Section 8 (page 14). Provides that all other sections of the bill have an immediate effective date.  4:22:14 PM SENATOR OLSON stated that while the bill appears to be complicated, it only contains the recommendations the working group decided on. CHAIR SHOWER expressed appreciation for the bill. SENATOR REINBOLD recalled a VPSO bill when she was in the House that was purported to decrease law enforcement costs. She asked for the current wages for Village Public Safety Officers and Alaska State Troopers. SENATOR OLSON replied the pay scale for VPSOs is roughly $58,000 per year whereas Alaska State Troopers earn in excess of six figures. CHAIR SHOWER noted that the expert testimony could also speak to salaries. SENATOR REINBOLD said this is important because trooper costs are more than just the salary. She asked for an explanation of the 30 percent for administrative cost and asked what happens to the money when positions are unfilled. SENATOR OLSON deferred the question about administrative costs to the invited testimony. SENATOR REINBOLD asked what happens to the money when positions are not filled. SENATOR OLSON replied the funds are held within DPS. 4:26:33 PM JAMES COCKRELL, Commissioner, Department of Public Safety (DPS), Anchorage, Alaska, stated that DPS supports the VPSO program as a key component of its overall mission. The department has worked with both Senator Olson, Representative Patkotak and other legislators to develop a bill that will allow the VPSO program to grow and provide flexibility for communities, villages, and tribes to decide on the direction of the program. 4:27:35 PM CHAIR SHOWER asked if he had an opinion on the bill and if he foresaw any problems. COMMISSIONER COCKRELL stated that DPS supports SB 81 and any amendments the sponsor may put forward. The department is comfortable with the direction the bill is going. SENATOR OLSON said he would also like to hear from Kelly Howell. SENATOR REINBOLD expressed concern about political activism and asked if tribal courts have to follow state statutes. COMMISSIONER COCKRELL explained that most cases that a VPSO or a trooper handles will go through state court. However, the department does have civil diversion agreements with some tribes to take minor cases to tribal court. He said he supports allowing tribal courts to address lesser crimes and keep a member of a tribe from potentially getting a criminal record for a minor, non-person offense. Aside from the Indian Reserve on Metlakatla, felony cases go through state court. CHAIR SHOWER asked who has jurisdiction over a non-tribal member who is charged with committing a crime on tribal land and whether that person would have the right to appeal their sentence to a state court. He also asked if the reverse would apply for a tribal member. 4:32:39 PM COMMISSIONER COCKRELL replied DPS recognizes tribal criminal complaints and those can be taken to state court, although that does not apply to banishment because state courts do not recognize that penalty. He added that there is not a one-size- fits-all way of dealing with tribes in Alaska; troopers are more actively involved with tribes in some areas and certain tribal courts are more vibrant than others. He also briefly mentioned the concept of Circles that is something less than a tribal court that only hears minor adult cases and imposes penalties. CHAIR SHOWER asked Joel Hard if he had anything to add. 4:34:54 PM JOEL HARD, Director of Operations, Village Public Safety Officer program, Department of Public Safety, Anchorage, Alaska, explained that jurisdiction is primarily based on membership, not geography. However, the state always has concurrent jurisdiction so there is always a decision about the direction the case goes. CHAIR SHOWER asked who makes the decision and whether the individual is able to appeal. MR. HARD replied the actions in tribal court are directed toward tribal members but he didn't know how it works for non-tribal members. SENATOR REINBOLD said she wants all domestic violence and sexual assault cases to go to state court to ensure they are not silenced or ignored. She mentioned HB 123 and offered her belief that recognition is one thing, but sovereignty for the 229 tribes in Alaska is a different matter. COMMISSIONER COCKRELL said all domestic violence and sexual assault cases go to state court. The state isn't relinquishing its authority to allow minor crimes to be adjudicated in tribal court where the penalties might be gathering firewood or catching fish for an elder, but recognizes that tribes have their own system of justice for minor crimes committed within the tribe's jurisdiction and their culture plays a part. CHAIR SHOWER said he believes the state needs to figure out a consistent standard of justice because there could be complications if each of the 229 tribes has a different standard. COMMISSIONER COCKRELL said the heart of the matter is that the state has never provided an adequate law enforcement presence in the villages, and in that absence the federal government and the tribes have filled the void. He noted there were bills in Congress now to provide flexibility and autonomy for the [federally recognized] tribes in Alaska. We have only ourselves to blame, he said, because the state hasn't provided the support the tribes have needed since statehood. CHAIR SHOWER said he appreciates the honesty and self- assessment. SENATOR REINBOLD said she has no problem with someone being a member of a tribe. However, if tribes want sovereignty over all affairs, she wonders whether tribal members would have to follow state and federal laws. 4:42:42 PM COMMISSIONER COCKRELL responded that everyone is bound by state law and the State of Alaska is responsible for providing law enforcement in all jurisdictions. He noted that the Metlakatla Indian Reserve is an exception. CHAIR SHOWER noted that the sponsor had something to add. 4:43:34 PM SENATOR OLSON explained that the word sovereignty means different things depending on the context. The sovereignty of tribes comes from the federal treaty that talks about government-to-government interactions. That does not mean that a tribe could challenge either the state or U.S. governments. Tribes are subservient to both authorities with the hierarchy being the federal government first, state government second, and the tribal authorities below that. SENATOR REINBOLD asked how a sovereign nation differs from a recognized nation and whether a sovereign nation supersedes anything. SENATOR OLSON said he was not an expert and would rather not get caught up in semantics and the issue of sovereignty. It's an important issue, but SB 81 is about getting public safety in all communities. He highlighted that there are no VPSOs in the Kotzebue region and Bethel has just three of about 43 positions filled. CHAIR SHOWER called his former staff, Terrence Shanigan, to respond to the questions about the PL 280 authority [jurisdiction in criminal cases], the different meanings of sovereignty, and the 30 percent administrative cost. 4:47:12 PM TARENCE SHANIGAN, representing self, Anchorage, Alaska, stated that SB 81 is only loosely affiliated to tribal sovereignty and tribal recognition. To Senator Reinbold's mention of HB 123 and statement about tribes potentially becoming sovereign, he clarified that Congress recognized most tribes as sovereign between 1934 and 1941. HB 123 is simply stating that fact and asking the state to acknowledge it. He stressed that neither HB 123 nor SB 81 asks for anything new or any new authority for tribes. MR. SHANIGAN noted that Commissioner Cockrell alluded to the significant differences between how tribes, except for Metlakatla, operate in terms of their relationship with the state and the state's authority. He said there are four sovereigns in Alaska and all four are identified in the U.S. Constitution. These are the federal government, the state government, tribes, and individuals. The 229 tribes in Alaska are all sovereigns and their authorities are limited based on Public Law (PL) 280 that Congress passed in the 1950s. This law ceded criminal jurisdiction to the state. MR. SHANIGAN referenced Senator Reinbold's question about administrative costs of 30 percent and explained that Governor Parnell removed the 15 percent cap on an organization's cost to administer for the VPSO program because it's expensive to operate in rural Alaska and organizations often exceeded the cap. He noted that in some areas the expenses ran as high as 40 percent but the average has been about 28.5 percent. CHAIR SHOWER asked Senator Reinbold if she had a follow-up. 4:51:20 PM SENATOR REINBOLD asked 1) if he was a member of a tribe; 2) where it says tribes are sovereign; 3) what sovereign means to him; 4) whether he sees any potential for conflict; and 5) if he intended to put tribes before individuals [when he mentioned the hierarchy of sovereignty in Alaska]. MR. SHANIGAN replied 1) he is a member of a tribe; 2) Article I, Section 8 of the U.S. Constitution recognizes the sovereign nature of tribes; 3) he is not a legal expert but federal documents and law reference tribal sovereignty; and 4) Alaska is one of several states governed by Public Law 280 rather than the reservation system where the federal government has more control and authority. In PL 280 states there is a lot more cross jurisdictional interaction and the state has far more authority than if there were reservations. Tribal courts in Alaska have specific limits because of PL 280. SENATOR REINBOLD said she found the following in Article I, Section 8: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. She acknowledged that he said the courts have recognized tribal sovereignty, but she needed somebody to show where the U.S. Constitution says tribes are sovereign. She noted she had not found that in the Constitution of the State of Alaska or state statute either. She reiterated her ongoing concern about the term sovereignty and unintended consequences. She added that she does support the VPSO program, law enforcement in communities, and more law enforcement in the Bush. MR. SHANIGAN said he would follow up and bring legal experts to speak to the matter, but tribal sovereignty is well known as a fact in the Alaska Native and American Indian communities. Nothing about tribal sovereignty would change tomorrow if HB 123 were to pass today. The bill simply states the fact that tribes in Alaska are sovereign. However, because Alaska has never acknowledged the federal recognition and sovereignty of tribes, it makes conversations about SB 81 and other bills difficult. CHAIR SHOWER asked him to provide the legal opinions in written form and he would share them with the members and enter them into the record. He asked the sponsor if he had any comments before he turned to invited testimony. SENATOR OLSON commented on the ongoing and circular nature of the conversations about sovereignty. CHAIR SHOWER turned to invited testimony. 4:57:38 PM MICHAEL NEMETH, VPSO Program Coordinator, Aleutian Pribilof Island Association, Anchorage, Alaska, testified in support of SB 81. He related that this will be his 20th year as a Village Public Safety Officer. He stated that there is broad agreement that the public safety needs of Alaskans are paramount and all discussions about the VPSO program should begin with the recognition that keeping Alaska's communities safe is the highest priority. There is also agreement that the VPSO program is in need of change to better serve Alaskans. He said he never viewed the program as failed or broken, but as distressed due to different management styles and varying levels of support over the last decade. He expressed hope that the non-controversial solution put forward in SB 81 could pass both bodies this session. 4:59:04 PM CAROL PISCOYA, Vice President, Community Services Division, Kawerak Incorporation, Nome, Alaska, testified in support of SB 81. She reported that Kawerak administers the VPSO program in the Bering Strait region and is providing service to six of 15 communities. The reason that nine of the 15 communities do not have any law enforcement is due to recruitment problems, and the lack of adequate infrastructure to support VPSO programs is an additional barrier to recruitment. She emphasized the need to address the crisis in public safety infrastructure and service in rural Alaska and expressed optimism about the renewed sense of urgency and collaboration with the current Public Safety commissioner. She urged the committee to pass SB 81 saying it will provide the building blocks for regulation changes that will allow the VPSO program to flourish and provide excellent public safety services to Alaskans. 5:01:04 PM CHAIR SHOWER opened public testimony on SB 81; finding none, he closed public testimony. CHAIR SHOWER mentioned an amendment. 5:01:57 PM At ease 5:08:48 PM CHAIR SHOWER reconvened the meeting and explained that the committee was talking about how to address the two pages of suggested amendments that his staff had distributed. He acknowledged that some members were not comfortable with the speed the bill was moving and the fact that the suggested amendments had not been drafted by Legislative Legal Services. He said there were two options, 1) to work through the suggested changes or 2) to accept the bill and have the sponsor state on the record that he would accept the suggested changes exactly as is and take that to the finance committee. This committee could then watch to see that all the changes were added appropriately. He acknowledged that the first option was not viable because the committee was out of time today. He asked the members to comment on the viability of the second option. SENATOR OLSON asked if he could comment on the proposed amendments. CHAIR SHOWER suggested he wait until the committee members had a chance to weigh in. SENATOR REINBOLD stated that the VPSO program is important and she supports public safety, but she was a little uncomfortable moving the bill forward today. She added, "I'm glad we're moving the amendment. I'm going to trust your word on dealing with that amendment in the next finance committee." She also requested that courtesies be extended to all members who bring issues forward that they deem particularly important. She said she was willing to make the motion. CHAIR SHOWER said Senator Reinbold's request should be heard and acknowledged. He stated that he was comfortable moving the bill but he would respect the wishes of the committee. 5:12:50 PM SENATOR KAWASAKI commented that he had tracked this issue for many years and was happy to have the bill move forward because it had a long way to go. He offered to make the motion. 5:13:41 PM SENATOR OLSON said he appreciated the committee considering the bill and he would commit to take the rough draft of amendments to Legislative Legal Services and present that to the next committee of referral. He added that he would give a copy to the chair so the committee could look at whether or not the intent of the amendments came through. SENATOR REINBOLD said she has always supported the VPSO program but she did not want any unintended consequences related to the issue of sovereignty. CHAIR SHOWER restated that while he was comfortable with the bill, he was willing to slow down if that was the will of the committee. 5:17:12 PM SENATOR REIBOLD moved to report CSSB 82, work order 32-LS0362\I, from committee with individual recommendations and attached fiscal note(s) plus accompanying documents and recommended conceptual amendments to the next committee of referral and authorization for legislative legal to make needed technical and conforming changes. CHAIR SHOWER asked Senator Reinbold to restate the motion without the recommended conceptual amendments. 5:17:57 PM SENATOR REINBOLD moved to report CSSB 82, work order 32- LS0362\I, from committee with individual recommendations and attached fiscal note(s). CHAIR SHOWER found no objection and CSSB 81(CRA) was reported from the Senate State Affairs Standing Committee.