SENATE JUDICIARY COMMITTEE April 1, 1998 1:40 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Drue Pearce, Vice-Chairman Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT All members present COMMITTEE CALENDAR SENATE BILL NO. 297 "An Act relating to breast-feeding." - MOVED CSSB 297(JUD) OUT OF COMMITTEE CS FOR SENATE BILL NO. 319(L&C) "An Act relating to arbitration; amending Rules 57(a) and 77(g), Alaska Rules of Civil Procedure; and providing for an effective date." - MOVED CSSB 319(L&C) OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION SB 297 - No previous action to report. SB 319 - See Labor and Commerce minutes dated 3/10/98 and 3/12/98. WITNESS REGISTER Ms. Karen Pearson Department of Health, Education and Social Services Division of Public Health 350 Main Street Juneau, Ak 99811 POSITION STATEMENT: Supported SB 297 Ms. Nancy Rody Department of Health, Education and Social Services Women, Infants and Children program 130 Seward St. Juneau, Ak 99801 POSITION STATEMENT: Supported SB 297 Ms. Edna Abbot PO Box 99803 Juneau, Ak 99803 POSITION STATEMENT: Supported SB 297 Ms. Sharon Glick 9567 Eagle St. Juneau, Ak 99801 POSITION STATEMENT: Supported SB 297 Ms. Susan Pollard 814 Goldbelt Juneau, Ak 99801 POSITION STATEMENT: Supported SB 297 Ms. Monica Gross 1175 Mendenhall Peninsula Rd. Juneau, Ak 99801 POSITION STATEMENT: Supported SB 297 Ms. Caren Robinson PO Box 33702 Juneau, Ak 99801 POSITION STATEMENT: Supported SB 297 Ms. Margie Hamburger 215 Gastineau Ave. Juneau, Ak 99801 POSITION STATEMENT: Supported SB 297 Ms. Pam Cure 5045 N. Douglas Hwy. Juneau, Ak 99801 POSITION STATEMENT: Supported SB 297 Ms. Grace Elliot 8124 Dogwood Lane Juneau, Ak 99801 POSITION STATEMENT: Supported SB 297 Mr. Jerry Burnett Staff to Senator Randy Taylor State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Presented SB 319 Mr. Bill McNall 921 W. 6th Ave. Anchorage, Ak 99501 POSITION STATEMENT: Supported SB 319 Mr. Steve DeVries Anchorage, Ak POSITION STATEMENT: Supported SB 319 ACTION NARRATIVE TAPE 98-26, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:40 and brought up SB 297 as the first order of business. CHAIRMAN TAYLOR said he scheduled the bill because he believes it is important, supports SENATOR ELLIS in his efforts and he wants to move it from committee. SB 297 - BREAST-FEEDING IN PUBLIC PLACE SENATOR ELLIS thanked CHAIRMAN TAYLOR for his support and offered amendment #1 which reduces the penalty for ejecting a woman for breast-feeding in public from a class B misdemeanor to a violation, so as not to incur the costs that accompany a misdemeanor. SENATOR ELLIS moved the amendment and without objection, it was adopted. SENATOR ELLIS noted the bill has received an outpouring of support. SENATOR ELLIS explained the bill ensures a woman's right to breast- feed in a public place under state law and city ordinances, and makes interfering with this right a violation. SENATOR ELLIS indicated breast-feeding is beneficial to both the mother and the child for numerous reasons. SENATOR PARNELL asked about the necessity of the findings section of SB 297; SENATOR ELLIS remarked they had only been included for the edification for the public and CHAIRMAN TAYLOR commented they could possibly be removed later. MS. KAREN PEARSON, representing the Division of Public Health, indicated that breast-feeding is good for the mother, the child and the economy of the family and SB 297 sends a positive message to society that breast-feeding is a normal, natural function. Her division appreciates the help in spreading this message. Number 120 MS. NANCY RODY, Director of the Women, Infants and Children program (WIC), explained there is a barrier to breast-feeding based in the fear of what other people might think. She has heard many reports of women being harassed while breast-feeding in public. MS. Rody said young women and poor women are more sensitive to public pressure about breast-feeding and this bill would send a good message about the benefits of breast-feeding. MS. ANN KNOBBE testified via teleconference from Mat-Su. As a nurse and lactation consultant for the WIC program in Mat-Su, she asked the committee to pass this bill and send a good message to the public. MS. ROBERTA GILLOTT testified via teleconference from Dillingham and expressed her support, as a new mother who has experienced discrimination, for SB 297. Number 187 MS. FAITH CHALIFOUR-KROUS, an accredited breast-feeding counselor from La Leche League International, testified via teleconference from Anchorage about the importance of encouraging young mothers to breast-feed. She said breast-feeding is a natural healthy way to bond with and feed your baby. MS. EDNA ABBOT thanked the committee for the legislation, saying it will increase the percentage of mothers who breast-feed their children longer. She showed a picture of her child and expressed her appreciation to the committee. SENATOR ELLIS noted that MS. ABBOT helped prepare this legislation and he applauded her efforts. Number 232 MS. SHARON GLICK testified to the fact that mothers need to get out of the house to retain their sanity. MS. GLICK said babies get breast-fed on demand and that means mothers never know where they may need to feed their baby. She said this bill is really about the rights of the baby to be able to nurse whenever and wherever they need to. MS. SUSAN POLLARD said this bill is a step toward making breast- feeding the cultural norm. She thanked CHAIRMAN TAYLOR and the committee for allowing the bills passage on behalf of every mother and baby who can now nurse more comfortably. CHAIRMAN TAYLOR remarked that the bill is about a cultural shift; saying it harkens back to 250-300 years of puritanical concerns about viewing the body. CHAIRMAN TAYLOR said personally, nothing makes him feel more comfortable and warms his heart more than a nursing mother with her baby. MS. HEATHER BARBER, a Mat-Su mom, added her support to the bill. Number 285 MR. STEVEN JAQUIER, who described himself as the "token male" expressed his personal belief that breast fed babies do better than bottle fed babies and thanked the committee for the piece of legislation. MS. MONICA GROSS, a pediatrician and mother of three, supported the bill and said it sends a message to the rest of the nation that the people of Alaska support its children. Ms. CAREN ROBINSON, representing the Alaska Women's Lobby, expressed strong support for the bill and spoke of her personal experience nursing her son, saying it was an incredible bonding experience she will never forget. MS. MARGIE HAMBURGER spoke in favor of the bill, saying that employers should also be educated and encouraged to support breast- feeding mothers. Ms. PAM CURE commented that in a culture that pervasively depicts women as sex objects, the nurturing role of a breast-feeding mom is even more important and should be encouraged. MS. CURE said a mother should be free to enjoy society and this bill allows for the protection of that freedom. She wholeheartedly supports the bill. Number 363 MS. GRACE ELLIOT said she was thrilled to see the bill. She recalled a campaign to promote breast-feeding she encountered in Canada which employed huge billboards saying, "Fast food - Two convenient locations" and "Sometimes it's ok to suck up to the boss." MS. ANNE CARPENETI, representing the Department of Law, explained that her interpretation of section 3 of the bill, about "indecent viewing," is that it prohibits someone from secretly photographing a woman who is breast-feeding. In response to a question from SENATOR PARNELL, she said it is not intended to apply to anything else. MS. CARPENETI said the Department supports the bill. MS. CARPENETI said, in order to correspond with SENATOR ELLIS's amendment, she believes the word "crime" should be changed to "offense" on page 2, line 28. CHAIRMAN TAYLOR moved this change as amendment #2. Without objection, the amendment was adopted. SENATOR ELLIS moved the bill out of committee with individual recommendations. Without objection, it was so ordered. SB 319 - ARBITRATION MR. JERRY BURNETT, staff to Senator Randy Phillips, presented the bill as a means to clear up some confusion surrounding arbitration. SB 319 requires any agreement to arbitration must clearly state that engaging in arbitration may limit or waive other rights to action. SB 319 also limits the amount of an arbitration to $7,500 to correspond with the limit of small claims court. MR. BURNETT said the bill was drafted in response to a constituent complaint, and is modeled after the Montana code. MR. BILL MCNALL, an Anchorage attorney specializing in real estate law, testified that there is a misconception that arbitration is quick, easy and inexpensive. He said in his experience this is not the case. MR. MCNALL commented that there are no set standards in arbitration and SB 319 will bring this to the attention of consumers and allow them to make a more informed decision about dispute resolution. SENATOR PARNELL asked if on page 4, line 24, the term "a neutral" was used correctly. MR. MCNALL identified this as a term of art and said it was used correctly. Number 466 MR. STEVE DEVRIES, an assistant Attorney General for the Department of Law, testified that he had reviewed the bill and saw no legal impediments to it. CHAIRMAN TAYLOR asked if it accomplishes its purpose and MR. DEVRIES said it will go a long way toward the goal expressed by MR. MCNALL. SENATOR PARNELL asked if the bill contained a provision relating to the competence of the arbitrator. MR. BURNETT replied that issue is not addressed in the bill, as the bill only attempts to inform people of their rights and responsibilities under arbitration. Number 485 CHAIRMAN TAYLOR remarked that they may soon find themselves talking about education, training and certification of arbiters, as arbitration is becoming much more widespread. MR. BURNETT agreed, saying attorney's fees in a simple arbitration may considerably exceed the award. SENATOR PARNELL moved CSSB 319 (L&C). Without objection, it was so ordered. CHAIRMAN TAYLOR mentioned that the next order of business would be the continuation of the report on the Alaska Public Safety Information Network (APSIN). He noted that copies of MR. NORSWORTHY's report were available for anyone who may want one. Number 538 MR. KENNETH NORSWORTHY, special counsel to the Judiciary Committee, hoped that all members of the committee had read his report. He said he was also prepared to discuss additional information he had come across which was not included in the report. MR. NORSWORTHY reported that he had reviewed the files of the 63 cases that were not forwarded to the Troopers for investigation and found some significant inconsistencies. MR. NORSWORTHY said he would be willing to provide the committee with this information in an addendum to the initial report. CHAIRMAN TAYLOR asked MR. NORSWORTHY what he discovered in reviewing these 63 cases and MR. NORSWORTHY replied he found it was difficult to determine why these cases were not pursued with a criminal investigation, considering some of the cases investigated seemed no more criminal than other cases that were not. MR. NORSWORTHY suggested some of the files that were not investigated further actually appeared more suspicious than others that were, and were dismissed by a simple note from the employees' superior. MR. NORSWORTHY gave an example of three questionable accesses to the APSIN record of Representative Jerry Sanders, one dismissed due to curiosity, one unexplained yet cleared, and a third that was reportedly the result of Rep. Sanders' visit to the Palmer Correctional Facility. Apparently, an e-mail from Del Smith to Kathy Mather asked for a verification of this as Rep. Sanders had informed MR. NORSWORTHY that he was in session in Juneau at the time of the access and couldn't have visited that day. MR. NORSWORTHY said it is questionable why no further investigation was done on this case, as it predated the newspaper article that prompted the other accesses, which were subsequently written off as "curiosity." TAPE 98-26, Side B Number 001 MR. NORSWORTHY said, whether or not this access was due to curiosity, it is difficult to see why it was not followed up. CHAIRMAN TAYLOR asked if MR. NORSWORTHY had found any excuse that was not accepted in the Department of Public Saftey's (DPS) investigation. CHAIRMAN TAYLOR indicated that a person could have given any excuse for their unauthorized access, he asked MR. NORSWORTHY if there was a single incident in which DPS found a crime. MR. NORSWORTHY replied no; he added that every case had been closed with a finding of insufficient evidence. CHAIRMAN TAYLOR remarked that someone had excused this conduct, whether it was the Attorney General's office, the investigating trooper or the person who did the criminal screening, and he wants some explanations. CHAIRMAN TAYLOR said an incident like this happened before involving Governor Hickel and a man named Thoma, and in that case there was a public outcry. CHAIRMAN TAYLOR said he is frustrated since last time this exact thing happened a woman was fired and the law was changed. MR. NORSWORTHY detailed other "suspicious" accesses of SENATOR DAVE DONLEY that were inadequately explained by DPS as a Brady handgun check. SENATOR DONLEY told MR. NORSWORTHY that he thought he had been accessed only once, when in fact he had been accessed six times. MR. NORSWORTHY called Captain Zeger (who had previously explained the inquiries by saying it was a Brady check) and asked about these accesses. Captain Zeger said he did not speak with SENATOR DONLEY and said he had been told by his chief that SENATOR DONLEY buys a lot of handguns. MR. NORSWORTHY said this is only one of many troubling inconsistencies between what happened and the explanations coming forward to justify what happened. CHAIRMAN TAYLOR commented that since this report has come out he's getting all kinds of phone calls from people telling him of interrelationships between people who accessed APSIN and people who are politically active. MR. NORSWORTHY said informing the legislators who had accessed them was debated during the development of the investigative protocol and was eventually dismissed. MR. NORSWORTHY indicated that an e-mail from Captain Cassanovas had questioned the efficacy of an investigation in which this was not done. CHAIRMAN TAYLOR remarked that it is ludicrous for the police not to question the victims about the crime. He said this has stalled the investigation for at least a year and a half, and people are only now being told who accessed them and are now calling CHAIRMAN TAYLOR's office with ideas of why these people might have accessed their files. CHAIRMAN TAYLOR said the protocol developed by the Troopers and the Assistant Attorneys General with Mr. Guaneli precluded notification and made it impossible for the legislators to provide investigators with the information that they wanted to "put legislators on the spot" for. CHAIRMAN TAYLOR said the whole investigation was structured to fail, and he wants to hear those people who made the decisions explain why they excluded all questions regarding unions and politics, and victim notification. MR. NORSWORTHY agreed. MR. NORSWORTHY continued with another example. MR. NORSWORTHY outlined two APSIN checks of Casey Sullivan, former aide to Representative John Cowdery. MR. NORSWORTHY called and spoke to Mr. Sullivan who was unaware that his record had been accessed more than once. Mr. Sullivan believed he recalled a conversation with Mr. Otte saying DPS thought the access was due to his serving on jury duty during that time frame. Mr. Sullivan later talked with MR. NORSWORTHY and told him he had also declared himself as a political candidate at about that time. Captain Zeger (APD) attempted to explain this by saying a case with a suspect named "C. Sullivan" was being investigated at that time; after that there was no further investigation into this, according to MR. NORSWORTHY. MR. NORSWORTHY later asked Captain Zeger for information on the case, as it was closed, but Captain Zeger did not provide that information, saying the case involved an allegation of sexual abuse and other sensitive information that shouldn't be released for only an APSIN investigation. MR. NORSWORTHY said this characterizes the entire investigation, during which every access from the Anchorage Police Department (APD) was deleted from investigation with a simple note from the deputy chief explaining it away. MR. NORSWORTHY said this did not happen to similar accesses from other police departments, which were eventually referred to the criminal investigation. CHAIRMAN TAYLOR commented that the final result is the same and no one will get convicted no matter what they've done. Number 386 MR. NORSWORTHY said he found it significant that no file from the APD was referred to the criminal investigation, which might have hampered a person's future, especially in law enforcement, if they had been labeled a suspect. MR. NORSWORTHY has no proof of wrongdoing, but suggested that the accesses out of APD, and the fact that none were referred to the criminal investigation, make him wonder. CHAIRMAN TAYLOR asked him to pick up where he left off in his overview of the report. MR. NORSWORTHY took up the case of Adam Berg, who accessed the records of Representative Mark Hodgins, among others. CHAIRMAN TAYLOR interjected that it has come to his attention that Mr. Berg has significant relationships to people involved in the campaign of Mr. Hodgins' opponent. MR. NORSWORTHY noted that Mr. Berg had also accessed the records of Senator Donley. Number 331 MR. NORSWORTHY stated that Mr. Berg was a dispatcher for the Juneau Police Department (JPD) in May of 1996, when he accessed the records of both Representative Hodgins and his opponent, Lorraine Crawford. Additionally he accessed the records of Representative Hodgin's daughter, Andrea, explaining the reason he accessed her records was because they had once worked together. According to MR. NORSWORTHY, Mr. Berg had already admitted accessing records of many people he knew whenever he was bored. Again MR. NORSWORTHY mentioned that though the legislative complaints were the catalyst of the audit, the investigators tended to steer away from any admissions of non-political, illegal accesses. CHAIRMAN TAYLOR commented that it has become very obvious that the investigators did not want to find anything. Number 300 SENATOR PARNELL said it appears that this was treated as a breach of administrative protocol. MR. NORSWORTHY replied that even when the investigators encountered clear wrongdoing, they avoided it. SENATOR PARNELL remarked that this led to the investigators precluding any information about motive, and preordained the outcome. SENATOR PARNELL noted that he would like to also hear the other side of this story. MR. NORSWORTHY stated that Mr. Berg seemed to want to talk about his case and he freely admitted he had accessed people out of curiosity. Mr. Berg stated clearly that he did not disseminate this information for personal gain, indicating to MR. NORSWORTHY that he knew what to avoid. Mr. Berg stated that he had previously had a file compiled on Mark Hodgins. MR. NORSWORTHY indicated that after making these accesses, Mr. Berg quit JPD and went to the Kenai Peninsula to run Lorraine Crawford's campaign. MR. NORSWORTHY suggested that the troopers put an exculpatory twist on Mr. Berg's statements, and shied away from asking him difficult questions. MR. NORSWORTHY said MR. Berg had admitted he had a motive to do these checks before he left JPD, and has made other accesses to people, including some he had been involved in a lawsuit with. CHAIRMAN TAYLOR interjected that Berg was too stupid to pick up the cues of the investigating trooper, and his use of APSIN was obviously for personal benefit. Number 225 MR. NORSWORTHY spoke of an additional interview in which Mr. Berg talked about his dislike of Representative Hodgins, and described a confrontation they had in the Capitol building. Mr. Berg was asked by the investigating troopers if others had been present at the time of the accesses; a co-worker was named but never interviewed by the troopers. Number 166 MR. NORSWORTHY stated that it is proper investigative technique to interview people present at the time of the incident in order to obtain more, potentially incriminating, information. CHAIRMAN TAYLOR asked how anyone could justify running Representative Hodgin's daughter and MR. NORSWORTHY replied there was no justification given nor asked for. CHAIRMAN TAYLOR remarked that it had just occurred to him that the only way any legislator found out if he or she had been run was to write a letter to DPS asking them. Number 150 MR. NORSWORTHY reported that the investigators found Mr. Berg's testimony, "not persuasive and highly suspicious" but did not request additional investigation and prosecution was still declined. CHAIRMAN TAYLOR commented that Bob Litton was in the meeting with Mr. Guaneli when the protocol was developed and they told the troopers there was no crime. MR. NORSWORTHY agreed, and said at the same time Mr. Berg had been snooping around, Mr. Hodgins had been readying for the election. Simultaneously, Mr. Hodgins was involved in a lawsuit with a former business partner. MR. NORSWORTHY submitted a billing statement from Mr. Hodgins' former business partner's lawyer, showing his lawyer had billed him for "tele with Adam re: background and information". MR. NORSWORTHY said later some negative information about Mr. Hodgins was reported in the press. MR. NORSWORTHY noted this statement is included in his report, and suggested that Mr. Berg's case has the most potential, if appropriately investigated, for successful prosecution. Number 47 CHAIRMAN TAYLOR remarked that it couldn't be clearer: the attorney was billing for talking to Adam Berg. MR. NORSWORTHY said it is one thing if this individual did this with a political motive; it is quite another thing if there was a connection to a political organization that was orchestrating all these cases. TAPE 98-27, Side A Number 001 CHAIRMAN TAYLOR asked MR. NORSWORTHY if this appeared to be a conflict of interest, and MR. NORSWORTHY replied that apparently, based on circumstantial evidence, this would appear as a conflict of interest to the average person. CHAIRMAN TAYLOR remarked that in the Palin/Stambaugh incident, it is well known that Commissioner Otte, former chief of police in both Palmer and Anchorage, was a good friend of Mr Stambaugh. CHAIRMAN TAYLOR said both the Anchorage Police Department and the Palmer Police Department, as well as Mr. Stambaugh were "cleaned up" in this investigation, and he is concerned with this apparent strong conflict of interest. Number 90 CHAIRMAN TAYLOR suggested that between the perpetrators, the investigators and those who reviewed the case for prosecution there exists an apparent serious conflict of interest, especially in light of the meeting conducted in which these same people determined that no crime was committed. CHAIRMAN TAYLOR said it is high time to draft a resolution to call for an independent prosecutor. CHAIRMAN TAYLOR said he wants to see Mr. Guaneli before the committee to give some answers before that happens, and said then we'll see if this Administration has courage enough to clean up their own act. MR. NORSWORTHY indicated that both sides of the issue should be explored, but, since it seems that the Department of Law is unwilling to prosecute, the law might as well not be there. CHAIRMAN TAYLOR remarked that DPS promised they would do a thorough investigation but then told the investigators who and what they could look at. CHAIRMAN TAYLOR said there were no objective standards set to determine why some cases would be investigated and others would not be, which leads one to believe there is a conflict of interest, similar to the determination of the legislative auditors that there was a conflict of interest in the handling of a large statewide fraud perpetrated from Fairbanks. Number 171 MR. NORSWORTHY agreed, and said another thing that may have come into play as a reason why DoL and DPS might have been reluctant to aggressively prosecute these cases was the negative impact it might have on access to the federal NCIC database. CHAIRMAN TAYLOR asked MR. NORSWORTHY if he knew if state investigators had asked the FBI if any state employees had used APSIN to go into the NCIC database. MR. NORSWORTHY said he had not seen any documents requesting it, but Commissioner Otte said he had verbal contact with the FBI and was told that information must come from a federal audit, and that they were not interested in conducting one. CHAIRMAN TAYLOR remarked that Mr. Guaneli had indicated that the FBI had deferred to the state on this issue, but CHAIRMAN TAYLOR said apparently the computer doesn't work this way. MR. NORSWORTHY agreed. CHAIRMAN TAYLOR stated that, because of the failure of the state to follow through with this, he has contacted the FBI, and will remain in contact with them until he finds out if any accesses were made to NCIC. CHAIRMAN TAYLOR said, additionally, he will turn over a copy of MR. NORSWORTHY's report to the FBI. CHAIRMAN TAYLOR asked MR. NORSWORTHY if he had any indication from either Kathy Mather, Del Smith or Ron Otte that all names of legislators were run, or only those who had returned the letter they were sent or wrote their own letter to DPS. MR. NORSWORTHY said he would double check, but believed that Mr. Otte had testified that all names of legislators had been run; MR. NORSWORTHY was not sure if they had also run the names of all candidates in the '96 election. CHAIRMAN TAYLOR said of course the only reason to do this is to determine if there was a political motive, and if they won't ask questions about political motive, there may be no point. CHAIRMAN TAYLOR said he would like a written statement from Mr. Otte stating who had talked to the FBI regarding NCIC and who had decided they would not ask the FBI for any hits in NCIC. MR. NORSWORTHY recalled a draft memo to CHAIRMAN TAYLOR, in response to his letter, which was faxed around between a few people, including Diane Shenker, which contained a handwritten note saying Guaneli recommended avoiding details of the consequences of NCIC breaches. Number 308 SENATOR WARD remarked that Diane Shenker had accessed him and he would like to see the memo and find out why she really accessed him. He recalled a reporter named Lisa Durma who said "they have a receipt for anything they put into print." SENATOR WARD said what the unions and the Democrats are doing is getting the information from APSIN and make up a receipt for it. MR. NORSWORTHY commented that he had no proof, but that there are only three ways to find this kind of information: first, a simple recollection of a crime; second, to target a person and send people out to every courthouse in the state to try to "dig up dirt"; or third, to do an APSIN check then get any information from the source indicated, and purchase a receipt. MR. NORSWORTHY summarized that a receipt does not show proof that information came from a legitimate source. SENATOR WARD stated that a year ago, the Commissioner of DPS said he would have a report to the Legislature the following day. SENATOR WARD remarked that he had never heard of "a receipt" used in this context until Lisa Durma had said it and then when it occurred again in MR. NORSWORTHY's report. Number 380 CHAIRMAN TAYLOR asked who exactly Diane Shenker is and MR. NORSWORTHY replied that she is an APSIN officer. CHAIRMAN TAYLOR remarked that she was an APSIN officer who was also found editing a letter from Ron Otte to send to him regarding NCIC and other questions. CHAIRMAN TAYLOR asked why in the world she, as one of the violators, would be in the middle of the investigatory process. MR. NORSWORTHY clarified that nothing he has found has indicated Ms. Shenker accessed SENATOR WARD's records wrongfully. He did not want the record to reflect things inaccurately, though he understood SENATOR WARD's suspicions. MR. NORSWORTHY stated that Ms. Shenker is a "criminal justice planner" at DPS and her supervisor, Mr. Ken Bischoff, said her access of SENATOR WARD's files was clearly within the scope of her duties. MR. NORSWORTHY said he did not see anything overly suspicious about this particular case, but added he did not know everything there was to know about other circumstances that may add suspicion. MR. NORSWORTHY reported that many of the accesses to SENATOR WARD's file, since they appeared after the newspaper article about him, were explained as simple curiosity. Number 463 MR. NORSWORTHY did note that the audit showed a DMV clerk in Juneau accessed Representative Joe Ryan's records in January 1996, approximately two months prior to the negative ad about the "gang that couldn't shoot straight." MR. NORSWORTHY said this makes this particular access suspect, and it was not investigated closely enough, as the clerk admitted she did not routinely access criminal histories, but might have done it in response to a discrepancy pointed out by a particular driver. However, according to MR. NORSWORTHY, Representative Ryan was not in Juneau at that time and has no idea why anyone would have checked on his driving record. CHAIRMAN TAYLOR commented his shock to see Ms. Shenker as a party to the letter written back to him, Ms. Shenker being one of those people who is supposedly being investigated. MR. NORSWORTHY suggested she might have been consulted for technical reasons. Number 508 CHAIRMAN TAYLOR said that he has never received a final report on this whole business, after being assured in May that there would be a prompt investigation. MR. NORSWORTHY interjected that when he had interviewed Commissioner Otte in January, he had expressed some frustration at the length of time it was taking the Department of Law to wrap up these cases. CHAIRMAN TAYLOR restated his frustration that he had received no conclusion and no final report, only a huge load of material. MR. NORSWORTHY suggested that, after he had been retained, maybe they thought he would do it. SENATOR WARD pointed out that he was an ordinary citizen when this happened, and this was a wrong against ordinary Alaska citizens. SENATOR WARD said the users had signed an oath to use this system, and this is a sad state of affairs when the Commissioner has yet to deliver a final report. MR. NORSWORTHY said after the first article publicizing his investigation, he received a flurry of phone calls from citizens who claimed they had also been victimized. He began to take notes on these but found he did not have the time to follow up on them. Number 568 CHAIRMAN TAYLOR indicated that he has been contacted by several people who knew for a fact they had been run. He said this is flagrant, casual abuse and it's been going on for years. CHAIRMAN TAYLOR added that the sad part is there is not enough integrity within the system to investigate it. Number 579 MR. NORSWORTHY reported that there had been several accesses to the records of Representative Scott Ogan, all but one of which had been explained to his satisfaction. The one access that was questionable originated from the Wasilla Police department, apparently resulting from a report by a neighbor (who was also involved in a property dispute with Rep. Ogan) that Rep. Ogan had been driving erratically. This incident was reported informally by this neighbor to another who happened to be a police officer (and was also on the other side of the land dispute with Ogan), in his home much later. MR. NORSWORTHY noted that this police officer/neighbor had several criminal convictions himself, prior to serving on the police force, and he was shocked that there had been no further investigation. SENATOR WARD asked about the date of this access to Ogan's files, noting that Ogan also appeared in the ad about "the gang that couldn't shoot straight." MR. NORSWORTHY replied that there were two separate accesses, one in January of 1996 and another in February 1996. CHAIRMAN TAYLOR mentioned that this access predates the ad and SENATOR WARD interjected that it also predates a television ad in which several legislators supported the candidacy of Ms. Sarah Palin for Wasilla Mayor. MR. NORSWORTHY remarked that this could be a possible motive for the access. SENATOR WARD recalled the t.v. ad and said there had been a big controversy around it, with people thinking the Republicans were trying to take over the mayorship, which they did he added. CHAIRMAN TAYLOR remarked that since Representative Ogan did not know who had accessed him, he couldn't have offered any information to the investigators. MR. NORSWORTHY said this is another case where it appeared that the APSIN access had been made at the request of another person who did not have APSIN authority. The investigating trooper tried to neutralize this, according to MR. NORSWORTHY, by asking softening questions leading him to say his neighbor had only suggested, not requested, he access Ogan. MR. NORSWORTHY believed the investigation could have turned something up if they had proceeded differently. Number 515 SENATOR WARD commented that there were many articles written about the Republican Delegation's support of the Wasilla Mayoral race and he would not be surprised if this police officer had connections to the unions or the Democratic Party. CHAIRMAN TAYLOR asked MR. NORSWORTHY to come up with a list of names of people who should be asked to come before the committee to explain the "strange phenomena" he has encountered. CHAIRMAN TAYLOR suggested Dean Guaneli and Kathy Mather would be among those people. CHAIRMAN TAYLOR also stated that he wanted confirmation that all of the candidates in the 1996 election had been included in the APSIN audit. MR. NORSWORTHY stated his belief that if there is the legislative will, this investigation should go on, and get to the bottom of this before the end of this session. CHAIRMAN TAYLOR agreed, saying it would be fascinating to know who had contributed to what campaign during the election, and how these people related to those who had made unauthorized APSIN accesses. CHAIRMAN TAYLOR said a person can always find an excuse for why they ran a name if they are halfway clever, they wouldn't then have to be spoon-fed by the Administration that suggests to them they were probably merely "curious." CHAIRMAN TAYLOR remarked that no one found out some of these stories were lies because the victims never had a chance to report that they had not been in Juneau at the DMV, or they had not been visiting the Palmer jail that day. CHAIRMAN TAYLOR would like to find out how many of these people who had made these accesses are closely affiliated with various unions like ASEA, or political candidates. He wants to find out if there was political and union involvement and he'd like to find someone with the courage to clean this thing up, as he's tired of hearing from individual citizens who have had their privacy rights violated. Number 461 MR. NORSWORTHY said this reminded him that three or four of the suspects had their union shop steward with them during their interview. SENATOR WARD stated that, if in fact there is union involvement in this, it falls under RICO and will be prosecuted by the FBI. CHAIRMAN TAYLOR replied that he agreed, but he wished he could count on that. SENATOR WARD said it was ridiculous that the citizens of Alaska had to put up with this kind of stonewalling, when the original request to DPS was very simple and has yet to be done. MR. NORSWORTHY projected that a further investigation would take a substantial sum of money, and the retainer of someone with powers equivalent to a special prosecutor. SENATOR WARD interjected that the state has an Attorney General and a Commissioner of Public Safety and if they don't do it they can be replaced. MR. NORSWORTHY continued that there had been a letter faxed around DPS dated 4/30/97 which has a note attached (author unknown) that says, "should we make public the reasons for authorized access?", "define misuse of computer", and "can we afford" as well as "why believe disseminated", "what harm" and "special rights vs. less expectations". Additionally, theses notes read, "can we get into attack position?" and "are they willing to fund 6-10 new positions to monitor". MR. NORSWORTHY expects that if this issue is further debated, funding questions are likely to be a major factor. CHAIRMAN TAYLOR replied that it has already been, and it has been fed to Mike Dugan who wrote a nasty, vitriolic article about how he is on a witch hunt, spending all kinds of money. CHAIRMAN TAYLOR suggested this fits right in with the "attack mode" brought up in the notes. Number 385 SENATOR WARD said he had just received a note saying that Rhodes, one of the people named in the report had been an aide to SENATOR ELLIS. SENATOR WARD asked why they were just finding this information out. SENATOR ELLIS said this has done a disservice to the public. MR. NORSWORTHY recalled one more thing he wanted to talk about. He noted that there had been an implicit admission by DoL and DPS that the current procedures do not require documentation for every APSIN access. MR. NORSWORTHY said that the Attorney General had written him a letter in which he expressed concern that this investigation might have a chilling effect on law enforcement users who need to use APSIN to ensure public safety. Number 358 MR. NORSWORTHY said he noticed that all of the APD captains used the exact same words to dismiss questionable APSIN inquiries. This stuck him as odd and showed him that the APD was documenting every APSIN access voluntarily since this investigation has been underway. CHAIRMAN TAYLOR remarked that that is the procedure for NCIC, you can't get in without a reason for access. CHAIRMAN TAYLOR said all he had requested of the Attorney General was that APSIN do the same. SENATOR WARD said it needed to be said that hundreds of state workers who would never consider violating their agreement are outraged. He wants it to be clear that "this little crowd of people who are being protected by the Administration" is a small minority of "bad apples". Number 316 MR. NORSWORTHY said another problem was that DPS ignored the idea that an outside party persuading an APSIN user to make unauthorized access(es) could be considered hacking and would be criminal. He said an e-mail from Ms. Mather to Del Smith concerning accesses to SENATOR WARD's records argued that Lori Otto would not have been able to access any APSIN records due to the fact she had no User ID. MR. NORSWORTHY stated that this was naive to think that Lori Otto, a high official within the Department of Law, could not have accessed these files just because she did not have a User ID, especially considering the investigation which showed people frequently sharing their ID's with others. CHAIRMAN TAYLOR said there is also the fact that Lori Otto was the Chief prosecutor in the state at that time and had the entire police department working for her. CHAIRMAN TAYLOR remarked that at this same time, SENATOR WARD's file suddenly turned up in the hands of his opponent. CHAIRMAN TAYLOR suggested that maybe this file wasn't related to APSIN; maybe this file came out of the Attorney General's or Anchorage District Attorney's office. CHAIRMAN TAYLOR said the file appeared later and SENATOR WARD was asked by a member of the press to sign a waiver to allow them to read his criminal history. CHAIRMAN TAYLOR said even the D.A.'s notes in the file were referred to, showing they had something. MR. NORSWORTHY said it was important to point out that prosecutors notes wouldn't appear in APSIN, and, due to attorney/client privilege would never make them accessible to the public, and would also cause them to be archived separately. MR. NORSWORTHY asked SENATOR WARD if he was asked about this in a public setting. SENATOR WARD replied he was, by both Lisa Durma and Channel 7. Number 231 MR. NORSWORTHY said this indicates the likelihood that someone has a reason to believe that there was something in the prosecutor's notes, and demonstrates there was leakage somewhere. CHAIRMAN TAYLOR asked how anyone would know that there were such notes in a 30 year old file. MR. NORSWORTHY replied it would indicate an information leak. SENATOR WARD contended this might be related to the dismissal of Lori Otto and her subsequent rehire (in a new position) by the Governor. He asked why this was not investigated further. Number 197 MR. NORSWORTHY said that lawyers know that prosecutors' notes involve hearsay and suspicions, not credible evidence and would never serve any public interest by being revealed. CHAIRMAN TAYLOR said someone dredged up this file and turned it over to the press, who had to ask SENATOR WARD for a waiver to use the information as it was obtained illegally. SENATOR WARD guessed this came from APSIN thus began the investigation into APSIN abuse. So now, this committee ends up asking questions about 85 hits on a "secure" system. CHAIRMAN TAYLOR said privacy no longer exists with the current level of political corruption, and he feels for the private citizens caught in the middle of this. MR. NORSWORTHY said it could be hypothesized that APSIN could be used in other ways for political purposes that may never even surface. He also noted that APSIN contains a wealth of information beyond just criminal convictions, and suggested that simply doing periodic audits of the names of candidates will not be sufficient to deter political abuse of the system in the future. Number 085 CHAIRMAN TAYLOR noted that the Administration has only now put $600,000 into APSIN to address these problems, even going so far as to insert an additional screen on top of the files of legislators. CHAIRMAN TAYLOR characterized this as giving the legislators "special rights" and stated it is unfair and totally offensive. SENATOR WARD agreed. MR. NORSWORTHY commented that citizens don't have fewer rights now, but actually fewer protections. He stated that the public interest justifies more scrutiny in this case, since it might have not only have affected the election, but, in doing so, affected all the people voting for their representatives. Number 014 CHAIRMAN TAYLOR reflected on an example in Wrangell where misuse of APSIN resulted in termination of an employee. He wonders why this has not happened in this case, where the violations are much more flagrant, but he suspects there is no one in office with enough integrity to do it. TAPE 98-28, Side A Number 001 MR. NORSWORTHY said it is important to clarify that DoL and DPS have not taken the position that this "snooping" can be punished by termination; MR. NORSWORTHY said they are just unwilling to punish it that way. CHAIRMAN TAYLOR asked if there was any objective reasons for any sanctions that were imposed, if MR. NORSWORTHY had seen a list of sanctions. MR. NORSWORTHY replied that he had seen no coherent list and CHAIRMAN TAYLOR stated he wanted to see a list detailing the sanctions imposed in each of these cases, with an explanation of why they were imposed. MR. NORSWORTHY said this would require a confidentiality agreement, as the departments will claim these are personnel records. CHAIRMAN TAYLOR said there was no punishment if a person's job duties required the use of APSIN and, as a sanction, had their APSIN privileges suspended. SENATOR WARD interjected that this was what he was hearing in complaining phone calls from corrections workers. Number 100 CHAIRMAN TAYLOR concluded by saying he would like to see a list of names of people who should be interviewed and a list of questions to ask in light of the report. He also wanted MR. NORSWORTHY's recommendations regarding conflict of interest and the need for a special prosecutor, as he intends to draft a resolution on this issue and pass it through the process, if possible, or through the Legislative Council. He thanked MR. NORSWORTHY for all his work and asked for his ongoing assistance. With no further business to come before the committee, they were adjourned at 4:55 p.m.