ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
March 20, 2014
9:02 a.m.
MEMBERS PRESENT
Senator Fred Dyson, Chair
Senator Cathy Giessel, Vice Chair
Senator John Coghill
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Bert Stedman
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 20
Urging the President of the United States and the United States
Congress to repeal the excise tax on medical devices.
- MOVED HJR 20 OUT OF COMMITTEE
HOUSE BILL NO. 262
"An Act exempting the Public Defender Agency and the office of
public advocacy from certain provisions of the State Procurement
Code; and providing for an effective date."
- MOVED HB 262 OUT OF COMMITTEE
SENATE BILL NO. 206
"An Act relating to motor vehicle registration and fees;
relating to licensing of school bus drivers; relating to notice
of an accident involving a motor vehicle; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HJR 20
SHORT TITLE: MEDICAL DEVICE TAX
SPONSOR(s): REPRESENTATIVE(s) LYNN
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) HSS
02/11/14 (H) HSS AT 3:00 PM CAPITOL 106
02/11/14 (H) Moved Out of Committee
02/11/14 (H) MINUTE(HSS)
02/12/14 (H) HSS RPT 3DP 2NR
02/12/14 (H) DP: NAGEAK, KELLER, HIGGINS
02/12/14 (H) NR: TARR, SEATON
02/26/14 (H) TRANSMITTED TO (S)
02/26/14 (H) VERSION: HJR 20
02/28/14 (S) READ THE FIRST TIME - REFERRALS
02/28/14 (S) STA
03/20/14 (S) STA AT 9:00 AM BUTROVICH 205
BILL: HB 262
SHORT TITLE: PROCUREMENT EXEMPTION: PDA, OPA
SPONSOR(s): REPRESENTATIVE(s) HOLMES
01/21/14 (H) PREFILE RELEASED 1/17/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) STA
02/20/14 (H) STA AT 8:00 AM CAPITOL 106
02/20/14 (H) Moved Out of Committee
02/20/14 (H) MINUTE(STA)
02/21/14 (H) STA RPT 5DP
02/21/14 (H) DP: GATTIS, KELLER, KREISS-TOMKINS,
HUGHES, LYNN
03/03/14 (H) TRANSMITTED TO (S)
03/03/14 (H) VERSION: HB 262
03/05/14 (S) READ THE FIRST TIME - REFERRALS
03/05/14 (S) STA
03/20/14 (S) STA AT 9:00 AM BUTROVICH 205
BILL: SB 206
SHORT TITLE: VEHICLE REGIS/LICENSING/ACCIDENT REPORTS
SPONSOR(s): SENATOR(s) MICCICHE
02/26/14 (S) READ THE FIRST TIME - REFERRALS
02/26/14 (S) STA
03/18/14 (S) STA AT 9:00 AM BUTROVICH 205
03/18/14 (S) Heard & Held
03/18/14 (S) MINUTE(STA)
WITNESS REGISTER
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor for HJR 20.
NICK LEWIS, Staff
Representative Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a summary for HJR 20.
REPRESENTATIVE LINDSEY HOLMES
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor for HB 262.
MIKE BARNHILL, Deputy Commissioner
Alaska Department of Administration
Juneau, Alaska
POSITION STATEMENT: Answered questions pertaining to HB 262.
RICK ALLEN, Director
Office of Public Advocacy
Alaska Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions pertaining to HB 262.
SENATOR PETER MICCICHE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor for SB 206.
LARRY SEMMENS, Staff
Senator Micciche
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a committee substitute (CS)
overview for SB 206.
AMY ERICKSON, Director
Division of Motor Vehicles
Alaska Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Addressed questions pertaining to SB 206.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
State of Alaska Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding SB 206.
JOANNE OLSEN, Division Operations Manager
Division of Motor Vehicles
Alaska Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions pertaining to SB 206.
ACTION NARRATIVE
9:02:02 AM
CHAIR FRED DYSON called the Senate State Affairs Standing
Committee meeting to order at 9:02 a.m. Present at the call to
order were Senators Giessel, Coghill, and Chair Dyson.
9:02:24 AM
CHAIR DYSON reviewed the committee's meeting agenda.
HJR 20-MEDICAL DEVICE TAX
9:03:06 AM
CHAIR DYSON announced the consideration of HJR 20.
9:03:32 AM
REPRESENTATIVE BOB LYNN, Alaska State Legislature, Juneau,
Alaska, HJR 20 sponsor. He presented a sponsor statement as
follows:
HJR 20 is about pacemakers, artificial hips, heart
stints, surgeon birth control devices, CAT scan
machines, robotic surgical devices, and a multitude of
other very important medical devices, medical devices
that might someday save your life or the life of a
loved one. Medical devices are expensive as you know,
very, very expensive. The 2.3 percent Medical Device
Tax (MDT), as part of the Affordable Care Act,
increases the already high cost of medical devices and
the extra cost will be passed on in one form or
another down to patients. The MDT had a very chilling
effect on new medical device innovation and increases
the cost of manufacturing. We are talking about almost
$4 billion a year and that of course is very bad for
business, in fact it's antibusiness; it's not only
that, but at worst, the MDT is bad for patients and
increases the already astronomical cost of health care
and that's why I brought this resolution before you,
it urges the elimination of the MDT, it came to my
attention this morning, there is a Washington Times
article on this subject.
9:04:47 AM
SENATOR WIELECHOWSKI joined the committee meeting.
9:05:25 AM
NICK LEWIS, Staff, Representative Lynn, Alaska State
Legislature, Juneau, Alaska, explained that the Washington Times
article quotes a finding by the Advanced Medical Technology
Association (AMTA) that companies have cut 14,000 jobs and have
decided not to hire 19,000 workers due to MDT.
SENATOR GIESSEL noted that the Washington Times article
indicated that the U.S. Senate voted overwhelmingly to repeal
MDT. She asked for an update on MDT's status.
MR. LEWIS replied that MDT has currently not been repealed.
CHAIR DYSON asked if anyone wanted to testify or if the
committee had any further questions or comments.
9:08:17 AM
SENATOR GIESSEL moved to report HJR 20, labeled 28-LS1072\U,
from committee with individual recommendations and attached zero
fiscal note.
9:08:34 AM
CHAIR DYSON said without objection, HJR 20 is reported from the
Senate State Affairs Standing Committee.
9:08:44 AM
CHAIR DYSON declared that the committee will stand at ease.
HB 262-PROCUREMENT EXEMPTION: PDA, OPA
9:09:55 AM
CHAIR DYSON announced the consideration of HB 262.
9:10:15 AM
REPRESENTATIVE LINDSEY HOLMES, Alaska State Legislature, Juneau,
Alaska, HB 262 sponsor, said HB 262 was drafted in response to
an audit by the Alaska Division of Legislative Audit (ADLA) in
2012. She explained that ADLA audited the Department of
Administration (ADA) and the Office of Public Advocacy (OPA).
She said OPA was found not to be in total compliance with the
Alaska Procurement Code (APC). She set forth that HB 262 is an
attempt to make sure OPA is in compliance with APC.
REPRESENTATIVE HOLMES detailed that OPA and the Public Defender
Agency (PDA) are entities housed within ADA. She said OPA and
PDA are in charge of defending indigent and poor Alaskans in
criminal cases. She noted that OPA and PDA are almost always
opposing counsel to the Alaska Department of Law's (ADOL)
prosecutors.
CHAIR DYSON asked what the difference is between OPA and PDA.
REPRESENTATIVE HOLMES explained that PDA acts principally as the
primary group and OPA takes on criminal cases where the public
defenders have conflicts. She added that OPA also serves in the
capacity of guardian ad litem.
9:11:56 AM
CHAIR DYSON asked what the situations are where PDA has real or
perceived conflicts of interest.
REPRESENTATIVE HOLMES replied that the legal codes dictate
conflict of interest situations.
She explained that a level playing field does not exist in the
APC for the PDA and OPA versus ADOL. She said an inadvertent
omission was made when the APC was written where state attorneys
were not taken into consideration outside of ADOL. She specified
that state attorneys exist in the ADA and noted that her
oversight as Chair for ADA's budget sub-committee precipitated
her involvement with HB 262. She cited an example were outside
counsel, conflict counsel, or expert witnesses are hired where
prosecutors are given APC spending exemptions to retain
qualified experts that the attorney general signs-off on. She
said PDA and OPA are not afforded the same APC budgetary
spending exemptions as ADOL.
She summarized that HB 262 creates a level playing field by
providing the same ADOL exemptions to PDA and OPA. She added
that PDA and OPA directors will be allowed to sign-off on
exemptions rather than requiring the attorney general's
authorization. She pointed out that the attorney general is
technically the opposing counsel's boss.
9:14:18 AM
SENATOR COGHILL asked how long the inequity has been present
based upon the auditors' findings.
REPRESENTATIVE HOLMES replied that the audit discovered that the
PDA and OPA did not actually realize that the inequity was
covered by APC. She said the noncompliance has been going on for
a while.
CHAIR DYSON remarked that PDA and OPA were fortunate not to be
busted for their actions.
REPRESENTATIVE HOLMES answered that the auditors slapped PDA and
OPA "on the wrists" for their noncompliance.
CHAIR DYSON called attention to the value of good auditors.
REPRESENTATIVE HOLMES agreed that audits were an important
function.
SENATOR COGHILL asked if the current statute on contracts up to
$100,000 were limited to $1,000 exemptions on both sides.
9:16:16 AM
MIKE BARNHILL, Deputy Commissioner, Alaska Department of
Administration, Juneau, Alaska, answered that Senator Coghill's
inquiry pertains to section 2 of HB 262 which amends APC's
limited competition, AS 36.33.05. He detailed that the $100,000
limitation only applies to construction contracts. He specified
that the use of the limited competition statute for professional
services has no limitation.
SENATOR COGHILL asked Mr. Barnhill to address the question
previously posed when a perceived conflict occurs between PDA
and OPA.
MR. BARNHILL replied that when the public defender has
represented a witness who then turns out to be a defendant or
vice versa, conflicts arise due to the knowledge that a public
defender has with respect to the witness or the defendant's
prior history.
9:17:47 AM
RICK ALLEN, Director, Office of Public Advocacy (OPA), Alaska
Department of Administration, Anchorage, Alaska, added that
conflict also arises when there are co-defendants where each
individual requires independent and conflict free counsel. He
noted that OPA's cases are about 50 percent criminal and 50
percent civil. He explained that OPA's conflict cases from PDA
tend to be big cases where added witnesses are involved. He said
civil cases encompass guardian ad litem for abused and neglected
kids, public guardianship for disabled adults who are wards of
the states, elder-fraud, and an appellate unit. He set forth
that HB 262 would assist OPA in retaining professionals needed
to appropriately represent its clients.
CHAIR DYSON asked if other individuals would like to address HB
262.
9:19:45 AM
SENATOR GIESSEL moved to report HB 262, labeled 28-LS1222\A,
from committee with individual recommendations and attached zero
fiscal note.
9:20:09 AM
CHAIR DYSON announced that without objection, HB 262 passes out
of the Senate State Affairs Standing Committee.
9:20:23 AM
CHAIR DYSON declared that the committee will stand at ease.
9:21:35 AM
CHAIR DYSON called the committee back to order.
SB 206-VEHICLE REGIS/LICENSING/ACCIDENT REPORTS
9:21:40 AM
CHAIR DYSON announced the consideration of SB 206.
9:21:45 AM
SENATOR GIESSEL moved that the CS for SB 206, version 28-
LS1531\U, be adopted as the committee's working document.
CHAIR DYSON asked if there is an objection.
SENATOR COGHILL objected for discussion purposes.
9:22:17 AM
SENATOR PETER MICCICHE, Alaska State Legislature, Juneau,
Alaska, SB 206 sponsor.
9:22:20 AM
LARRY SEMMENS, Staff, Senator Micciche, Alaska State
Legislature, Juneau, Alaska.
SENATOR MICCICHE said in response to previous discussions at the
last meeting, changes were made and Mr. Semmens will review the
CS.
MR. SEMMENS reviewed the CS as follows:
Page 3, line 25, we changed the unconditional
discharge language to conviction.
On page 4, section 7, line 31, this is a new section
that a license issued under this section expires
unless renewed within five years after the date of its
issuance, that is to allow the department to review
current applicants or current holders of school bus
driver licenses; currently that license does not
expire, once it is obtained it stays, so this would
give the department an opportunity to review those at
least every five years.
Section J, page 5, line 5, this is a new section that
requires the holder of a school bus driver license to
self-report in the event that they are convicted under
any of these sections.
Section K, page 5, line 8, this gives the department
discretion in situations where persons convicted of a
misdemeanor, but if the misdemeanor does not involve a
child, it gives the department discretion to grant the
license.
9:24:26 AM
SENATOR COGHILL asked for the Alaska Department of Law (ADOL) to
address applicability issues.
SENATOR MICCICHE replied that Amy Erickson from the Division of
Motor Vehicles (DMV) and Anne Carpeneti from ADOL will address
applicability.
SENATOR WIELECHOWSKI asked for an explanation on the changes
made in section 7, page 4, line 31.
SENATOR MICCICHE responded that licensing does not expire in the
current statute. He explained that the change provides an
expiration and allows DMV to review a driver's background.
SENATOR WIELECHOWSKI asked if the change means a reapplication
for a license requires an individual to get another eye exam.
SENATOR COGHILL specified that the section in question pertains
to page 4, subsection I. He noted that he agrees with Senator
Wielechowski's inquiry regarding the requirement for renewal and
an eye exam.
9:27:05 AM
AMY ERICKSON, Director, Division of Motor Vehicles (DMV), Alaska
Department of Administration, Anchorage, Alaska, answered that
having a five year renewal allows DMV to review background
checks to determine disqualification if SB 206 passes. She noted
that DMV does not store background records. She added that
finger prints are forwarded to the Department of Public Safety
and all background records are destroyed. She pointed out that
DMV has no way of going back to review School Bus "S"
endorsements to determine disqualification if SB 206 passes.
SENATOR WIELECHOWSKI asked to verify that the change only
applies to people who have bus driver licenses.
MS. ERICKSON answered correct.
SENATOR MICCICHE added that the entire section only relates to
bus driver licenses.
CHAIR DYSON confirmed that the section applies to school bus
drivers and not tour, city, or senior citizen bus drivers.
SENATOR WIELECHOWSKI asked if a person has to pay for their eye
exam or background check.
MS. ERICKSON replied yes.
SENATOR WIELECHOWSKI asked what the fees are.
MS. ERICKSON replied that fees will range between $10 and $50.
She added that DMV does not charge for eye exams.
SENATOR WIELECHOWSKI asked if SB 206 has a zero fiscal note and
will DMV incur any charges.
MS. ERICKSON replied that DMV does not incur any charges.
SENATOR WIELECHOWSKI asked to clarify that DMV does not incur
charges in the entire bill.
MS. ERICKSON answered that the bill will allow DMV to realize
savings from online transactions.
CHAIR DYSON asked if a mechanism exists in the state where a
licensing agency is notified when an individual with a
professional license is convicted of a crime that would
disqualify them.
9:30:07 AM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
State of Alaska Department of Law (ADOL), Juneau, Alaska,
replied that she did not know. She addressed a situation with
licensed lawyers and surmised that a mechanism for agency
notification must be in place.
CHAIR DYSON added that there must be an agency notification
process for doctors as well.
MS. CARPENETI offered that she would have to check on the
notification process and get back to the committee.
CHAIR DYSON remarked that he believes there is no notification
process.
MS. CARPENETI noted that she did not recall, but she may have to
submit a disclosure statement when paying her annual lawyer
dues.
SENATOR WIELECHOWSKI addressed page 4, line 31 and asked how bus
drivers in rural Alaska will be impacted if they do not have
access to a local DMV office.
MS. ERICKSON replied that she does not know where the bus driver
licensees reside. She said she will have to see if licensee
locations can be determined.
SENATOR WIELECHOWSKI noted that Senator Olson or Senator Hoffman
will ask about the bill's impact on rural Alaska.
SENATOR COGHILL suggested asking the Anchorage-DMV on the bill's
effect on rural Alaska.
SENATOR MICCICHE stated that there currently is no way to look
back once someone has a school bus endorsement to address a
prior conviction. He said SB 206 will allow the following:
At least what this bill does is the longest you can go
is five years without someone having knowledge, if
this were to pass, without someone having knowledge
that you are someone that would be a risk to children.
CHAIR DYSON offered that SB 206 may not solve the more global
problem, but may make an improvement.
SENATOR WIELECHOWSKI asked how SB 206 will impact rural Alaska
if an eye exam and background check is required when an
individual does not have access to a DMV office.
9:33:27 AM
JOANNE OLSEN, Operations Manager, Division of Motor Vehicles,
Alaska Department of Administration, Anchorage, Alaska, replied
that DMV does accept eye exams from physicians to accommodate
people in rural areas.
SENATOR GIESSEL addressed Chair Dyson's question pertaining to
self-disclosure in other professions. She noted that medical
professionals have a biennial application that requires self-
disclosure which may result in a judgment against one's license.
SENATOR COGHILL noted that "unconditional discharge" was taken
out of section 4, pages 3 and 4. He asked if removing
"unconditional discharge" and leaving the applicant's date of
first conviction was a good moment in history to make the
judgment call on.
MS. CARPENETI replied that date of conviction should be defined
because the date of conviction can be several things under law.
She offered that date of conviction could be the date of finding
of guilt in a jury trial or it could be the date the sentence
was imposed. She set forth that the date of conviction was
generally defined as the date the sentence is imposed. She
continued as follows:
You can make that as a statement of your intent here
in this committee that that is what you are intending
that date to be, or you could, maybe possibly
considering down the line, writing that down what the
conviction means in this context. For example in
theft, your third theft conviction in a five year
period is a one jump up from what it would normally
be. In Title 11 we say the date of conviction for
purposes of these statutes is the date that sentence
was imposed.
SENATOR WIELECHOWSKI addressed the applicability section on page
7. He asked if there were constitutional implications by
applying the changes to offenses committed before the effective
date.
9:36:30 AM
MS. CARPENETI answered that she does not think so because the
statutes promote the health and safety of children. She noted
that Senator Wielechowski's question was good because
constitutional issues will arise in terms of ex post facto.
SENATOR WIELECHOWSKI inquired if the U.S. Supreme Court said you
could go back and require sex offenders to register before the
date the law passed.
MS. CARPENETI answered that the U.S. Supreme Court ruled that
registering prior to the date a law passes was allowed. She
countered that the Alaska Supreme Court stated that registering
prior to a law going into effect was a violation of ex post
facto and the state does not go back before 1994.
SENATOR WIELECHOWSKI asked if the same applies to SB 206.
MS. CARPENETI answered that she did not think so because dealing
with school bus drivers was in the interest of child safety.
SENATOR WIELECHOWSKI asked DMV about the practicability of
applying section 7 and the impact on 1000 bus drivers.
MS. ERICKSON replied that DMV would need to run a computer
search to identify "S" endorsements. She said DMV would create a
process to notify licensees that endorsements will expire and
the requirements for renewal.
SENATOR WIELECHOWSKI asked if there is a fiscal note to address
what Ms. Erickson described.
MS. ERICKSON replied that because SB 206 was not adopted, she
did not look deeper and does not currently have an answer.
SENATOR COGHILL asked Ms. Carpeneti to address the self-
reporting applicability in section 7, subsection J.
MS. CARPENETI surmised that the section appears to refer to
convictions in the future due to having a timeline for 30 days
from the date of conviction. She explained as follows:
You can't expect somebody to report that if the law
was now in effect at the time 30 days after that
person's conviction. I think this was intended to
apply to convictions in the future.
9:39:56 AM
SENATOR COGHILL replied as follows:
I took that the same way too until I read the
applicability section that says on, before, or after.
So then, certainly I think probably would be quite a
cleanup thing if anybody had any convictions under
some of these new laws, they would now have to know it
and report it.
He asked if his previous statement was true.
MS. CARPENETI answered yes.
SENATOR WIELECHOWSKI asked what would happen if a bus driver
with 30 years of experience reports something from 31 years in
the past. He inquired if the bus driver would be fired for
something that occurred prior to being a bus driver.
MS. ERICKSON replied that DMV would be able to cancel their
license.
SENATOR WIELECHOWSKI asked if DMV would "be able to" or "be
required to."
MS. ERICKSON responded that DMV would "be required to."
SENATOR COGHILL remarked that the look-back is indefinite.
CHAIR DYSON asked Ms. Carpeneti to explain her previous comment
where the committee might want to put in its intent.
MS. CARPENETI replied as follows:
In terms of your intent, in subsection J on page 5,
line 5, the 30 day requirement for reporting a
conviction would be, I am assuming, for convictions
that are happening after the effective date of the
act, but it is important that whatever intention you
have, it is on the record and or even better in the
legislation.
9:42:09 AM
SENATOR COGHILL addressed pages 3 and 4, line 25. He noted that
the "day of conviction" replaced "unconditional discharge." He
detailed that a conviction would be either sentencing or the day
of conviction. He set forth that judgment of conviction is
reasonable, but noted that sentencing really tells the whole
story if there are mitigating factors. He said the committee
needs to decide on conviction upon sentencing or judgment before
sentencing.
MS. CARPENETI replied that Senator Coghill's statement is the
reason why the date of sentencing is the one chosen for look-
backs. She asserted that a date of sentencing is the moment when
an individual undergoes a program for society.
CHAIR DYSON stated that no matter what happens in a sentencing,
the conviction has already happened. He added that a conviction
does not get bargained down to a lesser offense. He asked why
the sentencing date would be more significant.
MS. CARPENETI replied that the date of sentencing is generally
used for look-backs similar to the one proposed in SB 206.
9:44:48 AM
CHAIR DYSON commented that using the conviction date allows for
a look-back that goes further back. He said sentencing is often
weeks or months after a conviction.
MS. CARPENETI remarked that the offenses being addressed are
misdemeanors. She asserted that sentencing is often not months
afterwards and occurs much closer to the time of the
determination of guilt.
SENATOR WIELECHOWSKI addressed page 3, section 4, lines 9 and
10. He noted a possible scenario where a bus driver is fired due
to a delinquency of minor charge that occurred 30 years in the
past.
9:46:12 AM
SENATOR MICCICHE replied that the section referred to is not a
change and is currently in the law.
SENATOR WIELECHOWSKI said he believes the law is a little
extreme. He asserted that a school bus driver can be fired if
convicted 10 to 30 years in the past.
SENATOR MICCICHE stated that he would be willing to bring it
down to the misdemeanor section, but insisted that the section
in the bill is applicable.
9:46:49 AM
CHAIR DYSON declared that the committee will stand at ease.
9:57:28 AM
CHAIR DYSON called the committee back to order. He announced
that SB 206 will be held in committee and heard again at the
next committee meeting.
9:57:50 AM
CHAIR DYSON declared an initial adjournment.
9:57:59 AM
CHAIR DYSON called the committee back to order and announced
that public testimony [for SB 206] is closed.
9:58:04 AM
There being no further business to come before the committee,
Chair Dyson adjourned the Senate State Affairs Standing
Committee hearing at 9:58 a.m.