HOUSE STATE AFFAIRS STANDING COMMITTEE March 7, 2000 8:07 a.m. MEMBERS PRESENT Representative Jeannette James, Chair Representative Joe Green Representative Jim Whitaker Representative Bill Hudson Representative Beth Kerttula Representative Hal Smalley Representative Scott Ogan MEMBERS ABSENT All members present COMMITTEE CALENDAR CONFIRMATION HEARINGS: Personnel Board Charles T. Borg - Anchorage - CONFIRMATION ADVANCED Alaska Public Offices Commission Andrea Jacobson - Ketchikan - CONFIRMATION ADVANCED HOUSE BILL NO. 367 "An Act providing for the revocation of driving privileges by a court for a driver convicted of a violation of traffic laws in connection with a fatal motor vehicle or commercial motor vehicle accident; and amending Rules 43 and 43.1, Alaska Rules of Administration." - MOVED HB 367 OUT OF COMMITTEE HOUSE BILL NO. 292 "An Act adopting the National Crime Prevention and Privacy Compact; making criminal justice information available to interested persons and criminal history record information available to the public; making certain conforming amendments; and providing for an effective date." - HEARD AND HELD HOUSE BILL NO. 324 "An Act requiring written consent by the person who is the subject of the information before releasing personal information contained in motor vehicle records, to comply with 18 U.S.C. 2721; and providing for an effective date." - SCHEDULED BUT NOT HEARD SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 153 "An Act relating to leave for certain state employees; and repealing terminal leave." - SCHEDULED BUT NOT HEARD SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 379 "An Act relating to credited service under the public employees' retirement system for peace officers and fire fighters on leave without pay or receiving workers' compensation benefits because of certain on-the-job injuries." - SCHEDULED BUT NOT HEARD SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 270 "An Act relating to sexual assault and sexual abuse and to payment for certain examinations in cases of alleged sexual assault or sexual abuse." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 317 "An Act relating to recruitment, selection, appointment, and promotion of state employees and the duties of the Department of Administration concerning those and other related functions; and providing for an effective date." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 299 "An Act relating to rates charged in a Pioneers' Home." - SCHEDULED BUT NOT HEARD PREVIOUS ACTION BILL: HB 367 SHORT TITLE: REVOCATION OF DRIVING PRIVILEGES Jrn-Date Jrn-Page Action 2/11/00 2180 (H) READ THE FIRST TIME - REFERRALS 2/11/00 2180 (H) STA, JUD, FIN 2/11/00 2180 (H) INDETERMINATE FISCAL NOTE (ADM) 2/11/00 2180 (H) 2 ZERO FISCAL NOTES (LAW, DPS) 2/11/00 2180 (H) GOVERNOR'S TRANSMITTAL LETTER 2/22/00 (H) STA AT 8:00 AM CAPITOL 102 2/22/00 (H) Scheduled But Not Heard 2/29/00 (H) STA AT 8:00 AM CAPITOL 102 2/29/00 (H) Scheduled But Not Heard 3/02/00 (H) STA AT 8:00 AM CAPITOL 102 3/02/00 (H) Scheduled But Not Heard 3/07/00 (H) STA AT 8:00 AM CAPITOL 102 BILL: HB 292 SHORT TITLE: DISCLOSURE OF CRIMINAL HISTORY RECORDS Jrn-Date Jrn-Page Action 1/21/00 1954 (H) READ THE FIRST TIME - REFERRALS 1/21/00 1954 (H) STA, JUD 1/21/00 1955 (H) ZERO FISCAL NOTE (DPS) 1/21/00 1955 (H) GOVERNOR'S TRANSMITTAL LETTER 1/21/00 1955 (H) REFERRED TO STATE AFFAIRS 2/22/00 (H) STA AT 8:00 AM CAPITOL 102 2/22/00 (H) Scheduled But Not Heard 2/29/00 (H) STA AT 8:00 AM CAPITOL 102 2/29/00 (H) Scheduled But Not Heard 3/02/00 (H) STA AT 8:00 AM CAPITOL 102 3/02/00 (H) Scheduled But Not Heard 3/07/00 (H) STA AT 8:00 AM CAPITOL 102 WITNESS REGISTER CHARLES T. BORG, Appointee to the Personnel Board Anchorage, Alaska POSITION STATEMENT: Testified as appointee to the Personnel Board. ANDREA JACOBSON, Appointee to the Alaska Public Offices Commission Ketchikan, Alaska POSITION STATEMENT: Testified as appointee to the Alaska Public Offices Commission. ANNE CARPENETI, Assistant Attorney General Criminal Division, Department of Law PO Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Provided department's position and answered questions regarding HB 367. KEN BISCHOFF, Director Division of Administrative Services Department of Public Safety PO Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Provided department's position and answered questions regarding HB 292 ACTION NARRATIVE TAPE 00-16, SIDE A Number 0001 CHAIR JEANNETTE JAMES called the House State Affairs Standing Committee meeting to order at 8:07 a.m. Members present at the call to order were Representatives James, Green, Hudson, Kerttula, Smalley and Ogan. Representative Whitaker arrived as the meeting was in progress. Number 0182 CONFIRMATION HEARINGS CHAIR JAMES announced the committee would consider one nominee for the Personnel Board and one nominee for the Alaska Public Offices Commission. They would not vote for the nominees but would pass them out of committee for full consideration of the House and Senate. Personnel Board Number 0277 CHARLES T. BORG, Appointee to the Personnel Board, came forward to testify, saying he was 61 years old with 30 years of residency in the state of Alaska. Born and raised in Washington State, he went to college at Eastern Washington University. He noted that after graduating from college in 1960, he entered the Army and spent a career there with various assignments in Europe, Vietnam, the Lower 48 and Alaska. He commented that he had retired from the Army in 1980 and entered state government, serving in the Department of Military and Veteran's Affairs. He mentioned he had left that assignment in 1990, and in 1991 he entered the health care field, serving as a health care administrator for the Department of Defense medical facilities in the Veteran's Administration in Anchorage. He indicated he had retired in May 1999, and soon after retirement was asked to serve on the state Personnel Board. He had accepted, and his acceptance had brought him before the committee for confirmation. MR. BORG informed the committee that he would like to serve because he thinks he can bring his experience, professional background and long number of years in Alaska to the board. He emphasized that one of his strengths is the ability to hear both sides of an issue and make impartial decisions. He remarked that he has a history of serving the people of Alaska and he wants to continue. Number 0536 REPRESENTATIVE GREEN said that according to Mr. Borg's dossier, from 1970-1976 and 1982-1991 Mr. Borg had planned and coordinated certain operations. Representative Green asked to how those operations fit with duties germane to the Personnel Board. MR. BORG answered that from 1970-1976 he was on active military duty stationed in Alaska and was responsible for all army recruiting in the state. Because he had to travel so much in the state, he felt he had grasped a good feel for the people of Alaska. Number 0660 REPRESENTATIVE GREEN said he was looking for a tie between military experience and Personnel Board work. He asked how Mr. Borg's background will fit "people problem" responsibilities that would be incurred as a member of the Personnel Board. MR. BORG answered that from 1970-1976 and 1982-1991 he dealt with many people who were involved in issues ranging from grievances to ethics problems, and he felt that he had dealt fairly with those personnel matters. Number 0745 REPRESENTATIVE HUDSON commented that the two qualities of ethics and fairness are appropriate for a candidate seeking to serve on the Personnel Board. REPRESENTATIVE SMALLEY mentioned that Mr. Borg's work-related services say a great deal in Mr. Borg's favor. REPRESENTATIVE OGAN asked if Mr. Borg had worked in the private sector. Number 0838 MR. BORG replied in the affirmative. He said between 1980 and 1982, before he entered state government, he had worked in the private sector for Robinson Millwork in Wasilla. Number 0862 REPRESENTATIVE HUDSON moved to forward the confirmation of Mr. Borg. There being no objection, it was so ordered. Alaska Public Offices Commission Number 0900 ANDREA JACOBSON, Appointee to the Alaska Public Offices Commission (APOC), testified via teleconference from Ketchikan. She said she has been a police officer with the Ketchikan Police Department for 19 years and had moved to Ketchikan in 1981. She explained that she would like to be a board member because it is challenging and she believes in making politics fair for everyone. She noted that improving regulations sounds like a real challenge to her. REPRESENTATIVE OGAN said that during the last [gubernatorial] election he and many other people felt frustration at the inability of the APOC Board to make a decision regarding a certain gubernatorial candidate. He asked Ms. Jacobson if she would deal expeditiously with a glaring problem concerning a candidate's forthrightness or would wait until after an election was finished. Number 1070 MS. JACOBSON replied that the APOC Board is mandated to deal with problems expeditiously, but in the case which Representative Ogan cites, the candidate himself had requested delays because the candidate's attorney lived out of state. She stated that those delays caused the case before the board to drag. REPRESENTATIVE OGAN emphasized that from his perception it seemed like a lot of foot-dragging on the part of the board, and he would hope for a different performance from the board. Number 1141 MS. JACOBSON observed that everybody is treated the same way, and the Office of the Attorney General speaks for delay requests. She informed the committee that the board itself had rejected several requests for delay, and one time when the board did meet to discuss issues, the candidate did not come before the board as scheduled. She acknowledged that the process is slower than people want it to be. REPRESENTATIVE OGAN reiterated that the people were very poorly served by the APOC Board in that instance. Number 1203 REPRESENTATIVE GREEN inquired as to what her feeling is about the review made by APOC of the filings, some of which become quite lengthy during campaigns or conflicts of interest. He asked if she thinks the APOC Board should review for completeness and accuracy or should merely act as a filing agency. MS. JACOBSON replied that the APOC Board has been working hard to revise some regulations to make them clearer and define things. She stated that the APOC people do catch quite a few filing errors and correct them before the errors reach the filing stage. She noted that the agency now has a new computerized filing system that allows for more disclosure in a shorter time period. She commented that with technology and stricter regulations she thinks things will improve a lot. Number 1320 CHAIR JAMES asked whether Ms. Jacobson could see any obvious changes that might be implemented. Number 1360 MS. JACOBSON replied that in terms of disclosure regulations there are some things that trouble the board regarding client privacy for attorneys and things like that. The APOC Board is working on that to try to come up with something better. She noted that for some fields of work, source-of-income confidentiality could pose a different standard for the candidate than it would for someone else. MS. JACOBSON explained that she has noticed that the legislature cut the budget for the agency, which has affected APOC's ability to have certain kinds and number of meetings. She commented that APOC is supposed to meet four times a year but now meets three times due to budget cuts. Number 1428 CHAIR JAMES observed that Ms. Jacobson's reference to client privilege was interesting since that also troubles Chair James. In addition, it troubles her that people who are honorable, interested, and willing to work as a legislator simply will not submit to the many rules they must abide by to become elected. She stated that there should be some way to identify people as being honorable without requiring them to divulge so much of their personal information, but she does not know how to fix the problem. MS. JACOBSON said that is a problem that APOC has been working on, but she recognized that once APOC comes up with an idea, it will take a while before it is enacted. She said that she also would like to see the average person be able to run for office. Number 1636 REPRESENTATIVE HUDSON asked how the time allocation to this board fits with her daytime job. He asked if she was able to do both jobs handily. MS. JACOBSON answered in the affirmative. She noted that the benefit now is that she has been a police officer for so long that she accrues plenty of vacation time and uses some of her vacation days to care for APOC business. Number 1696 REPRESENTATIVE HUDSON asked how many trips to Anchorage Ms. Jacobson has made to fulfill APOC Board duties. MS. JACOBSON answered that she had made three trips, in March, June and November. Typically the meetings are held Wednesday through Friday, so she misses about four days from police work for each APOC Board meeting. She noted that she has attended two half-day teleconference meetings, but since teleconferences fall on her days off [from police work], it has not been a problem for her at all to attend to APOC Board duties. Number 1776 REPRESENTATIVE HUDSON moved to forward the confirmation of Ms. Jacobson. There being no objection, it was so ordered. HB 367-REVOCATION OF DRIVING PRIVILEGES Number 1821 CHAIR JAMES announced the next order of business is HOUSE BILL NO. 367, "An Act providing for the revocation of driving privileges by a court for a driver convicted of a violation of traffic laws in connection with a fatal motor vehicle or commercial motor vehicle accident; and amending Rules 43 and 43.1, Alaska Rules of Administration." ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, said the purpose of HB 367 is to improve the safety of drivers on our highways. She noted that earlier this year a gentleman had called and talked to the department about a situation that caused the department to think about fatal accidents on Alaska highways. The gentleman's son had been killed in an automobile accident caused by bad driving on the part of someone else; however, the driving was not so bad as to be labeled criminal driving. She commented that the bad driving did result in a traffic violation citation, but current motor vehicle laws do not provide for any license revocation under these circumstances. MS. CARPENETI indicated that motor vehicle laws do provide for license revocation if a person is convicted of certain criminal conduct in connection with driving a motor vehicle, but that is not the case for traffic violations that result in a death on the roads. Therefore, HB 367 was drafted to address the problem by revoking the guilty individual's license for a year's time if the court finds by a preponderance of evidence that the person was driving a motor vehicle involved in a fatal accident and that violation of traffic laws contributed to the fatal accident. She informed the committee that HB 367 provides for license revocation concurrent to any other possible revocations that might apply; it also allows the court to provide a limited license if the court finds that the person needs a limited license for earning a livelihood and that granting the limited license would not endanger the public. Number 1976 REPRESENTATIVE OGAN asked if the administration supports HB 367. MS. CARPENETI replied in the affirmative. REPRESENTATIVE OGAN inquired as to the "lesser included offense" issue. MS. CARPENETI answered that she did not know if there would be a lesser included offense for a traffic violation. REPRESENTATIVE OGAN said he had introduced a bill very similar to HB 367 four years ago after a dear friends's two sons were killed in a traffic accident caused by irresponsible passing on the part of another young person in a different vehicle. He noted that the bad driver who had caused two deaths was fined only $300 and six points off his license. He explained that his bill had died in the Judiciary Committee because of the lesser included offense. He commented that the department had told him that if a jury could not convict a driver on a felony charge, the jury could not convict because of bad driving, which is a lesser included offense. He indicated he is mystified as to the inconsistency of the Department of Law because HB 367 does not address the issue of lesser included offense, and yet that clause was the failing factor of his previous bill dealing with the same subject. Number 2129 MS. CARPENETI explained that the Department of Law's position regarding Representative Ogan's bill was that making a crime out of non-criminal negligence conduct was not viable. She noted that HB 367 does not establish a new offense but is a license revocation Act, as a way of addressing bad driving, that does not require a culpable mental state high enough to justify criminal prosecution. REPRESENTATIVE OGAN asked why the Department of Law had not suggested something that would resolve the problem instead of testifying against his legislation. He emphasized that he is sure other people have been killed [because of unpunished bad driving habits]. Number 2238 MS. CARPENETI replied that she guessed that when Department of Law was reviewing Representative Ogan's bill, the department was concerned about the criminal aspects of charging somebody whose culpable mental state was only civil negligence. She said she was sorry that the department was not creative enough to think of a solution at that time. CHAIR JAMES commented that she is happy with HB 367 but recognizes that the gentleman whose son was killed might have received some satisfaction if Representative Ogan's bill had passed four years ago. She acknowledged that when people are testifying for or against a bill, they usually are not thinking about solutions to get the bill passed but are thinking about their arguments for or against it. She said there have been times in the eight years she has served in the legislature when the administration has offered solutions for drafting bills correctly. Number 2346 MS. CARPENETI noted that when adopting laws for a crime for certain conduct it is a different mind set than for a license revocation. CHAIR JAMES said she understood that. She surmised that probably the Department of Law was reviewing specific language in Representative Ogan's bill and what it was doing, as opposed to the purpose for filing the bill. She commented that it was unfortunate that Representative Ogan's bill did not pass, and suggested that in the future when someone objects to a bill, the sponsor can ask for suggestions as to ways to fix the bill. Number 2398 REPRESENTATIVE OGAN asked if the lesser included offense [clause] will not be a factor in felony cases. MS. CARPENETI answered that HB 367 does not relate to a crime. Rather, it is a license revocation for a person who gets convicted of a traffic violation that results in death. REPRESENTATIVE OGAN said he wants to make sure, however, that a judge will not require "lesser included offense" in HB 367. CHAIR JAMES asked whether license revocation is an administrative decision or goes to trial. Number 2477 MS. CARPENETI replied that HB 367 is a court revocation. CHAIR JAMES asked whether, in a court revocation, there is a trial or it is the judge who decides about the preponderance of evidence. MS. CARPENETI replied that a judge decides by preponderance of evidence because HB 367 is a court revocation. She acknowledged that one effect of HB 367 is that a person who contests the traffic citation will have a right to a jury trial since there is a possibility of loss of a valuable license. In answer to Representative Ogan's previous question, she explained that she personally is not familiar with judges instructing on lesser included offenses for traffic violations and has never seen that happen. Usually, she added, lesser included offenses involve crime, and HB 367 is not talking about crime but about bad driving and traffic violations that do not rise to the level of criminal conduct. Number 2526 REPRESENTATIVE OGAN asked how juries are instructed; for example, if they cannot convict on (a), then can they go to (b)? He asked whether that scenario could happen with HB 367. Number 2541 MS. CARPENETI replied that if a prosecutor believes he/she can prove that this person committed a crime by evidence beyond a reasonable doubt, that person is formally charged. That person enters a plea of not guilty, the trial proceeds, and evidence is gathered. However, if evidence comes into the trial in a way that was not anticipated by the prosecution, the prosecution might ask for instructions on a lesser included offense if elements of a lesser offense are included within the elements of the higher offense. She noted that the defense lawyer may request instructions on "lesser included" because he/she may believe that the person has a chance of acquittal on a less serious crime and getting a better result for a lesser crime. If the judge is willing to give "lesser included offenses," he/she uses a variety of factors to decide whether there is enough evidence that would make it logical to give those instructions. Number 2615 REPRESENTATIVE OGAN said he understood that there is a possibility that a defense attorney may ask the judge to convict a person at a lesser charge if the person cannot be charged at the higher criminal level. MS. CARPENETI offered her opinion that a defense attorney could make the argument that his/her client is not guilty of any crime and that the court should just consider a citation, but that would be a very unusual case. REPRESENTATIVE GREEN commented that he had spent time with a judge one day and heard four driving-without a-license cases, all associated with driving under the influence of alcohol (DWI); two of the four cases involved someone caught for the fifth time driving without a license. All four had plea-bargained to some lesser offense. He asked what HB 367 will do to ensure that those kinds of people will not drive without a license, since drunks are allowed to drive without licenses on multiple occasions. Number 2698 MS. CARPENETI answered that HB 367 provides for revocation of a license. If a person is caught driving with a revoked license, there is a misdemeanor offense. If a person's license is revoked for DWI and that person drives again and is caught, then that person can be charged with driving with a revoked license, which carries a mandatory minimum of ten days in jail. REPRESENTATIVE GREEN pointed out that the two people who had been caught five times obviously are going to drive regardless of what HB 367 legislates. He asked if anything in HB 367 has teeth in it other than revocation of a license. Number 2739 MS. CARPENETI replied that HB 367 does not address DWI situations because driving with a revoked license is a misdemeanor crime. Rather, HB 367 deals with driving with traffic violations. If a person's license is revoked, then one would hope that he/she would not drive. She noted that a person caught driving with a revoked license could be charged with a misdemeanor and put in jail. Therefore, HB 367 does have teeth in essence. REPRESENTATIVE GREEN reiterated that the person could plea bargain down. He said he shares Representative Ogan's frustration and does not believe HB 367 does anything [useful]. Number 2769 REPRESENTATIVE KERTTULA said she thinks HB 367 is an interesting idea because she had not realized that [bad driving was not punished] already. She asked if Ms. Carpeneti could give any other instance where causation is so attenuated because HB 367 characterizes "contribution" as part of the violation, which seems a really low standard. She wondered if there was any other violation of such low standard in that it is just a contribution, not a direct cause of what happened. MS. CARPENETI answered that HB 367 provides for license revocation under [bad driving] circumstances, it is not a causation. She noted that a traffic violation has to be proved beyond a reasonable doubt, just as for any violation or crime, and then the court looks to a preponderance standard to ascertain whether the traffic violation contributed. Number 2817 REPRESENTATIVE KERTTULA said she understood that, but even in traffic violations, how can a contributor be held responsible for what happens? She asked if other traffic violation laws were on the books wherein a person could be held accountable for a contribution sufficient enough for license revocation. MS. CARPENETI answered that HB 367 would apply to any violation involving a moving vehicle. REPRESENTATIVE KERTTULA indicated she could foresee responsibility for an accident getting moved on down the line. For example, she described a scenario where she had just contributed to something [an accident] but was not driving the car that actually hit someone. She again asked if there is some other traffic violation that is so removed from cause and yet still charged as a violation. Number 2860 MS. CARPENETI replied that invocation of HB 367 would require a citation on the part of a police officer. REPRESENTATIVE KERTTULA said [that under] HB 367 a very removed sequence of events can still result in revocation of license. CHAIR JAMES said she had actually executed a "360" [degrees] in the middle of an icy road, so she understood what Representative Kerttula was referring to in regard to contributing to an accident. Fortunately, no other car was there at the time, so it did not result in an accident; however, she suspected that if a policeman had been present she would have received a citation. She reiterated that purely and simply because of the conditions of the road a person could be held responsible under HB 367. She asked if that is the true intent of HB 367. TAPE 00-16, SIDE B Number 2969 MS. CARPENETI acknowledged that there are such things as traffic accidents where no one is cited. However, if a person does get cited for a traffic violation, the violation must be proven beyond a reasonable doubt. The person will have notice and opportunity to be heard, will have a lawyer appointed, and will have a right to jury trial because of the possibility of loss of a valuable license. If a person is convicted, the court will have to find by a preponderance of evidence that the traffic violation contributed to a death. Therefore, Ms. Carpeneti said, she thinks a person will be afforded due process of law, and, in terms of consequences, it is very serious to drive with a revoked license. Number 2880 CHAIR JAMES asked whether the penalty would be different if a person performed a "360" in the road, was observed by a police officer, and was cited, but no death resulted. MS. CARPENETI replied in the affirmative. She reiterated that the point of HB 367 is that traffic fatalities happen sometimes as the result of bad driving, and not necessarily because of criminal driving, criminally negligent homicide, DWI, or other criminal behavior. Nevertheless, for the safety of the driving public, people who drive badly and cause the death of another should probably not be driving for a while. Number 2835 REPRESENTATIVE GREEN reiterated that the two offenders he had cited earlier were plea-bargained down. He emphasized that the judge actually admitted that plea bargains are done because the prosecuting attorney is so busy that the attorney does not have time to adequately prepare for the cases ahead; therefore, the attorney plea bargains to something simpler. Representative Green said that is a travesty to him, and he had even talked to the judge afterwards about it. He said HB 367 would affect law- abiding citizens instead of the people who need to be stopped. He expressed frustration at this kind of "slap on the hand" [legislation]. In response to Ms. Carpeneti's remark that she would have to know more about the situation, Representative Green said he would tell her the judge's name after the committee meeting. MS. CARPENETI acknowledged that there are some cases where plea bargaining can be very frustrating to everybody concerned, and probably as frustrating to the prosecutor because the court tries to charge people with the right level of crime and to have them convicted. Number 2762 REPRESENTATIVE HUDSON remarked that he is trying to figure out how HB 367 will make roads safer. Would it serve as a threat of added punishment, or remove somebody from the roads who did not commit a crime but who contributed to an accident that resulted in death? If HB 367 is simply elevating punishment to a law- abiding citizen who happens to be a contributor to a fatal accident, he said he is having a hard time finding any public good in it. He asked what is cured by HB 367 and how people will know that their licenses can be revoked if they become a contributor to a fatal accident. Number 2658 MS. CARPENETI answered that she thinks people will eventually learn that if they commit a traffic violation, are cited and convicted of an accident that results in death, they have the potential of losing their license. That threat is important in encouraging people to be more careful. She reminded the committee that HB 367 requires that the cause [which results in death] of the traffic citation is what results in license revocation. REPRESENTATIVE HUDSON quoted from paragraph two of Governor Knowles' letter to Representative Porter, dated February 10, 2000: "Regardless of whether their conduct is criminal, drivers whose traffic violations contribute to an accident causing the death of...." He pointed out that it does not say "causing the death" but says that even if they "contribute to" it, they could lose their license and be elevated to this higher penalty. Number 2593 MS. CARPENETI explained that HB 367 provides for a violation of traffic laws for which a person had to have a conviction. Therefore, a person would have to be convicted of a traffic violation that contributed to the accident. REPRESENTATIVE HUDSON asked if it is a conviction that triggers HB 367. MS. CARPENETI answered that HB 367 requires a conviction beyond a reasonable doubt. REPRESENTATIVE SMALLEY asked Ms. Carpeneti if she could identify situations under which a judge would grant a limited driving privilege as described in Governor Knowles' letter, previously cited, in the third paragraph where it says "to grant limited license privileges if it determines driving is critical to the person's livelihood and will not pose a danger to the public." Number 2548 MS. CARPENETI replied that in just about every license revocation statute, judges do have the authority to grant a limited license sometimes after a certain period of time. Such a limited license is usually granted when there is no public transportation to the person's work and the person would lose his/her job if unable to get to work. A limited license would allow the person to drive to and from work during certain hours of the day, and only at those times. REPRESENTATIVE SMALLEY asked if the person might be a single parent or the only parent working. Number 2514 MS. CARPENETI answered in the affirmative. She said judges would consider circumstances, for example, if no one else is able to drive that person to work or if there is no bus service. She noted that limited licenses are granted because if the person is left without the ability to work, then their family does not have an income which, in turn, creates more problems. However, a judge cannot grant a limited license unless he/she is convinced that the conditions on the license - to and from work during certain hours of the day - would still protect the public. Number 2492 REPRESENTATIVE SMALLEY inquired as to Ms. Carpeneti's perception regarding decline in revenue to the Public Defender's Office. He asked if HB 367 would cause difficulty with case flow. MS. CARPENETI replied that numbers affected by HB 367 are relatively small. The Department of Law had reviewed the number of fatal accidents from 1996 to 1998 and found that there were about six to eight cases where there was a traffic citation and the traffic violation was the cause of a fatal accident. Number 2438 REPRESENTATIVE OGAN said he thinks HB 367 does have some public good. His friends whose two sons were killed were left with the feeling that their sons' lives were valued at only $300 by the state. Therefore, maybe the public good is that if the reckless driver had lost his license, he might have told the driver to slow down the second time they were out driving recklessly. He noted that at least HB 367 places some tangible consequences for reckless driving and taking lives. Number 2258 REPRESENTATIVE HUDSON asked Representative Ogan if the reckless driver who caused the death of two boys caused the accident or contributed to the accident. REPRESENTATIVE OGAN answered that the reckless driver directly caused and was cited for the accident. REPRESENTATIVE HUDSON asked if someone could be penalized under HB 367 by simply contributing to, not necessarily causing, an accident. Number 2208 REPRESENTATIVE GREEN cited page 2, lines 21 and 22, where it says "limitation can be placed on the license that will enable the person to earn a livelihood without danger to the public." Since the person driving only to and from work is very likely doing so during rush hour, Representative Green asked if there is any judge who can say that by allowing this person to drive, there is no danger to the public. MS. CARPENETI replied that most statutes that allow a limited license state "without excessive danger to the public." When the Department of Law was reviewing HB 367, the administration thought "excessive" was too much danger. Number 2158 REPRESENTATIVE GREEN reiterated that a judge in all logic cannot say "there is no danger to the public." MS. CARPENETI answered that much depends upon the prior driving record of the person seeking a limited license. REPRESENTATIVE GREEN emphasized that the prior driving record has already been established. MS. CARPENETI replied that she meant a driver who had not previously had any bad points against his/her driving record. She indicated that it had seemed to the Department of Law when they reviewed HB 367 that a judge should be able to say a limited license does not cause danger to the public under these circumstances. Number 2123 CHAIR JAMES mentioned that she found it difficult to understand why Representative Ogan's accident case was not found to be criminal, and that she believes that in most fatal accidents someone is extremely guilty of making a wrong decision in the driving process. Perhaps the person was driving too fast or drinking, and sometimes she believes there are two people at fault. She indicated she would support HB 367 but, like Representative Hudson, is not sure that HB 367 will make roads safer. Number 1960 REPRESENTATIVE OGAN noted that in the case he had been discussing, there was not enough evidence to prosecute criminally because the driving was not reckless enough to prove negligent homicide, and no alcohol was involved. He added that HB 367 would be a message to those kinds of people. Number 1824 REPRESENTATIVE KERTTULA made a motion to move HB 367 out of committee with individual recommendations and attached zero fiscal note. REPRESENTATIVE HUDSON objected. A roll call vote was taken. Representatives Kerttula, Ogan, Smalley and James voted in favor of moving the bill. Representatives Green and Hudson voted against it. Representative Whitaker was absent. Therefore, HB 367 moved from the House State Affairs Standing Committee by a vote of 4-2. HB 292-DISCLOSURE OF CRIMINAL HISTORY RECORDS Number 1716 CHAIR JAMES announced the next order of business is HOUSE BILL NO. 292, "An Act adopting the National Crime Prevention and Privacy Compact; making criminal justice information available to interested persons and criminal history record information available to the public; making certain conforming amendments; and providing for an effective date." KEN BISCHOFF, Director, Division of Administrative Services, Department of Public Safety (DPS), said he was speaking for HB 292 to provide some background. Like many state legislatures, he added, the Alaska State Legislature over the years has tried to address sensitive employment and licensing by authorizing background checks for the protection of children; this occurs for people working as school bus drivers, school teachers and day care center providers, and also occurs for the protection of dependent adults. He noted that AS 12.62 is the primary Alaska Statute regarding the release of criminal history record information. MR. BISCHOFF explained that there are two levels - state and national - to doing criminal history checks. Thus HB 292 proposes having Alaska adopt a national compact, which all 50 states in the near future plan to adopt to facilitate the exchange of national criminal history record checks for these purposes. He commented that the department currently does about 20,000 checks of this nature every year, so this is a fairly significant business. With adoption of the compact, he envisions that the department will also get some workload related to other states, just as those states will get some of Alaska's queries; therefore, it is a reciprocal exchange and agreement. He mentioned that it is a standard way of doing business nationally and will provide for much more complete national criminal history checks because a significant percentage of state-level information does not reside at the national level. For example, 40 percent of Oregon's criminal records are not indexed at the national level, and this compact would allow Alaska to get access to those additional records. MR. BISCHOFF indicated the Federal Bureau of Investigation (FBI) has a rule of thumb that approximately one in five criminals has a record in more than one state. He informed the committee that there are 55 million criminal records nationally. This compact, once adopted by the country, will link all 50 state criminal history record repositories and the FBI repository. He urged the committee's support for HB 292. Number 1560 CHAIR JAMES inquired as to the status of the other states in joining the compact. MR. BISCHOFF replied that as of January [2000], Montana, Nevada, Georgia, and Florida had ratified the compact. Half a dozen states are introducing legislation this year, and a larger number of states are slated to introduce legislation in 2001. He explained that he has personally been involved in this national compact issue since about 1988, and it has been in the works - being developed jointly with the FBI and various criminal justice information groups across the country - since the mid-1970s. Finally, he added, Congress passed the Crime Identification Technology Act a couple of years ago, and now some states are positioning themselves to adopt this national compact. Number 1490 CHAIR JAMES asked what cooperation Alaska has with Canada. MR. BISCHOFF replied that this compact will not affect criminal record checks for civil purposes. However, the department does have access to the Canadian police information system for law enforcement or criminal justice purposes, and the department exchanges motor vehicle, stolen property, missing persons, and wanted person information. REPRESENTATIVE GREEN asked how much return for the money the DPS will realize by joining the national compact. He also asked how the national compact differs from the parole compact currently being negotiated. Number 1411 MR. BISCHOFF answered that he is not familiar with the parole compact. However, the title indicates to him that it deals with criminal justice, while HB 292 speaks to a civil purpose; therefore, the two are not comparable. The DPS is trying to provide access to criminal history records for regulatory agencies and employers authorized by statute in order to screen employees and license applicants. MR. BISCHOFF pointed out that the department had submitted a zero fiscal note with HB 292. Already a fair amount of preparatory work has been done in regard to HB 292, and in the long run, cost to the agency will be a "wash." He noted that preliminary work has been necessary because nationally the criminal records data base is being decentralized. He explained that when the department receives a first-time arrest, the department submits a fingerprint card to the FBI; then the FBI runs a search in their system and a federal identification number will be established. The Interstate Identification Index (III) referred to by HB 292 will show the federal identification number and Alaska's identification number for that person. Consequently, if that person goes to Florida and commits a crime, the same process will repeat; however, a fingerprint card only has to be submitted once because the person's identification is in the III system. Anyone who queries the III system will know there is a record in Alaska and Florida on that person; therefore, some work will be saved and the benefit will be more complete, timely information. Number 1287 REPRESENTATIVE GREEN indicated he disagreed with Mr. Bischoff that there is no comparison between the parole compact and the III system because in both cases they are compacts for information from other states. He emphasized that whether a parolee is civil or criminal, there is information to be gained by belonging to a compact, but other states are not supporting the compact. He asked what kind of information the state is providing for a prospective employer that is not already available through the FBI. He said it seems that if the information is important, the FBI would already have it. MR. BISCHOFF acknowledged that since the early '60s the FBI has believed in keeping important information in a national database. However, the problem that evolved over time was one of workload and of human nature. Before the electronic age, people who were arrested went to a booking facility and were fingerprinted. Two or three sets of fingerprints were required - for the state system, the national system and the local arresting police department. He recognized that human beings being what they are, there were quality assurance problems: sometimes the second and third set of cards did not get created, and the best set of cards that came into the state repository was retained at the state level and often not forwarded to the FBI. As a consequence, the national repository is not complete. For example, before Oregon joined the III system, almost half of their records had not been indexed at the national level. Furthermore, five million California DWI records are not indexed and would be available only through a III system query to California. So, if the goal of HB 292 is to have a regulatory agency or employer make an informed decision, they need complete information, as provided by HB 292. Number 1089 REPRESENTATIVE GREEN said it sounds as if Alaska would provide all its information but Oregon and California have only half of their information available; thus Alaska is not getting quid pro quo. MR. BISCHOFF said that is exactly why the department wants to join the compact, because it will allow the department to search the databases of Washington, Oregon, Virginia and other states - an ability the department does not currently have. CHAIR JAMES asked how the department searches databases. MR. BISCHOFF replied that the department must be a member of the compact to search other state databases for civil purposes, and the department is hoping that the majority of states sign on to the compact because it is very important. Number 1026 REPRESENTATIVE SMALLEY noticed that certification of teachers is on the list of queries that could be made to the III system. He inquired as to the cost of joining the compact and whether there would be additional licensure fee increases as a result of these costs. MR. BISCHOFF answered that the department has submitted a zero fiscal note with HB 292 because there would be no immediate change in cost. Once implemented, it would be a break in terms of future cost increases. REPRESENTATIVE SMALLEY stated that he has been a certificated teacher for many years in the state, and when fingerprinting was required, teacher certification fees increased as a result of background checks. He asked if Mr. Bischoff was suggesting that later on there could be an additional increase as a result of costs. Number 0937 MR. BISCHOFF replied no, not as a result of implementing HB 292, because once a majority of the states are signed on to the national compact, it will allow the nation to process requests electronically. Currently, the department is required to do applicant searches for teacher certification, which entails preparing fingerprint cards, sending the cards by mail, tracking the cards, and waiting four to eight weeks for turnaround [results]. The FBI and the department are both upgrading their computer systems. Two years ago, the legislature had provided operating funding for the state to join the Western Identification Network. The department is in the process of completing that upgrade, which will allow them to electronically send fingerprints to the FBI; that in itself will be labor saving. Future cost increases depend on how the law changes, but information system improvements should dampen the need for cost increases. Number 0805 REPRESENTATIVE SMALLEY commented that there is a great deal of difference between an arrest and a conviction. He mentioned the book 1984 and said he saw this fear of "Big Brother" out there. MR. BISCHOFF replied that the key to managing [that fear] and the individual's right to privacy - which is in statute and the constitution at both the state and national levels - is carefully considered by the compact. People have the right to privacy, but what does the Division of Family and Youth Services (DFYS) do if a person has four arrests and no conviction? He suggested the way to guard against the scenario is to establish a body of law that the legislature passes giving the [DFYS] division access to private information. The [DFYS] division should only use the information for the purpose intended and not disseminate it for any other reason. MR. BISCHOFF commented that the [DFYS] division has to adopt its own statutes or regulations that govern that use. He believes information control should be governed through regulatory agencies in order to make sure that violations or inappropriate release of information does not happen and, if it does, there is a penalty. He reiterated that his department operates under AS 12.62 and there are penalties for inappropriate release. Number 0615 REPRESENTATIVE KERTTULA asked if the FBI currently tracks acquittals or accusations. MR. BISCHOFF answered that the FBI gets whatever the department provides to them. For example, when the department receives an arrest from the Anchorage Police Department (APD), the APD enters that information through its system and it comes to the DPS's system. Hopefully, the arrested person is taken to a booking facility where fingerprint cards are taken. Next, he added, the fingerprint cards are sent to his department so that the department can confirm the identity of that individual and update the criminal subsystem for the booking portion. Assuming all that information is complete, then an electronic message is sent to the FBI to update its national system; if the person is a first-timer, a fingerprint card is sent to the FBI also. Then later, going through the judicial process, the department receives court judgments in hard-copy form, which are entered into the [state electronic] system and [sent] on to the FBI to update its records. Number 0495 REPRESENTATIVE KERTTULA directed attention to page 4, Section 6, lines 13-17, saying it looks like the department would receive, under the compact, reports and accusations. She asked whether that broadens HB 292. MR. BISCHOFF replied that Section 6 was a definition to describe what determines criminal justice actions. REPRESENTATIVE KERTTULA asked if this is information that the department would receive. MR. BISCHOFF replied in the affirmative. REPRESENTATIVE KERTTULA asked if the department could receive information about accusations. Number 0382 MR. BISCHOFF answered that he did not see the word "accusation" in [Section 6]. However, an "accused person" is a person who has been arrested for a crime, so there would have to be a specific arrest and fingerprint card to support that. REPRESENTATIVE KERTTULA said [Section 6] also says that "criminal justice" includes activities relating to the detection ... of accused persons" and she wonders how that will work under HB 292. MR. BISCHOFF replied that primarily that would be through biometric identification, principally fingerprints. Number 0309 REPRESENTATIVE OGAN quoted from Governor Knowles' letter dated January 18, 2000, to Speaker Porter, as follows: "How do we achieve the delicate balance when releasing personal information between individual rights and the need to protect the public?" He asked for a definition of "individual rights" and how the department carefully walks the fine line. MR. BISCHOFF answered that he had prepared a summary of his remarks and quoted as follows: "House Bill 292 does not: change who has access to criminal justice information, state or national. Requestors of this information will still require a basis authorized in law to receive this information." In other words, he stated, unless the legislature gives authorization for release of information, the department will not release the information. REPRESENTATIVE OGAN reiterated that individual rights are guaranteed by the Alaska State Constitution but are not defined anywhere in statute as far as he knows. He said he believes in the fundamental civil right that a person is innocent until proven guilty. Consequently, a few areas in HB 292 trouble him. For example, he directed attention to page 4, line 2, relating to definitions of the compact, and quoted: "identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, or release ...." He noted that sentencing, correctional supervision or release means a person has been adjudicated, now has a record, and has been proven guilty of something. Nevertheless, under HB 292 a person is considered guilty just because he/she has been arrested, and Representative Ogan said he feels paranoia about the government keeping this long list of anybody who has ever been suspected of doing anything. TAPE 00-17, SIDE A Number 0107 MR. BISCHOFF replied that the only information that will be available through this compact is fingerprints, meaning that an arresting officer had to have probable cause to arrest a person, take them to booking facilities and get his/her fingerprints. This procedure is not based upon speculation. He noted that a standard has to be applied in order to make an entry into the system. It is true that not all arrested people are found guilty, and the record would reflect the court disposition, the judgment of "not guilty." Nationally, he explained, all criminal history systems retain [the court disposition] as a valid piece of criminal history information. Some states get a little more sophisticated for employment and licensing purposes in terms of sealing the record. He envisions that the legislature could consider sealing the record at some later time, after passing HB 292, but from a national standpoint, all 50 states have participated in development of the compact. He reiterated that the department would not be notating records with hearsay because the standard for HB 292 is fingerprint-based in order for the department to positively identify an individual. Number 0276 CHAIR JAMES said she resists having people held responsible for something for which they were arrested but not found guilty. She asked if there has ever been an instance when someone was arrested because of wrong identification. MR. BISCHOFF responded that in Alaska there are approximately 300,000 criminal records, and nationally there are 55 million. When discussing numbers like this, there has to have been an occasion where a misidentification has been made. Nevertheless, the opportunity in a court proceeding is to require verification, a new set of fingerprints if that is how the connection is being made. He commented that there is a path during the adjudication process to clear oneself of misidentification, and the department has had instances where relatives - brothers - have used each others' identifications in order to protect their own records. He mentioned that fingerprints are desirable because people use aliases, and the only thing that can bring 14 aliases together to one person is a common set of fingerprints. Fingerprints uniquely identify the person just as deoxyribonucleic acid (DNA) does. Number 0490 CHAIR JAMES said she was referring to actual skirmishes where everyone is arrested and it turns out that some in the group were victims as opposed to being perpetrators - instances where victims had been arrested but were released because their innocence had been proven. Number 0547 MR. BISCHOFF replied that the only way a criminal record will be updated in accordance with the standards set by this compact is if someone is arrested and a fingerprint card is submitted. In the rare instance where the preponderance of evidence is clear that this person was a passive bystander not involved in the skirmish, an appeal [for dismissal] has been made to the commissioner of the DPS. He informed the committee that the DPS gives the appeal to the Department of Law for review, and subsequently the DPS is directed to purge the record. He reiterated that AS 12.62 speaks to that issue. REPRESENTATIVE OGAN commented that in Mr. Bischoff's overview of HB 292 it says that this information will be used for civil purposes. Representative Ogan said he could understand justification in using electronic information for police officers to protect themselves from dangerous people, but he does not see justification for making all that information available for civil purposes, including [background checks relating to] members of the Bar [Alaska Bar Association], the Alaska Securities Act, assisted living homes, certification of teachers, child care, collection agencies, housing, school bus drivers and hospital security guards. He concluded that the legislature should just pass a bill called "The Omnibus Save Ourselves from Ourselves" and give the administration the authority to pass a regulation on anything by which people might hurt themselves. He said he foresees that this is where society is going, and citizens have constitutional protections against things like that. He agreed that if someone has been adjudicated and been through the process, then it is relevant to HB 292; otherwise, HB 292 violates at least the spirit of the constitution and civil rights. Number 0763 MR. BISCHOFF answered that the examples that he had illustrated are current Alaska law that the legislature has specifically authorized and determined a public need for, to screen individuals. If the legislature believes that the statutes continue to be necessary, it would follow that the state would like to do a complete, thorough check within reason; the compact allows the department to do this under common national standards. He reminded the committee that the department is not doing anything differently than the legislature envisioned but is doing a better job. Number 0854 REPRESENTATIVE OGAN remarked that sexual offenders have been adjudicated and convicted, and that is his point. He quoted from page 6, Article II(1), lines 20-22, as follows: "provide a legal framework for the establishment of a cooperative federal-state system for the interstate and federal-state exchange of criminal history records for noncriminal justice uses". He mentioned those civil uses he had just described and said that is where he has problems with HB 292. He further commented that page 11, Article VI(1), requires that the legislature appoint someone to the council. Therefore, he indicated, the fiscal note is wrong and should reflect the cost of fulfilling Article VI, which says, "each party state shall appoint a Compact officer who shall ...." He emphasized that he is tired of the administration producing bills with zero fiscal notes to avoid a Finance Committee referral. MR. BISCHOFF responded to the fiscal note issue by explaining that since the mid-1960s the department has employed a person to perform the equivalent function called a Control Terminal Officer that is associated with the Legacy system, the national crime information center. This same person will perform the job required by HB 292 because it is just relabeling and modernizing an existing system. Number 0989 REPRESENTATIVE OGAN directed attention to page 13, line 29, and quoted: "Nothing in this Compact shall diminish or lessen the obligations, responsibilities, and authorities of any state ...." Representative Ogan said he has seen similar language in the Alaska National Interest Lands Conservation Act (ANILCA), yet these saving clauses are not worth the paper they are written upon. CHAIR JAMES announced that HB 292 would be held over. ADJOURNMENT Number 1146 There being no further business before the committee, the House State Affairs Standing Committee meeting was adjourned at 9:55 a.m.