HOUSE JUDICIARY STANDING COMMITTEE March 20, 2000 1:20 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT Representative Lisa Murkowski COMMITTEE CALENDAR HOUSE BILL NO. 253 "An Act establishing a school disciplinary and safety program; and providing for an effective date." - MOVED CSHB 253(JUD) OUT OF COMMITTEE HOUSE BILL NO. 233 "An Act granting authority to each municipality to be a debtor under 11 U.S.C. (Federal Bankruptcy Act) and to take any appropriate action authorized by federal law relating to bankruptcy of a municipality." - MOVED CSHB 233(CRA) OUT OF COMMITTEE HOUSE JOINT RESOLUTION NO. 35 Relating to requesting the United States Congress to repeal the "Brady Handgun Protection Act". - MOVED HJR 35 OUT OF COMMITTEE HOUSE JOINT RESOLUTION NO. 53 Proposing amendments to the Constitution of the State of Alaska relating to a preference for taking wildlife for human consumption. - HEARD AND HELD HOUSE JOINT RESOLUTION NO. 47 Proposing amendments to the Constitution of the State of Alaska relating to the permanent fund and to payments to certain state residents from the permanent fund. - MOVED HJR 47 OUT OF COMMITTEE PREVIOUS ACTION BILL: HB 253 SHORT TITLE: SCHOOL DISCIPLINARY AND SAFETY PROGRAM Jrn-Date Jrn-Page Action 5/19/99 1653 (H) READ THE FIRST TIME - REFERRAL(S) 5/19/99 1653 (H) HES 1/18/00 (H) HES AT 3:00 PM CAPITOL 106 1/18/00 (H) Heard & Held 1/18/00 (H) MINUTE(HES) 1/20/00 (H) HES AT 3:00 PM CAPITOL 106 1/20/00 (H) Moved CSHB 253(HES) Out of Committee 1/20/00 (H) MINUTE(HES) 1/21/00 1951 (H) HES RPT CS(HES) NT 4DP 1/21/00 1952 (H) DP: GREEN, DYSON, COGHILL, WHITAKER 1/21/00 1952 (H) ZERO FISCAL NOTE (DOE) 1/21/00 1952 (H) JUD REFERRAL ADDED AFTER HES 1/21/00 1952 (H) REFERRED TO JUDICIARY 1/21/00 1976 (H) COSPONSOR(S): WHITAKER 2/02/00 (H) JUD AT 1:00 PM CAPITOL 120 2/02/00 (H) Heard & Held 2/02/00 (H) MINUTE(JUD) 2/02/00 (H) MINUTE(JUD) 2/07/00 (H) JUD AT 1:00 PM CAPITOL 120 2/07/00 (H) Heard & Held 2/07/00 (H) MINUTE(JUD) 3/17/00 (H) JUD AT 1:30 PM CAPITOL 120 3/17/00 (H) Scheduled But Not Heard 3/20/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 233 SHORT TITLE: MUNICIPAL BANKRUPTCY Jrn-Date Jrn-Page Action 5/12/99 1340 (H) READ THE FIRST TIME - REFERRAL(S) 5/12/99 1340 (H) CRA, JUD 2/01/00 (H) CRA AT 8:00 AM CAPITOL 124 2/01/00 (H) Heard & Held 2/01/00 (H) MINUTE(CRA) 2/03/00 (H) CRA AT 8:00 AM CAPITOL 124 2/03/00 (H) Moved CSHB 233(CRA) Out of Committee 2/03/00 (H) MINUTE(CRA) 2/04/00 2086 (H) CRA RPT CS(CRA) NT 5DP 1NR 2/04/00 2087 (H) DP: MURKOWSKI, HALCRO, JOULE, 2/04/00 2087 (H) HARRIS, KOOKESH; NR: DYSON 2/04/00 2087 (H) ZERO FISCAL NOTE (H.CRA) 2/18/00 (H) JUD AT 1:00 PM CAPITOL 120 2/18/00 (H) Heard & Held 2/18/00 (H) MINUTE(JUD) 3/20/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 35 SHORT TITLE: REPEAL BRADY ACT Jrn-Date Jrn-Page Action 3/31/99 624 (H) READ THE FIRST TIME - REFERRAL(S) 3/31/99 624 (H) WTR, JUD 5/18/99 1638 (H) COSPONSOR(S): KOHRING 1/26/00 2018 (H) COSPONSOR(S): SANDERS 2/15/00 (H) WTR AT 5:00 PM CAPITOL 124 2/15/00 (H) -- Meeting Postponed to 2/22/00 -- 2/22/00 (H) WTR AT 5:00 PM CAPITOL 124 2/22/00 (H) Moved Out of Committee 2/22/00 (H) MINUTE(WTR) 2/23/00 2275 (H) WTR RPT 4DP 2NR 2/23/00 2276 (H) DP: MASEK, GREEN, BARNES, COWDERY; 2/23/00 2276 (H) NR: PHILLIPS, JOULE 2/23/00 2276 (H) ZERO FISCAL NOTE (H.WTR) 2/23/00 2288 (H) COSPONSOR(S): MASEK 3/06/00 (H) JUD AT 2:15 PM CAPITOL 120 3/06/00 (H) Heard & Held 3/06/00 (H) MINUTE(JUD) 3/20/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 53 SHORT TITLE: CONST AM: WILD FOOD RESOURCES Jrn-Date Jrn-Page Action 2/07/00 2114 (H) READ THE FIRST TIME - REFERRALS 2/07/00 2115 (H) RES, JUD, FIN 2/09/00 2155 (H) COSPONSOR(S): DYSON 2/21/00 2259 (H) COSPONSOR(S): HARRIS 2/28/00 (H) RES AT 1:00 PM CAPITOL 124 2/28/00 (H) Moved CSHJR 53(RES) Out of Committee 2/28/00 (H) MINUTE(RES) 3/01/00 2352 (H) RES RPT CS(RES) NT 5DP 2NR 2AM 3/01/00 2352 (H) DP: COWDERY, BARNES, MORGAN, WHITAKER, 3/01/00 2352 (H) MASEK; NR: JOULE, KAPSNER; AM: HARRIS, 3/01/00 2352 (H) HUDSON 3/01/00 2352 (H) FISCAL NOTE (GOV) 3/01/00 2352 (H) REFERRED TO JUDICIARY 3/20/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 47 SHORT TITLE: CONST AM: PERMANENT FUND Jrn-Date Jrn-Page Action 1/24/00 1986 (H) READ THE FIRST TIME - REFERRALS 1/24/00 1986 (H) JUD, FIN 3/01/00 (H) JUD AT 1:00 PM CAPITOL 120 3/01/00 (H) Heard & Held 3/01/00 (H) MINUTE(JUD) 3/20/00 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER WES KELLER, Staff to Representative Dyson Alaska State Legislature Capitol Building, Room 104 Juneau, Alaska 99801 POSITION STATEMENT: Provided information on HB 253. JOHN CYR, President National Education Association - Alaska 114 Second Street Juneau, Alaska 99801 POSITION STATEMENT: Testified on HB 253. CARL ROSE, Executive Director Association of Alaska School Boards 318 West Eleventh Street Juneau, Alaska 99801 POSITION STATEMENT: Testified on HB 253. JONATHON LACK, Staff to Representative Halcro Alaska State Legislature Capitol Building, Room 418 Juneau, Alaska 99801 POSITION STATEMENT: Presented information on HB 233. RYNNIEVA MOSS, Staff to Representative Coghill Alaska State Legislature Capitol Building, Room 416 Juneau, Alaska 99801 POSITION STATEMENT: Presented information on HJR 35. EDDIE GRASSER, Staff to Representative Masek Alaska State Legislature Capitol Building, Room 128 Juneau, Alaska 99801 POSITION STATEMENT: Presented HJR 53, Version I, and answered questions. REPRESENTATIVE GARY DAVIS Alaska State Legislature Capitol Building, Room 513 Juneau, Alaska 99801 POSITION STATEMENT: Sponsor of HJR 47. SENATOR JERRY MACKIE Alaska State Legislature Capitol Building, Room 427 Juneau, Alaska 99801 POSITION STATEMENT: As sponsor of SJR 33, companion resolution, testified on HJR 47 and answered questions. ACTION NARRATIVE TAPE 00-33, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:20 p.m. Members present at the call to order were Representatives Kott, Green, Rokeberg, Croft and Kerttula. Representative James arrived as the meeting was in progress. HB 253 - SCHOOL DISCIPLINARY AND SAFETY PROGRAM Number 0046 CHAIRMAN KOTT announced that the first order of business would be HOUSE BILL NO. 253, "An Act establishing a school disciplinary and safety program; and providing for an effective date." He clarified that there was a new proposed committee substitute (CS), Version S, before the committee. Number 0057 REPRESENTATIVE ROKEBERG moved to adopt the proposed CS for HB 253, version 1-LS0559\S, Ford, 3/17/00, as the working document before the committee. There being no objection, it was so ordered and Version S was before the committee. REPRESENTATIVE FRED DYSON, Alaska State Legislature, testified as sponsor of HB 253. He reviewed those portions of HB 253 that had been revised. Representative Dyson said three changes had been made, which he thinks make the bill better. The first change is on page 2, line 8 and following, which now very clearly specifies that each school is to go through the process of getting community input on behavior and safety standards. However, he said, it is the responsibility of the school board or the governing body to make the policy, and the board/governing body has the option of "totally homogenizing everything," or, in a big district, having some variation among the schools. REPRESENTATIVE DYSON said the second change is on page 2, lines 25- 29. On that revision, the sponsor and staff had worked with many people from the disabilities community. Their concern was that the bill not inadvertently facilitate discrimination against children with disabilities. The third change, on page 3, line 22, addresses concern about how teachers conduct themselves. All it says is that they are going to do it consistent with existing standards of the Professional Teaching Practices Commission (PTPC). Number 0348 CHAIRMAN KOTT noted that on page 3, line 20, the penalty having to do with violations has been lessened. REPRESENTATIVE DYSON confirmed that the penalty had been reduced from a misdemeanor to a violation. Number 0364 REPRESENTATIVE ROKEBERG asked if the new version of CSHB 253 had been reviewed by the Anchorage School District and the Alaska Association of School Administrators, and, if so, whether those groups had changed their opinion of the bill. REPRESENTATIVE DYSON said the new version of HB 253 [Version S] has been provided to both groups but neither has responded to it. Those making the revisions have been working with those two groups and have addressed their concerns, he said, "but in 30-some years, I have never had the Anchorage School District agree with me about anything." Number 0428 REPRESENTATIVE CROFT raised the issue of reducing from a class A misdemeanor [the penalty for] the kind of conduct HB 253 was defining for the school board. He said he thought the committee had been moving in the direction of narrowing the scope of the crime and keeping it a misdemeanor. Now, he said, it appears they have reduced the penalty but kept the scope of the crime the same. REPRESENTATIVE DYSON concurred with that observation. REPRESENTATIVE CROFT wondered why that was a better solution than the previous one. Number 0484 WES KELLER, Staff to Representative Dyson, Alaska State Legislature, said that the revision was the result of a compromise with the House Judiciary Committee. Number 0507 REPRESENTATIVE CROFT said he wanted to understand what goes on in a disciplinary hearing, especially relating to what was a misdemeanor and is now a violation. Page 3, subsection (c), says it is a violation if "the member of the governing body of a school district knowingly allows a teacher or others to be terminated or punished." If the school board member allows a teacher to be punished in violation of subsection (a), which says a teacher may not be punished for enforcing the standard, his question is: On legitimate disagreements, how is that dealt with under "knowingly"? He continued: If I'm a school board member and I think they have exceeded the disciplinary plan, the teacher obviously thinks they were enforcing the disciplinary plan; I vote to sanction them in some way, and later a court determines that the conduct of the teacher was appropriate. Did I commit a violation or did I have to know at the time that they were enforcing the plan, and know I was punishing them for that? Number 0610 REPRESENTATIVE DYSON explained: What we're after is knowingly using your position as a school board member or administration member to punish somebody who was doing the right thing. You knew that they were doing the right thing, you didn't like it, and you used your position to punish a teacher who was acting in conformance with the district standards and good professional conduct; you want to "jerk his chain" because you didn't like what he did. You have to know he was doing the right thing, and you have to knowingly go after punishing him for doing the right thing. REPRESENTATIVE CROFT said he thinks it is important to have that on the record. It is difficult to write, so he appreciates the clarification. CHAIRMAN KOTT said that is his understanding as well of where this is heading. Number 0677 REPRESENTATIVE ROKEBERG asked whether the previous draft of HB 253 had said "felony." REPRESENTATIVE CROFT and CHAIRMAN KOTT clarified that it had referred to a class A misdemeanor. Number 0701 REPRESENTATIVE ROKEBERG said a class A misdemeanor is a typical occupational licensing penalty, which gives more grit and enforceability [than does a violation]. It seems like nowadays, the pocketbook is more important than some little slap on the hand. He asked, "Did you consider some type of treble damage civil action as opposed to this?" Number 0730 REPRESENTATIVE DYSON said that was how he originally thought it should be done, "to hit them in the pocketbook." But he had not been successful in convincing legislative counsel of that; that was who had said it ought to be a misdemeanor, consistent with other licensing type, professional-conduct type violations. "And if there is a better way, I'm into it," Representative Dyson added. Number 0789 REPRESENTATIVE ROKEBERG said he would defer to the legal experts. He added that "it seems like the civil remedy is much broader and fuzzier, and the criminal remedy is going to be clearer." Number 0805 REPRESENTATIVE DYSON pointed out that if legal action were brought against a school administrator, the board probably would pay the money out of district funds, so it might be less daunting than the idea of spending time in jail, judging by the reaction of his own school board. Number 0875 CHAIRMAN KOTT emphasized that he did not want to go too far and make HB 253 an "attorney employment Act." If one were to go beyond the scope of a violation, there would be substantial opportunity for litigation to occur, not only on behalf of the affected or harmed teacher but on behalf of the district as well. "In a time of limited resources, if we can avoid that, we should probably make that attempt," he added. He noted that a violation carries with it a maximum fine of $300. Number 0930 REPRESENTATIVE ROKEBERG responded that a violation seems like a slap on the hand, a speeding ticket. But this [violation] would not preclude the teacher from bringing a civil action. Number 0984 REPRESENTATIVE DYSON replied: Even as demonstrably insensitive as I am, I can hang around a school for a couple of days and tell you whether the administration is backing up the teachers and whether the teachers feel confident they will be backed up when they enforce reasonable behavior and safety standards. That is always management's job: to back up the employees. Treat them like professionals, train them well, and have them doing the right things in the right way, and then back them up. When you don't, you have morale problems, and it gets difficult in the classroom. If the teachers know that when the right angry parent comes in, the administration is going to fold up like a tent in a windstorm and steal away, then the teachers are really going to struggle. We're trying to protect the teachers who do the right thing and follow the previously agreed-upon standards and do it in the right way, and I think it's worth doing. Number 1081 REPRESENTATIVE KERTTULA said she appreciated the sponsor's work on the bill. Then she said she assumed it would not apply to a teacher who enforced the discipline standards improperly, in a way inconsistent with PTPC policy. Number 1106 REPRESENTATIVE DYSON said that was correct. CHAIRMAN KOTT asked if there were other questions for the bill's sponsor or his staff. There were none. He noted that Representative James had joined the committee and Representative Dyson was excused to testify at a concurrent committee meeting. Number 1149 JOHN CYR, President, National Education Association - Alaska (NEA- AK), thanked Representative Dyson for sponsoring HB 253. He noted that it has been a long struggle. He applauded the work the committee has done on page 2 in allaying the fears of those who have children with special needs. However, he had questions about some of the changes on page 3. MR. CYR called attention to AS 14.33.130, subsection (c), where it used to say "misdemeanor" and now says "violation." Then a new subsection (d) has been added, he noted. What has been done, as he understands it, is to reduce the level to which a school board member can be charged, but on the other hand, to add a section in which teachers who may inconsistently do something [related to] discipline and safety can lose their license to teach, can lose their livelihood forever through the PTPC. That appeared to him to be inconsistent, "if we are building this to help teachers." MR. CYR told members he would be the first to admit that the way the system works now, everything that [teachers] do is governed by the PTPC. He elaborated: We have an ethical standard to uphold, and we do, and I want that. Certainly, every teacher ought to follow that. But does adding this language in subsection (d) take away those safeguards that we have under contract and in other places for fair evaluations? Can a school board member or administrator come in and say, "Well, we have this bill and I believe that you have not done this consistently, and so I'm sending your name in to PTPC," and bypass those systems that we already have in place? MR. CYR explained that he would like to see subsection (d) removed because he believes that it already is in place "for everything we do in the classroom." To put it in this bill at this time raises some questions in his mind about how that balances. Other than that concern, NEA-AK is very pleased. Number 1324 CHAIRMAN KOTT said he, too, is concerned that the administrators are now [under subsection (d)] being given an additional tool to come down hard on the teachers for not enforcing, and that there is not a little bit of discretion left to the teachers. On the other hand, he asked, aren't they now enforcing the safety and disciplinary programs that the schools are setting up? And if not, wouldn't there be some other remedy that could be taken against those teachers who for some reason decided not to enforce the disciplinary standards? Number 1360 MR. CYR replied, "Absolutely." Every teacher in every classroom falls under the PTPC, he said. "But basically, if I'm not enforcing classroom standards and I don't have discipline in my classroom, there is an obligation there for the administrator to come in to evaluate, to put me on a plan of improvement to make sure that those things happen." Mr. Cyr referred to past discussions about how the evaluation procedure works. He said it works exactly the same way in relation to discipline. That system is built in already, which is why he questions whether subsection (d) is needed. Number 1320 CHAIRMAN KOTT asked whether the tenure evaluation process includes mechanisms that address how well a teacher ensures that there are discipline and safety in the classroom. MR. CYR said yes. In every school district, there is a whole section on classroom discipline. That is one of the key pieces in deciding whether or not one ought to be teaching. That is already built into the system, he reiterated. Number 1461 REPRESENTATIVE GREEN asked Mr. Cyr whether subsection (d) in effect "unravels" the whole concept because there could be conflict between how subsection (d) is interpreted and how a teacher may act. MR. CYR said he did not know. He stated: If I have the assurance of the drafters that this is not outside the current disciplinary program, that this works exactly the way it is negotiated in every contract, the rights and responsibilities that the law gives us now, I'm comfortable. But if it more than that, then I do have a problem. Number 1515 CHAIRMAN KOTT said he shared that concern. If it [subsection (d)] is actually being followed today, then why is it necessary to include it in the bill? He said he would discuss that with the bill's sponsor and staff. Number 1534 REPRESENTATIVE GREEN asked if the word "consistent" was problematic. He noted that there are no guidelines to define "consistent." Number 1542 MR. CYR explained that every district and state law allows school districts to evaluate professional staff in a consistent manner, and if they [staff] are found lacking, there are programs laid out in state law that say one will do this, then this, then this. At the end of that, whether one is tenured or not, one can be dismissed for noncompliance. That is the law and that is the way he believes it should be. If subsection (d) changes that in some fashion, then he has a major problem with it. If it doesn't, then he is happy with HB 253 [Version S]. Number 1590 MR. KELLER advised members that subsection (d) was included in response to a concern that a teacher could inappropriately apply the new program and then the superintendent or principal couldn't discipline the teacher who was acting inappropriately. Subsection (d) doesn't change anything. The intent is to keep everything tied in with what already exists, with professional teaching practices, rather than to add something new. Number 1619 CHAIRMAN KOTT asked why, then, if the intent is to tie HB 253 into the existing system, subsection (d) should be included, which would clutter up the statute. He said that unless there is another compelling reason to keep subsection (d), he would rather remove it. MR. KELLER replied that he is sure the sponsor would have no problem with deleting subsection (d). He explained that subsection (d) was included partly in response to the question that Chairman Kott had brought up regarding the narrowing of the violation by a superintendent or somebody who was trying to punish a teacher by tying HB 253 in with the PTPC standards. REPRESENTATIVE KERTTULA said she had two thoughts on the matter. First, she would delete subsection (d) because she doesn't really know what it means, and the lack of clarity may create confusion. She thinks the school disciplinary and safety program should be consistent with PTPC practices. She doesn't know how to make the two jibe because one concerns student behavior and the other concerns the teacher's. Second, she can envision a court having problems interpreting what "enforcement" is. A police officer, for instance, could be "enforcing" the law by conducting an illegal search but just wouldn't be properly enforcing it. It may be that that is where the language needs to [say] that it is proper enforcement under the standards, or that the standards are used when creating the list. In response to a question by Mr. Keller, she specified that she was using Version S and pointing out that there is nothing in subsection (a) on page 3 in terms of what enforcement itself is. Number 1735 REPRESENTATIVE CROFT observed, "If the best we can say about a provision is that we hope it does nothing - and if it does anything, we don't want it - it probably would be better to take it out." Number 1742 REPRESENTATIVE JAMES commented that she didn't see the problems that others were reading into subsection (d). To her, it does say how to enforce; it says "in a manner that is consistent with professional teaching standards adopted by the PTPC." Also, she thinks it is important to include subsection (d). She does not want this to be a second set of rules applied in some other way. She thinks subsection (d) ties HB 253 into the PTPC in a realistic way. Number 1788 MR. CYR addressed Representative James, saying that he and she agree exactly on what this says. His point is that teachers already are bound under the PTPC in everything they do in the classroom. The enforcement of this school disciplinary safety program is no different from any other program. Teachers must do it in a consistent, professional manner that meets that [PTPC] code, and he believe that is important. What he does not want to have happen - because it is in this law and not in another section of the statute - is to have those safeguards which are built into that other section not apply to this. He elaborated: We [the administrator and teacher] may have a difference of opinion on whether I'm enforcing it consistently with that, and I would like the ability to have a hearing and bring that to the school board and have that decided. If that's what this does, then I don't have a problem with it. But if it does something different, that's where I'm caught in a box on this one. I want to have happen exactly what you said, but I don't want to be outside that other statute that gives me not just the responsibility, but the rights that go with it. Number 1848 REPRESENTATIVE JAMES explained that when the public reads a statute, if the statute doesn't specifically refer [the reader] somewhere else, the reader may never get there. She thinks subsection (d) makes it clear by referring to the other statute where it is more thoroughly delineated. Therefore, the public would not be missing that issue. Furthermore, she thinks it is important to have the public understand the statute, but she just does not see that this language in subsection (d) accomplishes that. She think it ties it in and refers [the reader to the related statute]. CHAIRMAN KOTT asked if there was further discussion. There being none, he asked Carl Rose to comment. Number 1906 CARL ROSE, Executive Director, Association of Alaska School Boards, said the association previously had three areas of concern. First he noted, the association had been concerned about differentiating between policy at the board level and the safety program devised at each school site. House Bill 253 still requires a considerable amount of work, but he thinks it now delineates the difference between district policy and what that means in terms of legal status and the authority of local schools to put together a plan consistent with that. Number 1932 MR. ROSE said his second point was related to concern for due process, as had been discussed earlier. In AS 14.31.30, it says that a teacher or employee may not be terminated or otherwise punished for enforcement of the above approved school disciplinary and safety program. That initially had raised a question with the association about what recourse a school district would have to step in and investigate. Mr. Rose believes that is why subsection (d) was included. He doesn't know that it actually does what it was designed to do, but he believes it gives the administration or a parent who has a concern the opportunity to investigate, validate and take appropriate action. Number 1980 MR. ROSE said the third point of concern to the association had been "criminalizing" school board members, who are elected officials. He thinks the recommended change from a misdemeanor to a violation is appropriate. Mr. Rose then asked what HB 253 does, even in its amended form, that is not accomplished in Chapter 4 of the Alaska Administrative Code (4 AAC). He said he has concluded that the issue of school safety is critical enough to justify elevated concern. Although HB 253 is attempting to do that, he wonders if the bill succeeds in doing so. MR. ROSE pointed out that he sees some additional costs that will be placed on the school district [by HB 253], but who would be opposed to a school safety program? He said he appreciates the effort by the sponsor and staff to try to accommodate his group's concerns, and he thinks they have succeeded to some degree. He again asked what this does that isn't covered under 4 AAC. He answered that, frankly, he doesn't see much other than specificity. He does think that if a teacher's actions are not reviewable, in that the teacher may not be terminated for exercising his or her responsibilities under a school safety plan, then it is appropriate to include subsection (d). That ensures that the teacher can be held accountable. Mr. Rose concluded that progress has been made toward addressing the association's concerns, but he still does not know if HB 253 "is really going to get us where we need to go." Number 2070 REPRESENTATIVE JAMES said she wasn't sure she had understood Mr. Rose's comments. She thinks he agrees with the need to be absolutely sure that the teacher is not going to be "hatcheted" without going through the process currently in use. In that case, it is very important to tie together the safety and discipline issues addressed by HB 253 and the fact that it ought to be done in a manner consistent with the current system. She does not want HB 253 to "stand out there by itself" and to allow any damage to be done before pre-existing rights are claimed by a teacher. Subsection (d) ties HB 253 into the context of existing practice, saying that they are consistent. She asked Mr. Rose if that was what he had said. Number 2137 MR. ROSE said yes. If HB 253 is going to include subsection (a), which says an employee may not be terminated or otherwise punished for enforcement of the school disciplinary and safety program, then something needs to be said in subsection (d) that the employee shall enforce the approved school disciplinary program in a way that is consistent with the PTPC. The association's concern had been that if [an administrator] couldn't take corrective action that seemed necessary, then a teacher could act and a parent might not have any recourse. Also, at that time, HB 253 had referred to "criminalization": if an administrator questioned a teacher's enforcement, took corrective action, and later was found to have been wrong, that could have resulted in a class A misdemeanor. Number 2190 CHAIRMAN KOTT asked what happens now, in the absence of HB 253, if the PTPC's professional and ethical standards are not followed by a teacher. What is the recourse at this point other than tenure review or performance evaluation? Number 2227 MR. ROSE gave the example of an employee [teacher] taking action that is deemed to have been inappropriate. Under current law, the teacher's action would be investigated. If the investigation showed that the action had, indeed, been inappropriate, the result probably would be a letter to that effect going into the teacher's personnel file. If there is going to be a termination as a result of a teacher's behavior, that is a "big deal," he said. There already are processes for termination in existing law. Mr. Rose specified that his concern is that subsection (a), in the absence of subsection (d), could cause problems. If the school board can be sued, what can it do to ensure that if a parent comes and raises a question, the board can go in and revisit that issue? When he look at subsection (a) in the absence of (d), he does not know what his recourse is. Number 2298 CHAIRMAN KOTT asked if there currently is a school disciplinary and safety program that has been adopted by the PTPC. MR. ROSE said he doesn't think it is called a school disciplinary program; it is called a student rights handbook. CHAIRMAN KOTT surmised that the PTPC will have to adopt a disciplinary and safety policy in order to enforce it. Since the makeup of the commission consists of nine members, five of them teachers, would that not lend itself to some very generic or general considerations when the policy is adopted so there would be some discretion? MR. ROSE said he could not provide an answer on that. Number 2356 REPRESENTATIVE GREEN asked if deleting subsection (d) and inserting (in line 6, after the word "students") the words, "shall enforce, but," would allay Mr. Rose's concern and still avoid the problem that Representative Dyson had brought up originally. As Representative Kerttula had pointed out, perhaps it should be in subsection (a) if it is going to be there. MR. ROSE said that would give direction to what the responsibilities are, if these people "shall enforce" a school disciplinary program. REPRESENTATIVE KERTTULA commented that Representative Green and Mr. Rose were "going to exactly" her concern. Subsection (d) is leaning toward a definition of enforcement, but by not defining it right in that section [subsection (a)], one runs the risk of having things get really confusing, especially if this goes to court. She proposed having something in subsection (a) along the lines of "may not be terminated or otherwise punished for enforcement consistent with the professional teaching standards." She said her concern was that there are going to be two different systems that don't really work together, the professional teaching standards and school disciplinary plan. It might also be appropriate to revise subsection (a) to say, "each governing body shall adopt a written school disciplinary and safety program." REPRESENTATIVE KERTTULA said the safety and discipline programs need to be consistent with the professional teaching standards. One cannot have a standard that is out of alignment with professional teaching practices because then that is just "setting up" the teacher with two different sets of standards. "I think everybody wants to get to the same place," she added. "We want the teachers enforcing the standards, and if they properly enforce those standards, we don't want them to be punished. It's just [a matter of] what's the easiest way to be clear about that." Number 2455 MR. ROSE agreed. REPRESENTATIVE JAMES said Representative Kerttula had just pointed out a huge problem: HB 253 is asking the school boards to write these policies. She asked whether that necessarily means, then, that the PTPC is going to have to ratify every school board policy. TAPE 00-33, SIDE B REPRESENTATIVE JAMES continued: What is the intent here? The reason we have this bill before us is because there is a problem, a serious problem. It's called 'no discipline in schools.' The reason is that we really haven't addressed it [discipline] seriously, and the people who should address it are the school boards. Isn't that what we're trying to fix here, so that there is a system and the teachers if they do these things can't be held liable for doing something that might be inconsistent someplace else? Number 0031 MR. ROSE replied that setting policy is the responsibility of schools, and policies are in place across the state. The question is how they are administered. He thinks Representative Dyson's bill suggests that he would like to have the community involved in the discussion to determine the norms, so that the programs would reflect those norms. How they are administered throughout districts seems to be the problem. Mr. Rose said there is continuity in the majority of school districts. However, in some areas there appears to be a problem from time to time that HB 253 is trying to address. But he does not think the policy issue is where the problem is. Rather, he thinks the problem is in the administering, which ought to reflect the norms in the community. Number 0098 REPRESENTATIVE JAMES asked if Mr. Rose was saying that there is no enforcement because there is no administrative enforcement of the policies that are already there. She asked: What does the PTPC say about this? What is its current position on teachers who don't administer the policies of the school district? MR. ROSE answered that he doesn't think the PTPC standards are relevant to the concerns being discussed. Number 0177 REPRESENTATIVE JAMES explained that she doesn't think that it is possible to pass a piece of legislation that doesn't relate to the PTPC in some way, shape or form, "because aren't they the ones that have the final decision on whether or not teachers are punished?" MR. ROSE said he did not believe so. "I think the termination takes place at school district level," he added, "and whether you go after someone's certificate is where the PTPC comes in." Number 0198 REPRESENTATIVE KERTTULA said she had just looked up the responsibilities of the PTPC. According to statute, the PTPC is supposed to prepare regulations and to have responsibility over ethical and professional performance of the teacher; preparation for and continuance in professional services; and contractual obligations. "So it isn't a great fit," she observed. She suggested that rather than trying to make the two fit together, HB 253 could just say "lawful enforcement, which would clear it up for her. CHAIRMAN KOTT asked if anyone else wished to testify on HB 253. There being no response, he declared that public testimony on HB 253 was closed. Number 0261 REPRESENTATIVE KERTTULA made a motion to adopt Amendment 1: On page 3 to delete subsection (d), lines 22-24, and in subsection (a) on line 6, before the word "enforcement," to insert "lawful." There being no objection, it was so ordered. Number 0301 REPRESENTATIVE JAMES told the committee that she still is concerned that there is a standard being set and if a teacher enforces that standard, the teacher cannot be punished. But the bill does nothing if the teacher doesn't enforce that standard, she indicated, which was removed with subsection (d). CHAIRMAN KOTT recalled that the committee had heard from a testifier that there already are provisions being used to ensure that the standards, whatever they might be, are utilized and enforced in the classrooms. Number 0340 REPRESENTATIVE GREEN expanded on Representative James' concern. He said HB 253 now includes a provision that says a teacher cannot be terminated for enforcing an approved program, but now it doesn't say that the teacher will [enforce]. He asked whether that means, by implication, that the teacher or teacher's assistant shall enforce the program. He further asked whether the title automatically ensures that there will be enforcement or whether HB 253 in any way contradicts other places in law that say "that they will enforce." CHAIRMAN KOTT said he thought it would be understood that teachers would lawfully enforce, as addressed in other areas. Number 0394 REPRESENTATIVE JAMES said she was still listening in her mind to Mr. Rose's testimony that they have policies but that it is an administrative problem, which HB 253 does nothing to fix. "We haven't done a thing if the teacher doesn't do it or chooses not to do it," she added. CHAIRMAN KOTT asked Mr. Cyr to reiterate exactly what he had said about a teacher who did not want to enforce the safety or disciplinary program established by that particular board or school. For example, what are the consequences, what actions are available and what remedies can be taken against that teacher who fails to perform in accordance with the intended [policy]? Number 0461 MR. CYR answered that a classroom teacher has an obligation to put into place all of the policies that are set by the school board that have to do with the classroom, and discipline is a large piece of that. Lack of discipline is the most common reason for not retaining a probationary teacher, he said. If a teacher cannot maintain discipline, then the supervisor has an obligation to evaluate the situation, point out what is being done wrong, and indicate ways of correcting it. And at the end of a time specified by law, a teacher who has not made the appropriate corrections can be terminated. That can be done not only with a probationary teacher, but also with a tenured teacher. Mr. Cyr continued: I think Representative James raises an interesting point. What happens when there is a failure of the administration to basically do their job, when they are not evaluating, when they don't want to get into that? I don't know that this law addresses it. I think that most of the administrators like most of the teachers are trying to do a good job and trying to do the right thing. Are there problems out there? You bet. Are we working to fix them? Yes. Does this law address it? I don't think it addresses it anywhere. I don't think that was the intent of this law. Number 0575 CHAIRMAN KOTT agreed that HB 253 does absolutely nothing that forces administrators to provide guidance or oversight to the teacher who is not following the practice of having discipline or safety in the classroom. That is not addressed in this bill. MR. CYR said HB 253 places a responsibility on school districts to have a discussion at the school level as to what is proper, what kind of discipline should be expected, what should be expected of children. That is going to place a lot of pressure within the community; with the administrator, once those decisions are made; and with the classroom teacher. Mr. Cyr said he believes that clears up some doubt around what should be expected in the classrooms. In that respect, he thinks the bill does something. He elaborated, "I think that conversation forces those people to become more responsible. At least this lays out those guidelines and parameters for the community to discuss. I think that's the important piece here." Number 0657 REPRESENTATIVE CROFT said he doesn't think the sponsor was trying to tackle every conceivable aspect of this. He stated: It [HB 253] tried to address the adoption of disciplinary and safety programs and making sure that teachers who follow them aren't going to be disciplined, and I think we've got it to a point where it does that. If there is more to be done, it can be done in other legislation or at other times. But I think we've gotten Representative Dyson's bill to more accurately reflect what Representative Dyson wanted to do. I'm not sure he wanted to tackle the area of forcing administrators to force teachers to do their job. I don't know that that was any part of the impetus of this legislation. CHAIRMAN KOTT agreed with that assessment. He noted that Representative Dyson, in his opening remarks, had identified the problems that he was trying to correct. Chairman Kott stated: In no way did I hear that he even insinuated that there might a problem with administrators not providing the right guidance to the teachers. We may be misguided in our understanding of what's going on there. But until I hear otherwise, I think the administrators are doing a fine job, and I haven't heard of any problems. And if there are problems, I guess, you're right, we can correct those in other pieces of legislation. Number 0732 REPRESENTATIVE GREEN asked Mr. Keller what the intent of the sponsor is. CHAIRMAN KOTT further asked Mr. Keller what difference HB 253 might make in relation to 4 AAC. MR. KELLER answered the first question by saying: You hit it right on. Our intent in this bill has nothing to do with motivating administrators to administer school disciplinary programs; that was never part of it. And I'd like to reiterate the value of the discussion at the community level on what the standards are. That's always been a prime premise of the bill. It was our perception that there are a lot of schools out there that have not at the community level determined what the standards of behavior are in the classroom. MR. KELLER then addressed the second question, saying that if the regulations are already handling this, "we want to make sure that the statute is there behind it to make sure it stays there; so that's a valid point." CHAIRMAN KOTT remarked that he believes the committee had crafted a reasonable piece of legislation. Number 0824 REPRESENTATIVE CROFT made a motion to move CSHB 253 [Version S], as amended, from the committee with individual recommendations and the attached zero fiscal note. There being no objection, it was so ordered and CSHB 253(JUD) moved from the House Judiciary Standing Committee. HB 233 - MUNICIPAL BANKRUPTCY Number 0893 CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL NO. 233, "An Act granting authority to each municipality to be a debtor under 11 U.S.C. (Federal Bankruptcy Act) and to take any appropriate action authorized by federal law relating to bankruptcy of a municipality." [Before the committee was CSHB 233(CRA).] JONATHON LACK, Staff to Representative Halcro, testified on behalf of Representative Halcro. Mr. Lack began by explaining that HB 233 had been introduced last year when Representative Halcro was co- chairing the House Community and Regional Affairs Standing Committee, which is listed as the sponsor of HB 233. Mr. Lack then told members that in 1994, the United States Congress had changed federal bankruptcy law to require local governments to get authority from their state government before they could go through any type of bankruptcy reorganization. Most states (43) have granted that authority to their local governments, but Alaska is one of the few states that have not. House Bill 233 would allow local governments to seek protection in Chapter 9 of the federal bankruptcy law. CHAIRMAN KOTT asked if anyone wished to testify; there was no response. He then asked if anyone had questions for the sponsor's representative. Seeing and hearing none, he announced that public testimony on HB 233 was closed. Number 0824 REPRESENTATIVE CROFT made a motion to move CSHB 233(CRA) out of committee with individual recommendations and the zero fiscal note. There being no objection, it was so ordered and CSHB 233(CRA) was moved from the House Judiciary Standing Committee. HJR 35 - REPEAL BRADY ACT Number 1001 CHAIRMAN KOTT announced that the next order of business would be HOUSE JOINT RESOLUTION NO. 35, relating to requesting the United States Congress to repeal the "Brady Handgun Protection Act". RYNNIEVA MOSS, Staff to Representative Coghill, Alaska State Legislature, primary sponsor of HJR 35, provided information similar to what she had presented with the sponsor statement at the last committee meeting. She said Representative Coghill had introduced HJR 35 because he feels that government is placing unfair restrictions on responsible citizens by failure to act responsibly in enforcing existing laws. Ms. Moss told members that the Virginia police, for example, make about 400 arrests per year, more than the federal government does nationwide, as the federal government prosecutes fewer than one in 1,000 violators. MS. MOSS reported that in 1996, the [federal] General Accounting Office released figures that indicated President Clinton had exaggerated by 65,000 the number of persons denied permission to purchase guns in 1997; he had said there were 69,000, but in reality there were about 3,000. In 1997 and 1998, 6,000 students were caught with illegal guns at schools, but only 13 were prosecuted. Furthermore, a Seattle Post-Intelligencer article earlier this year had pointed out that there are 700,000 physicians in this country, with 120,000 accidental deaths caused annually by physicians. In contrast, there are 80 million gun owners, with 1,500 accidental deaths. MS. MOSS said the message that Representative Coghill is trying to give to Congress is that if the laws are not being enforced, then there is no compelling reason to restrict a United States citizen from the right to keep and bear arms. [Citizens'] Second Amendment rights are being infringed upon. The right to privacy is being infringed upon. The right to protect oneself and one's family is being infringed upon, based on non-enforcement of laws. Number 1120 CHAIRMAN KOTT said his only initial question concerned page 1, line 14, where it says the Brady Act basically violates the provisions of the Second Amendment. "Are we suggesting," he asked, "that Congress passed an unconstitutional bill?" MS. MOSS said she thinks that would be Representative Coghill's perception. There is a court case, Texas v. Emerson, now in the U.S. Court of Appeals for the Fifth [Circuit], appealing a federal court decision that the Second Amendment is, indeed, an individual right, not a group right, as has been inferred in the past from the use of the word "militia." Number 1162 REPRESENTATIVE CROFT asked what the effect would be if the federal government were to repeal the Brady Bill. Would the background checks be gone? MS. MOSS said the background checks would not be eliminated because they were an addition to federal law after passage of the Brady Act. The Brady Act was passed in 1968; it was amended in 1994, 1996 and 1998. REPRESENTATIVE CROFT asked what would happen if Congress repealed the Brady Act, as HJR 35 requests. MS. MOSS said it is her understanding that the National Instant Checks System (NICS) was passed as separate legislation, and if the Brady Act were to be repealed, the NICS would remain in place. Number 1185 REPRESENTATIVE CROFT asked what would change. MS. MOSS explained that repeal of the Brady Act would remove the restrictions on what type of guns could be possessed. It would also eliminate provisions that now prevent people who have been convicted of misdemeanors from owning guns. In response to a question by Representative Croft, she clarified that persons convicted of domestic violence misdemeanors now are prevented from owning guns. She further clarified that the Brady Act restricts ownership of certain types of guns, including some categories of assault weapons. She said many of the guns used in Alaska in the past for hunting are considered semi-automatic weapons. REPRESENTATIVE CROFT summarized his understanding that prior to the Brady Act, restrictions on gun ownership applied only to convicted felons, not to those convicted of domestic violence misdemeanors. He asked whether anything else would be changed by repeal of the Brady Act. MS. MOSS answered that her understanding is that repeal of the Brady Act would eliminate everything except for the instant check. Number 1253 REPRESENTATIVE CROFT pursued clarification of "everything." He said he thought that at various times, Congress had prohibited "various categories of things," but all of those prohibitions have been "rolled into" the Brady Act, so this [HJR 35] would wipe them all out. MS. MOSS affirmed that. She also pointed out that there has been some misconception about the National Rifle Association (NRA) and its place in gun laws. She said the NRA was instrumental in putting together some of the language for NICS, and the NRA was never opposed to the instant check. In response to Representative Croft's inquiry, Ms. Moss said the NRA supports HJR 35. Number 1290 CHAIRMAN KOTT asked if there were additional questions, or if anyone else wished to testify. There being no response, he announced that public testimony was closed on HJR 35. Number 1353 REPRESENTATIVE JAMES made a motion to move HJR 35 out of committee with individual recommendations and the accompanying fiscal note. There being no objection, it was so ordered and HJR 35 was moved out of the House Judiciary Standing Committee. HJR 53 - CONST AM: WILD FOOD RESOURCES CHAIRMAN KOTT announced that the next order of business before the committee would be HOUSE BILL NO. 53, "An Act relating to allowable absences from the state for purposes of eligibility for permanent fund dividends; and providing for an effective date." [Before the committee was CSHJR 53(RES).] Number 1395 EDDIE GRASSER, Staff to Representative Masek, Alaska State Legislature, noted that there was a proposed committee substitute (CS), Version I [1-LS1337\I, Utermohle, 3/18/00], which he would address that day. He informed the committee that he has been working with members of the commercial fishing industry in order to ensure that Representative Masek's intent that consumptive users be accorded this protection would apply across the board. She does not want to cause conflicts among consumptive users. Therefore, in working with the commercial fishing industry, changes were made primarily in subsection (b). MR. GRASSER conveyed the belief that if HJR 53 were placed on the ballot and passed, it would do the following. First, it would provide people in areas such as McGrath another legal tool to try to get the state to implement a management scheme. Therefore, the word "enhanced" [was inserted on page 4, line 7]. Furthermore, the sponsor would like to include the language specified in Version I in subsection 2(b). In discussions, several attorneys had pointed out that this language would not necessarily prevent the Board of Fisheries or the Board of Game from closing areas to consumptive uses for some reason; however, it would raise the bar somewhat so that [closing areas to consumptive uses] could not primarily be done for a nonconsumptive purpose. For example, the Board of Game had closed bear hunting on Paint River, north of McNeil River, although no biological evidence was presented to close that bear hunt; it was done primarily because people viewing bears in McNeil River State Game Sanctuary were concerned that individual bears would accidentally be killed in the harvest and thus no longer be available for viewing at McNeil River. MR. GRASSER pointed out another consideration. Recently the Governor had written a letter to the Board of Game requesting that a wolf pack be protected by closing an area adjacent to Denali National Park. Both the National Park Service (NPS) and the Alaska Department of Fish & Game (ADF&G) initially had stated that there was no biological need to do so. Furthermore, there was probably no reason to do so to protect the viewing interests within the park's borders. MR. GRASSER noted that closures for conservation purposes could still occur. For example, McNeil River could be closed for the conservation purpose of protecting the bear population in an area where the bears congregate. Therefore, the bear population would not be unnecessarily diminished through hunting efforts, and there still would be a supply of bears that could be hunted outside of the refuge. Number 1624 MR. GRASSER explained that Representative Masek believes HJR 53 is necessary because over the last 25 years, animal rights groups have continually pressured the state and the federal government to close hunting and trapping in more areas in Alaska. During the Alaska National Interest Lands Conservation Act (ANILCA) debates, there were many comments that there would not be any further closures, and there were provisions in ANILCA to protect hunting in some of those preserves. However, the NPS has continually worked to close down areas to hunting by denying access or by a closure, Mr. Grasser contended. For example, the NPS has proposed the closure of subsistence hunting in the Kantishna area of Denali National Park. In that case, although subsistence was accorded the preference among hunters within ANILCA, it is not considered the priority use among nonconsumptive uses. Therefore, the NPS had decided that tourism was the higher and better use in that area, and had moved to close hunting. MR. GRASSER pointed out that the same situation exists with commercial and subsistence fishing in Glacier Bay National Park and Preserve and a few other areas of the state. Therefore, without some extra protection for consumptive users, it appears that this trend will continue, especially when considering that most people in the state do not hunt. Mr. Grasser noted that he grew up in Alaska and hunted in the state even before statehood. He reviewed his hunting history and the areas that he has been locked out of, through closures. MR. GRASSER told members that 40 million acres in Alaska are entirely closed to hunting and trapping. Another two-thirds of Alaska is off-limits to any active, traditional or intensive management for predator-prey relations and habitat manipulations because the land belongs to the federal government, which has ruled out such management. However, the regulations say that some consideration must be given to nonconsumptive uses; therefore, some areas must be closed to hunting in order to provide a priority for nonconsumptive uses. Mr. Grasser said, "I would suggest that the 40 million acres that we have already closed, and the additional two-thirds of the state that are basically closed to any kind of active management, do show that the state has given a priority to viewing and other nonconsumptive uses." MR. GRASSER turned to the game regulations. He informed the committee that one of the highest priorities for viewing is bear viewing, and two of the premier habitat areas for brown bear are located on Unit 8, Kodiak Island, and Unit 9, the Alaska Peninsula. He said he is intimately familiar with both areas because he has guided in both areas. The regulations for Unit 9 specify almost no open season in most of the unit. There are a few openings for subsistence in Unit 9, the Western Alaska brown bear management area, which is by registration only, and where hunting can only occur from September 1 through May 31. In the Chignik brown bear area, one can subsistence hunt from November 1 to December 31. In the remainder of Unit 9, there are a couple of registration hunts in the Naknek River drainage due to the conflict between human populations and bears. In the remainder of Unit 9, one can hunt every other year for two weeks. Therefore, Mr. Grasser suggested, most of Unit 9 has already been given a priority for nonconsumptive uses by action of the Board of Game. The same is true for Unit 8. Number 1959 MR. GRASSER noted that he had performed a quick search on the Web in order to discover what sort of opposition there is to hunting and trapping from established animal rights groups or environmental groups. There are literally hundreds of groups organized in the United States and around the world that are actively pursuing a closure to hunting, trapping and fishing. He said that the Friends of Animals in Connecticut say the following about hunting in the McGrath area: "Meanwhile, local communities have announced that they are tired of waiting for the state to act, and are therefore implementing their own control program in the McGrath area. Our [the Friends of Animals] position is that the Alaska Department of Fish & Game has an obligation and legal authority to stop these hunts." MR. GRASSER turned attention to the Humane Society of the United States, which he indicated has said, "Wildlife professionals remain firmly imbedded in the historic paradigm of conservation while the public increasingly is converted to the expanding paradigm of environmentalism." He remarked that he had pointed out the last statement because sometimes environmentalism has been construed to be conservation. However, he has determined, in working in Juneau the last 18 years, that environmentalism means preservation, not conservation. Mr. Grasser continued to provide the committee with examples that he had encountered on the Internet. He concluded that such groups are not going away. MR. GRASSER noted that Representative Masek's office had recently received a copy of Ron Arnold's book, Undue Influence. He said this book discusses prescriptive foundations and the attack on the resource class throughout the U.S. He himself has been studying the environmental movement for the last few years and believes some of this [information in Undue Influence] is good. He has found that ex-members of the environmental community, such as Walsh Cochran (ph), author of No Turning Back, have contended that the environmental movement has become a religion and is bent on imposing that religion on the rest of America. MR. GRASSER told members he would read from a couple of things that illustrate that. He read: "Environmentalism is a moral crusade. Moral crusades generate true believers, not accommodating neighbors. You can never be green enough." He continued to read other comments from environmental groups. In conclusion, Mr. Grasser said his experience in Juneau and throughout Alaska - as well as the continuing efforts of some groups to close down more acres to consumptive users - is the impetus for HJR 53. Furthermore, he believes the record reflects that "we" have done quite a bit to protect nonconsumptive uses. Therefore, he believes that it is time to do something to protect the remaining consumptive uses, which is what HJR 53 will accomplish. Number 2350 REPRESENTATIVE GREEN made a motion that the committee adopt the proposed CS, version 1-LS1337\I, Utermohle, 3/18/00, as the working document. There being no objection, it was so ordered and Version I was before the committee. REPRESENTATIVE GREEN expressed concern with the word "enhanced" on page 1, line 7, which is also included in the title. He explained that his concern regards having an unmanageable situation. He mentioned the beetle-kill situation and asked if the state would need to "enhance" the forest or grasslands because this applies to more than merely fish and wildlife. He suggested perhaps "enhanced" should not be used. He believes that adoption of subsection (b) accomplishes what is desired. TAPE 00-34, SIDE A MR. GRASSER noted that the legislature itself would have the authority to further elaborate on what these words mean in statute [after passage of a constitutional amendment]. He pointed out that only the word "enhanced" would be added to Section 4 [of Article VIII of the state's constitution]. All these adjectives are based on the sustained yield principle. According to George Utermohle, Attorney, Legislative Legal and Research Division, and Ted Popely, House Majority, as long as a record is established which says that "enhanced" means those opportunities based on sustained yield to do something that is within the state's power to do, the state would not be bound to do something about a beetle-kill forest. Number 0074 REPRESENTATIVE GREEN remarked that he is concerned that the supreme court sometimes meddles with what was the intention of the legislature; someone could make a case [under this language] and find a sympathetic supreme court that did not understand what the sponsor meant. MR. GRASSER agreed that could happen, saying perhaps that [language] would have to be taken back out. However, the intent is to provide people, specifically in the rural areas, some opportunity to go through the legal system to obtain help. REPRESENTATIVE GREEN reiterated his belief that subsection (b) does that. REPRESENTATIVE JAMES referred to Representative Green's mention of forests and grasslands; she said that doesn't bother her in this. She explained that she thinks the rule is in there already with "developed" and "maintained." She added: And I think we should have somebody tell us that we should plant more trees and actually create more grasslands, in both cases, whether we utilize them for any economic benefit or not, but for the future of our state. So, I don't have any real problem with "enhanced," except I don't know what it means. MR. GRASSER answered that there has been discussion about the word "enhanced". Essentially, the legislature would have to define this word in statute if HJR 53 passed. Number 0229 REPRESENTATIVE CROFT commented that one could "maintain" something on the sustained yield principle; however, he is unsure how one would "enhance" it on the sustained yield principle. Either this [HJR 53] contemplates growing to infinity, which is the meaning of the word "enhanced," or, if that isn't meant, the word shouldn't be put in. It is difficult for the courts to be mind-readers. REPRESENTATIVE CROFT turned to Section 2 and read from subsection (b), which stated: Consistent with the sustained yield principle, the harvest of fish and wildlife may not be diminished solely to provide for nonconsumptive use of fish or wildlife. He related his understanding that whenever a consumptive use is allowed [under the proposed legislation], it is similar to a ratchet that precludes going back to the former status. If there too many bears in McNeil River State Game Refuge, for example, and it were decided that there would be a limited hunt in order to cull 50 bears, wouldn't HJR 53 prevent the state from stopping a 50-bear hunt the next year as well? MR. GRASSER agreed that it couldn't be done solely to provide for a viewing purpose, but said it could be done for a conservation purpose or to do an ADF&G study. REPRESENTATIVE CROFT responded: Well, the purpose there is the viewing of the McNeil bears. So, I want, the next year, to stop it to allow that nonconsumptive use. You're right that when you get down to "almost no bears left," you could do it for conservation purposes, but I couldn't do it to re- establish the nonconsumptive use. Number 0380 MR. GRASSER said that actually it would require an Act of the legislature to open up McNeil River to bear hunting because that area is a sanctuary. Therefore, the Board of Game cannot open McNeil River [State Game Sanctuary]. REPRESENTATIVE CROFT pointed out that this [HJR 53] is a constitutional amendment. "Even with that, the legislature couldn't do it," he added. REPRESENTATIVE KERTTULA agreed, saying it would preempt it. MR. GRASSER remarked, "That's not the understanding of our legal people, and it's not our understanding." Having sat on the Board of Game, he said, there are numerous tools available to the legislature and the board to stop hunting besides the purpose of viewing the bears. He pointed out that in the McNeil River case, a conservation purpose could be claimed in order to arrive at the point being addressed; the bears congregate at this feeding place, and it isn't really an ethical place to hunt. Second, that pool of bears is maintained for the areas outside of that refuge or sanctuary for legal hunting, which is done not just at McNeil River but at other places such as Chugach State Park for sheep hunting. REPRESENTATIVE CROFT asked whether a whale would be considered a wildlife resource. MR. GRASSER answered that whales are not managed by the state. REPRESENTATIVE CROFT again asked whether a whale is a wildlife resource; there was no response. He asked whether a wolf is considered a wildlife resource. MR. GRASSER replied yes to the last question. Number 0486 REPRESENTATIVE KERTTULA remarked that she would not have a problem with this if Mr. Grasser personally was the one making the rules because she, having grown up with Mr. Grasser, trusts his ethics. However, she doesn't see that subsection (b) doesn't preempt any other rules. It clearly says "may not be diminished solely to provide for nonconsumptive use." Therefore, if there is no consumptive use, [the harvest] cannot be diminished. She asked, "Is that different from what your counsel is saying?" MR. GRASSER explained that his counsel had said that by constructing it [the language] in this fashion, it leaves the door open for all kinds of conservation purposes. However, if the only reason for closing it [a harvest] was for viewing, then there would be a problem. REPRESENTATIVE KERTTULA noted that it would be viewing or anything that is different from eating, which is nonconsumptive. She requested confirmation. MR. GRASSER reiterated that according to discussions with Mr. Popely and Mr. Utermohle, conservation purposes or the purposes of doing a management study on the population by the ADF&G would constitute a reason for closing that population to hunting or trapping. REPRESENTATIVE KERTTULA asked whether Mr. Utermohle and Mr. Popely were saying, then, that it is for consumptive use because it would be bringing back up the consumptive use. MR. GRASSER answered that he believes they were probably looking at some of those conservation purposes as being necessary for studies. Therefore, it would not necessarily be a consumptive or a nonconsumptive use, but would be a scientific use. Number 0609 REPRESENTATIVE KERTTULA said she thinks that is a real question, however. She believes that if there is something nonconsumptive, that couldn't be done under this language. She indicated she wished to talk with Mr. Utermohle and Mr. Popely about that. She then asked what this could do to commercial fishing. Would commercial fishing be considered a consumptive use? Or is it one step removed because the person fishing isn't consuming the fish. She asked whether there already is an opinion on that. MR. GRASSER explained that the reason that the sponsor and her staff had pushed for the current language [in Version I] versus the language that had passed from the House Resources Committee is because there is a legitimate question regarding human consumption. The question is whether the language would preempt commercial fishing in favor of personal use, subsistence and sport fishing. Mr. Grasser said he and Mr. Popely had met with the United Fishermen of Alaska (UFA) Board of Directors and had talked to [Legislative Legal Services]; he said their contention is that the phrase "the harvest of" would include any resource group that harvests, whether for commercial or noncommercial uses. Number 0692 REPRESENTATIVE ROKEBERG stated that he has concerns similar to those of Representatives Croft and Kerttula. He noted that because the animals are so readily accessible, hunting of the Kenai Lake sheep herd on the south face of the mountain and the goats at Turnagain Arm has been restricted; for the sheep herd in particular, that has been the case since the 1950s or before. The animals have been accessible for viewing by the public, which is why the herd has always been protected. Therefore, if that herd were to move out of its current geographic location, HJR 53 would preclude the ADF&G and the Board of Game from shutting down that area to protect the herd that was wandering. He asked if he was correct. MR. GRASSER answered that Representative Rokeberg is partially correct. However, he himself had legally hunted sheep on the Turnagain Arm drainage about 25 years ago. REPRESENTATIVE ROKEBERG clarified that he now was referring to the goats of Turnagain Arm that come down to the roadway. Those goats would presumably have to be protected because that area and population have been "ruined by human contamination." These animals cannot be hunted because they think humans are friendly. Number 0817 MR. GRASSER agreed, adding that people haven't been able to hunt those sheep for some time, nor able to hunt the sheep in Cooper Landing or Sheep Mountain Preserve by Caribou Creek on the Glenn Highway. However, those three populations are migratory and do wander into areas where there is legal hunting. He noted that sheep are fairly migratory within their home ranges; those sheep wander in and out of the protected areas. Again, that would be part of the conservation purpose, he said. In the Turnagain Arm area, furthermore, there is a definite safety issue involved that could result in closure of hunting on that herd. Mr. Grasser noted that part of the Sheep Mountain Preserve is set aside to protect the core area of the sheep range in order to allow for propagation and the ability of those sheep to migrate into the rest of the range. REPRESENTATIVE ROKEBERG questioned, however, whether that closed area could be expanded to protect that particular herd, under the amendment proposed in HJR 53. MR. GRASSER said that one could do so if the number of people increased in an area, for example, and it became a public safety issue; in that case, the Board of Game would probably close sheep hunting in that area even under the terms of this constitutional amendment. Number 0937 REPRESENTATIVE CROFT asked if anywhere in statute it says that human consumption or subsistence is the highest use. MR. GRASSER answered that subsistence is accorded the preference above other consumptive uses, but there is no place in statute that he is aware of that says consumptive use is the highest and best use. In further response to Representative Croft, Mr. Grasser specified that the [subsistence preference] can be found in AS 16.05.258. REPRESENTATIVE CROFT asked whether this type of provision could be done in statute. MR. GRASSER answered that this could be done in statute because the current language in Section 4, Article VIII, [of the constitution] refers to the preference among beneficial uses. He added, "Statutorially, you could do the same thing that you did for the subsistence preference that's in statute and claim that hunting, trapping and fishing were going to be accorded a priority over nonconsumptive uses." REPRESENTATIVE CROFT surmised, "Because these are uses, consumptive versus 'non,' we can distinguish them already under our constitutional provision." MR. GRASSER agreed. He pointed out that the sponsor statement expresses willingness to work in order to craft language that met the goal. Regarding Representative Croft's question about whether this can be done statutorially, he is correct, Mr. Grasser said. However, the historical record that he himself is aware of indicates that "the movement to rid ourselves of the ability to use resources - especially hunting, trapping and fishing - hasn't seemed to slow down any." There are calls for more closures, and hunters in Alaska have become a minority, making up less than one- fifth of the population. The question becomes whether hunting is legitimate. Will it continue to be squeezed out, or will the state afford some protection to a tradition that goes back generations in Alaska? Mr. Grasser said that is basically the goal, which he does not believe could be captured with a statutory change because at some point he believes that "those forces that are looking to get rid of hunting will probably prevail and remove the statute." CHAIRMAN KOTT announced that HJR 53 would be held over in order to have Mr. Utermohle present information at a future hearing regarding the definition of "enhanced," as well as to clarify the provision on Section 2, line 12. HJR 47 - CONST AM: PERMANENT FUND [Discussion also relates to SJR 33, the companion resolution in the Senate.] CHAIRMAN KOTT announced that the final order of business would be HOUSE JOINT RESOLUTION NO. 47, proposing amendments to the Constitution of the State of Alaska relating to the permanent fund and to payments to certain state residents from the permanent fund. Number 1170 REPRESENTATIVE GARY DAVIS, Alaska State Legislature, sponsor of HJR 47, came forward, requesting that Senator Mackie join him at the witness table. He reminded members that as presented previously to the committee, the plan under HJR 47/SJR 33 separates the corpus of the permanent fund into two branches. The earnings from approximately 50 percent of the current fund would go to general government services, and the other 50 percent would be a one-time distribution to Alaskans who are eligible for the 2001 permanent fund dividend (PFD). He asked Senator Mackie to explain the charts he had brought with him. SENATOR JERRY MACKIE, Alaska State Legislature, presented some visual aids. He noted that voters would first have to approve the plan, after which $25,000 would be paid to each eligible Alaskan. The PFD program would then end after the one-time payout. The remaining principal of the fund is constitutionally protected; only the earnings would be used, first to inflation-proof the fund and then the remaining earnings would go the general fund. SENATOR MACKIE called attention to a chart comparing projected earnings at 8, 10 and 12 percent. He said the permanent fund has never earned less than 10 percent, and thus he would use the 10 percent projection, at which rate $884 million would be returned to the general fund, after inflation-proofing, to balance the budget in the year 2002. Senator Mackie pointed out, however, that the standard projection from the Alaska Permanent Fund Corporation (APFC) is 8 percent, which he believes to be extremely conservative because returns have been more like 10 to 12 percent. He emphasized that the current constitutional mandate that 25 percent of all oil revenues go into the [permanent] fund wouldn't be changed. He noted that a handout provided at the previous hearing contain those projection charts. [The body of the memorandum he had provided, including the chart, is included in the minutes from the March 1 hearing on HJR 47.] Number 1327 REPRESENTATIVE ROKEBERG offered Amendment 1, which read: Page 2, line 4, after "dividend" Insert: "on a payment schedule selected by each individual as provided by law" REPRESENTATIVE GREEN objected for purposes of discussion. REPRESENTATIVE ROKEBERG explained that the intention is to allow the recipient of the $25,000 dividend to elect a payment schedule that the legislature would be able to pass statutorily. For example, people could choose a one-year lump-sum payment, a three- year payout or a five-year payout. It would allow people to receive the dividend over a period of five years, lowering their [federal] taxes. Also, it may keep other benefits or provisions in their income stream from being disrupted. Furthermore, it may diminish the inflationary results from having some $12 billion, less taxes, enter the state's economy. It would also be less destructive because in certain instances many retail and service businesses in Alaska have relied upon the timing of the PFD for their sales; this will allow those businesses time to adjust or to "make hay when the sun shines" over the three to five years or whatever time would be allowed under statute. REPRESENTATIVE ROKEBERG continued. He said he believes this is defensible from a tax standpoint. He also believes that the legislature, by law, could even establish a check-off system whereby citizens could use direct deposit of the monies into an investment brokerage house, for example, just as there now is direct deposit [of PFDs] into a bank. Representative Rokeberg said he doesn't believes that the APFC should act as a mutual fund for the citizens of Alaska, however. "I think we should work with private industry and investment brokers to encourage people to put this money into long-term use, and their children's money in long- term use, which ... would exceed the perceived potential benefits of receipt of the permanent fund dividend over years," he concluded, saying those are some of the many reasons for offering Amendment 1. Number 1521 REPRESENTATIVE GREEN asked Representative Rokeberg whether he knows for a fact how the Internal Revenue Service (IRS) would treat this. He conveyed concern that the IRS may tax the whole amount, whether it is taken over time or all at once. REPRESENTATIVE CROFT and others mentioned constructive receipt. REPRESENTATIVE ROKEBERG said he hadn't had a chance to check with his accountant. However, he is familiar with deferred compensation plans; as a private contractor over the years, he has constructively deferred income many times for tax purposes. He agreed that it needs to be verified as to whether it would be constructive receipt of a lump-sum payment if one elected to have it deferred over time. To make it work, it may be necessary to stipulate a five-year payout, he added, surmising that arguably that would be more favorable because of the economic impacts of a lump-sum payment. That way, there wouldn't be an election on the part of the recipient. CHAIRMAN KOTT agreed that the latter suggestion would get around the [constructive receipt] problem, if that were the will of the committee. However, that would retain the bureaucracy. "In my own mind, I'd rather sever this if we're going to sever it," he added. REPRESENTATIVE ROKEBERG stated that if the committee wanted to modify Amendment 1 to stipulate a five-year payout because of that concern, he wouldn't have any objection. Number 1631 REPRESENTATIVE DAVIS said he doesn't have any objection to the amendment but has the same concerns that Representative Green had brought up regarding the position of the IRS. The tax impact of the proposal is probably the utmost concern that many people have. If this were an option to mitigate the tax implications, he would approve of it. If not, however, it isn't a viable part of the resolution, he suggested, adding, "It'll be in there, but it will not be enforceable." REPRESENTATIVE JAMES commented that if the state were to go through with this and pay out this amount strictly to the public, she believes the IRS would be involved anyway, because it is likely that the IRS would want to take some first, before anyone else gets it. "Certainly, it's not a public purpose," she added. Number 1684 REPRESENTATIVE CROFT proposed the need to be very sure that it wouldn't be considered constructive receipt before doing it. If a five-year payout were considered constructive receipt, and the IRS asked for taxes up-front on the total amount, a person could receive $5,000 but have to pay $8,000 in taxes the first year. There could be some people very irritated about the effect of Amendment 1. He stated his understanding that there is a difference between a payment schedule that is fairly ironclad - which the IRS would probably consider this - as opposed to a situation where there is some risk involved. He again expressed worry that this would be constructive receipt. REPRESENTATIVE JAMES commented that one could borrow money against it. "It's actually yours," she added. REPRESENTATIVE ROKEBERG remarked that it is advised as year-end tax planning - by almost every "writer of tax code and tax avoidance" - to try to manage income to try to hit the right year, for example. He said he would defer to Representative James, with her accounting background, and to the sponsors. Number 1771 REPRESENTATIVE DAVIS responded that he and Senator Mackie had spoken to a member of the Alaska Society of Certified Public Accountants, who are doing an analysis of the resolution; that question, specifically, is to be addressed by them, but the sponsors haven't received that [analysis] yet. REPRESENTATIVE ROKEBERG surmised that the support of HJR 47 would go up substantially, both within the legislature and the public, if there could be a graduated payout over time. He himself would have a serious problem in supporting this amendment [HJR 47] without some provision for a more staggered payout. "The impacts would be enormous otherwise," he added. Number 1818 SENATOR MACKIE informed members that an accountant had told him that constructive receipt of income would apply here as well. However, he himself thinks that the key work is "elective." If somebody has the ability to elect a five-year payout versus a one- time payment, then that is when the constructive receipt of income applies. A mandatory five-year payout, for example, would be a different situation because there is no choice. Senator Mackie added that he had talked to Representative Rokeberg, and he himself didn't really see a problem with [Amendment 1] because it says "as provided by law," which means the legislature has to change the law to do what Representative Rokeberg wants to do anyway. "And if we don't, ... and the law provides for a one-time payout, then ... it's not that big of a deal," he added. SENATOR MACKIE concluded by saying, "If we were able to give people an option that gave them some tax protection, I, too, would support it. But if it didn't, then I wouldn't." He suggested that until they receive the requested analysis, that is something they will probably have to deal with in the House/Senate Finance Committees, when there is a whole debate about taxes and so forth. Number 1906 REPRESENTATIVE KERTTULA expressed concern that with the payout, no matter how constructed, it would be deemed that a person had the right to get at the money and would, therefore, have to pay the tax. SENATOR MACKIE restated that his accountants had looked at it too. He suggested that if one paid the taxes up-front but "front-loaded" the rest of it, it would be worth far more in 15 years than if it had been received in $1,700 increments. He said people still have to pay taxes on that annual PFD. REPRESENTATIVE KERTTULA asked what would happen if the government set up a fund whereby a person couldn't get at the money for 15 years but had an individual account that the state would invest for people. REPRESENTATIVE JAMES commented that there would be a taxable fund, then. REPRESENTATIVE KERTTULA suggested that wouldn't be the case if it were structured like an annuity, but agreed it would be taxable when it comes out. REPRESENTATIVE JAMES said she isn't convinced totally that it is a preferred public use. The fund itself could be taxable, and then taxable when [individuals] receive it. "I'm not convinced that would pass muster," she added. SENATOR MACKIE responded that, right now, paying out a dividend every year definitely isn't only a public use. REPRESENTATIVE JAMES agreed. SENATOR MACKIE pointed out that this plan not only balances the budget, to his belief, but starts using the fund for a public purchase, "which keeps us away from the IRS jumping down our throats right now, which is what they're ready to do now because we have not used it for a public purpose." REPRESENTATIVE JAMES said she believes the dividend can continue without losing it to the IRS "if we're careful." Number 1973 REPRESENTATIVE GREEN referred to Representative Kerttula's comments and expressed concern that [her suggestion] would create a morass of bookkeeping. He mentioned estate problem for those who died during the 15-year-period and trusts that would exist. He added, "It would have to be contracted out because we wouldn't want to create that kind of a government agency." REPRESENTATIVE ROKEBERG said he is concerned about somebody turning the State of Alaska in for a 20 percent reward of $6 billion from the IRS from improper payment of taxes because of not using the money for public purposes. REPRESENTATIVE JAMES said that was her point. If they set aside this large amount of money to just dissipate to the public, the IRS will be there to get its money off the top. The other part [of the fund], which will be used for a public purpose, will be left alone. Number 2058 REPRESENTATIVE CROFT proposed that perhaps this issue of whether the fund is subject to double taxation, now or under HJR 47, should be addressed in executive session. He said the committee is now having a discussion about possibilities and public policy, but not about the committee's or someone else's legal opinion. REPRESENTATIVE JAMES and CHAIRMAN KOTT agreed. REPRESENTATIVE ROKEBERG took exception to Representative Croft's suggestion about an executive session. He said the public in Alaska should be aware of the very real possibilities of the IRS assessing taxes against the permanent fund. Regarding getting the legal opinions on that from the [APFC], that would be the type of thing that would be handled in executive session, but not the conclusions. REPRESENTATIVE DAVIS referred to concerns expressed by Representative Green at the previous hearing. He brought attention to a letter from Franklin Elder, director of the Division of Banking, Securities, and Corporations, dated March 2, 2000, which addresses those concerns; it indicates the division's belief that they have been very responsive to concerns about scam artists, and it sets forth how the division reacts to scam artists. He noted that the letter had been distributed to members. CHAIRMAN KOTT brought attention back to Amendment 1. REPRESENTATIVE JAMES and several others members stated objection. REPRESENTATIVE CROFT suggested that Amendment 1 be withdrawn and then addressed in the House Finance Committee. REPRESENTATIVE GREEN agreed it would be better handled there. Number 2170 REPRESENTATIVE ROKEBERG, noting that members were all nodding in agreement, withdrew the motion to adopt Amendment 1; it was so ordered. REPRESENTATIVE DAVIS commented, "We share the same concern as Representative Rokeberg. And if it's a legal possibility, we will certainly, I think, strongly consider it." Number 2198 REPRESENTATIVE CROFT made a motion to move HJR 47 from committee with individual recommendations and the attached fiscal note. REPRESENTATIVE JAMES objected. She explained that she has some long-term plans in the House State Affairs Standing Committee, which she chairs; she is awaiting word from the House Finance Committee that those plans will be addressed there. Until then, she isn't sending other plans to them, under her vote. "Besides, it's a dumb bill," she added. REPRESENTATIVE ROKEBERG complimented Representative Davis and Senator Mackie for keeping a discussion going, which he believes is important. He expressed willingness to advance HJR 47 for that reason, although he believes it needs improvement in order to have any chance with the public. REPRESENTATIVE KERTTULA said she would "vote for" Representative James. However, even though philosophically she has concerns about this resolution, she wants to keep up the discussion. CHAIRMAN KOTT said he would echo that: he has difficulty with the resolution in its present form, but the dialogue needs to continue. Furthermore, this is the only plan on the table that is moving. He suggested that the full ramifications would become brought out as soon as the House Finance Committee addresses some financial impacts. From a jurisprudence perspective, he believes that the resolution is legal and constitutional; it is a matter of public policy as to whether the public will buy into it. Chairman Kott requested a roll call vote. A roll call vote was taken. Voting to move HJR 47 from committee were Representatives Croft, Kerttula, Green, Rokeberg and Kott. Voting against it was Representative James. Therefore, HJR 47 was moved from the House Judiciary Standing Committee by a vote of 5-1. ADJOURNMENT Number 2320 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 3:36 p.m.