SENATE STATE AFFAIRS COMMITTEE March 12, 1993 9:05 a.m. MEMBERS PRESENT Senator Loren Leman, Chairman Senator Mike Miller, Vice Chairman Senator Johnny Ellis Senator Jim Duncan MEMBERS ABSENT Senator Robin Taylor COMMITTEE CALENDAR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 11 "An Act relating to the crime of terroristic threatening." SENATE BILL NO. 1 "An Act relating to retirement incentive programs for the public employees' retirement system, the teachers' retirement system, and certain persons under the judicial retirement system; and providing for an effective date." PREVIOUS SENATE COMMITTEE ACTION SB 11 - See State Affairs minutes dated 2/24/93/ SB 1 - See State Affairs minutes dated 2/3/93 and 2/26/93. WITNESS REGISTER Margo Knuth Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Commented on CS SSSB 11. Jerry Luckhaupt Legislative Legal Counsel 130 Seward Street Juneau, Alaska 99801-2105 POSITION STATEMENT: Commented on CS SSSB 11. Bill Kelder, Staff Senator Kerttula Capitol Bldg. Juneau, Alaska 99811-1802 POSITION STATEMENT: Commented on CS SSSB 11. Brian Davidson P.O. Box 1765 Bethel, Alaska 99559 POSITION STATEMENT: Supported CS SSSB 11. Mike McQuary 2301 Peger Road Fairbanks, Alaska 99775 POSITION STATEMENT: Supported CS SSSB 11. Wendy Redman, Vice President University Relations University of Alaska Fairbanks 910 Yukon Dr. Fairbanks, Alaska 99775 POSITION STATEMENT: Supported CS SSSB 11. Robert Collins P.O. Box 505 Kotzebue, Alaska 99752 POSITION STATEMENT: Supported CS SSSB 11. Barry Haight 991 Vail View Dr. Fairbanks, Alaska 99712 POSITION STATEMENT: Supported SB 1. Kathy Weltzin P.O. Box 210665 Auke Bay, Alaska 99821 POSITION STATEMENT: Supported SB 1. Dennis Gellhouse 3044 Woodduck Ave. Juneau, Alaska 99801 POSITION STATEMENT: Supported SB 1. Faye Bain ASEA 9000 Firndale Juneau, Alaska 99801 POSITION STATEMENT: Supported SB 1. Jim Bolejano, Union Representative Cook Inlet Pretrial Department of Corrections P.O. Box 103155 Anchorage, Alaska 99510 POSITION STATEMENT: Supported SB 1. Shane Ruattila ASEA, Local 52 3431 Wiley Post Lp. Anchorage, Alaska 99517 POSITION STATEMENT: Supported SB 1. Gary Sampson ASEA P.O. Box 1348 Seward, Alaska 99801 POSITION STATEMENT: Supported SB 1. Roxanne Stewart, Staff Senator Duncan Capitol Bldg. Juneau, Alaska 99801 POSITION STATEMENT: Supported SB 1. ACTION NARRATIVE TAPE 93-19, SIDE A Number 001 CHAIRMAN LEMAN called the Senate State Affairs Committee meeting to order at 9:05 a.m. and announced SB 11 ANTI-STALKING LAW to be up for consideration. SENATOR MILLER moved to adopt the CS to SSSB 11. There were no objections and it was so ordered. MARGO KNUTH, Department of Law, said the CS targets the same conduct as SSSB 11 targeted. It does it in the framework of the elements in existing assault statutes. It creates a misdemeanor offense of stalking in the second degree which is knowingly engaging in a course of conduct recklessly placing another in fear of death or physical injury. There are several ways stalking can be aggravated into a felony offense. The most significant is acts that are in violation of probation, release, or a temporary restraining order. The terms are defined specifically in this bill with Alaskan statutes in mind. The only way the CS for SSSB 11 differs significantly from HB 64, MS. KNUTH explained, is it explicitly creates an affirmative defense for constitutionally protected conduct. The purpose of the affirmative defense is to assure this law is not used to try to chill peoples exercise of their constitutional rights, like a public demonstration in front of an abortion clinic, for instance. Number 100 An issue raised by the affirmative defense is who should decide whether the person's conduct was constitutionally protected or not and juries are not trained to make that determination, MS. KNUTH said. She would prefer to see it as a question of law for the court to decide since that is their area of expertise. She suggested adding the language, "Whether an act of the defendant is a constitutionally protected activity is a question of law to be determined by the court before trial." Number 148 JERRY LUCKHAUPT, who drafted the bill, explained that a provision excluding constitutionally protected conduct does arise in most stalking laws. The terroristic threatening law, because that was a basic form of assault type of offense, was moved into assault. The CS also removed an existing relationship requirement between the victim and defendant for arrest without a warrant for the basic stalking offense, MR. LUCKHAUPT said. It also specified in Section 6 that the court may put restrictions on a release of the defendant. Number 218 In Section 7 the court cannot suspend the imposition of sentence of a person convicted of assault. Number 251 SENATOR ELLIS asked for a rationale for the use of arrest without a warrant in other instances. MR. LUCKHAUPT explained that you can always arrest without a warrant for a felony offense regardless of whether is was committed in front of a police officer or not. Traditionally, a peace officer cannot arrest without a warrant for a misdemeanor offense that was not committed in his presence. There are exceptions to that which usually involve some sort of danger to the public, like drunk driving. Stalking is similar to the fourth degree threatened assault type behavior. Number 308 BILL KELDER, Staff for Senator Kerttula, agreed with most of the changes in the CS because it made a better bill. He added that he was confused about what they were going to do with Ms. Knuth's suggested language, although he did agree with it. Number 324 SENATOR MILLER asked what happens if the jury decides the activity is constitutionally protected. MS. KNUTH replied that the most significant feature of what they are proposing is that the jury is not going to be instructed on the constitutional defense. If they are not instructed on it, nothing would prompt them to make that consideration. Under this bill, the judge would make that decision. SENATOR MILLER said he had no problem with this if the judge were neutral, but if he weren't neutral on the issue, he would have trouble. MS. KNUTH said the judge would either make the statement to the jury that it is constitutionally protected or he is silent on it. The jury would not be told there is a defense of constitutional activity. SENATOR MILLER commented that it probably wouldn't be a problem in this state where we have appointed judges. Number 399 SENATOR LEMAN asked if the judge determined the activity was constitutionally protected would it go to trial or would the case be dismissed? MS. KNUTH said that would depend on the circumstances. Number 415 BRIAN DAVIDSON, Bethel, supported the CS to SSSB 11. He said he works in a shelter for women who are victims of domestic violence and assault. There is a common perception among these women that the law is sometimes powerless to help them. This legislation would go far to give law enforcement additional powers to protect the members of the community. He wanted the committee to keep "stalker" as opposed to "terroristic threatening." He supported arrest without a warrant by a law enforcement officer and the provisions that would aggravate stalking into a felony offense. Number 437 SENATOR MILLER moved to pass CS SSSB 11 from committee. He then withdrew his motion. SENATOR DUNCAN moved to adopt the amendment suggested by the Department of Law. SENATOR MILLER objected saying he was still uncomfortable with it. SENATOR LEMAN objected as well. SENATOR DUNCAN withdrew his motion. Number 452 SENATOR MILLER moved to discharge CS SSSB 11 from Committee with individual recommendations. There were no objections and it was so ordered. SENATOR LEMAN announced SB 1 RETIREMENT INCENTIVE PROGRAM to be up for consideration. SENATOR LEMAN brought SB 11 back before the Committee to receive testimony from Sergeant James McCann in Fairbanks. However, he had left after the discharge vote and so SENATOR LEMAN brought SB 1 back before the Committee. MIKE MCQUARY, Department of Transportation equipment operator in Fairbanks, supported SB 1, because there was a high rate of injury on the job and a lot of people were quitting because they simply couldn't do the work any more. It's been proven to be cost effective. They are losing a lot of people through workmen's compensation and they need to have new people who are able to work. Number 504 WENDY REDMAN, Vice President, University Relations, strongly supported SB 1. She said the University was able to show significant savings through use of early retirement incentive programs. They anticipated additional savings would happen with the new program. She pointed out that it was at the option of the employer which she thought was very important. It is a management tool for providing savings and organizational flexibility that is not available to them any other way. At the University they have developed senior faculty in departments where demand has decreased and they have no resources in some departments where faculty is needed. The only way to lay off a professor is to eliminate the entire department, she explained. Due to the slow economy there are decreases in hiring junior faculty so there is kind of a buyer's market when it comes to junior staffing. If they could use the RIP now, it would put them in the extremely fortuitous position of being able to replace the older faculty with a good cadre of junior faculty that is available at this point. Number 557 MS. REDMAN opposed proposed amendments 1 and 2 because it would eliminate the University from the legislation. Proposed amendment 3 was alright with them, because they do not anticipate refilling more than 50% of the positions at this point. She supported amendment 4 because it clarified the bill. Number 578 SENATOR LEMAN asked if she could research the time period to show what the savings would be for a time period less than 5 years. MS. REDMAN said they could show savings from 3 years to 5 years. TAPE 93-19, SIDE B Number 584 ROBERT COLLINS, Kotzebue, supported SB 1, because it would save the state a lot of money and solve a lot of problems with eliminating the work force without a lot of anguish. He commented that the figures on people retiring at the age of 35 are probably in reference to state troopers who can retire in 20 years any way. Number 549 BARRY HAIGHT, volunteer lobbyist for a Public Safety employee group in the Fairbanks area, objected to amendment 1, because it includes teachers, but not municipalities, political subdivision, the University of Alaska, or state employees. He objected to amendment 2 because it also left off the University and state employees. He thought amendment 3 was an effort to accommodate state employees and should be considered. Amendment 4 he strongly supported. Number 516 CATHY WELTZIN, Auke Bay, brought up the human factor in the teaching profession. A lot of times people are in jobs when they are worn out and they are staying there for just one reason. This might be a really nice way to "clean up" their profession. This is a way to let them go with grace and to bring on new educators who would be more flexible. Number 498 DENNIS GELLHOUSE, President, ASEA, supported SB 1. A legislative audit from November 1991 revealed the state saved $23 million in the last program. This program is good in a period of declining revenues. The bill is written so a cost savings must be established before it is approved, so this is not another state give away for state employees. This is a way to save the state money and humanely mitigate the impact of layoffs and unemployment. MR. GELLHOUSE strongly objected to amendments 1 and 2. He did not take a position on amendment 3 and had not seen amendment 4. Number 459 FAYE BAIN, ASEA, strongly supported SB 1. She opposed amendments 1 and 2 which she described as an end run against the state employees, which according to her, were being treated as a "subhuman species." SENATOR LEMAN commented that there was no intent to treat state employees as subhuman, but the amendments were there to work toward resolving issues so the bill could possibly pass and become law. Number 416 SHANE RUUTTILA, ASEA Local 52, said in his division people who were mostly in their late 50's took advantage of the program. Not only would it be cost effective, but it would increase productivity and service. He strongly opposed amendment 1, because it would exclude state employees. The people who are staying on in the state are passing their dollars on to the people in the business community for goods and services. Number 375 GARY SAMPSON, Corrections Representative on ASEA, said there are approximately 1,000 employees in the Corrections Department that would be impacted by this legislation. He strongly supported the legislation saying his department is looking at steep cuts to their budget and the loss of many jobs. The people who will be impacted are the ones who are just starting out and perhaps they would have to leave the state to find employment elsewhere. This would be a great loss of potential for the state of Alaska. Passing this legislation would reduce the government payroll by not hurting those who are just starting out, but helping those persons who are prepared to retire. Number 352 SENATOR DUNCAN moved to adopt amendment 4 which changes the window periods for municipal employees. ROXANNE STEWART, Aide for Senator Duncan, explained the window period to the Committee which was included as a specific response to the concerns of the fire department in Fairbanks which could otherwise disappear on July 1. There were no objections and it was so moved. Regarding amendment 3, SENATOR DUNCAN said he believed to have a comprehensive piece of legislation that has all public employees in it. He would consider amendment 3 if it would help move the legislation along. He was concerned about how restrictive it would be on management to utilize the program to its fullest. Number 311 SENATOR MILLER offered amendment 3 for discussion purposes. SENATOR ELLIS thought amendment 3 took responsibility away from the Hickel appointees to do their jobs. Number 295 SENATOR LEMAN noted an excerpt from an NCSL report that said, "It is difficult to obtain real savings from retirement incentive programs for state employees and that control of replacements is the key to savings. Explicit accounting for all costs including future costs to retirement systems is essential." He agreed with this idea and supported amendment 3 because it had tighter controls which would improve the chances of this legislation succeeding. Number 251 JIM BULGIANO, ASEA employee, Department of Corrections, said there needs to be some consideration for essential personnel in replacing only 50% of the positions. In his department that might jeopardize the safety and security of their personnel. SENATOR DUNCAN said he appreciated his concerns and thought they should look at defining essential employees. Number 228 SHANE RUUTTILA, Division of Corrections, opposed amendment 3. He said their case loads are some of the fastest growing in the nation. They cannot afford to loose even one person. He thought there were some divisions that just wouldn't be able to operate under this amendment. Number 204 There were no objections to amendment 3 and it was so ordered. SENATOR MILLER moved to adopt amendment 5. There were no objections and it was so ordered. Number 141 SENATOR DUNCAN moved to pass the State Affairs CS for SB 1 with individual recommendations. There were no objections and it was so ordered. SENATOR LEMAN adjourned the meeting at 10:30 a.m.