Legislature(2015 - 2016)BARNES 124


* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 75(CRA) Out of Committee
Moved CSHB 47(CRA) Out of Committee
            HB 104-IMMUNITY FOR FIRE DEPT. & MEMBERS                                                                        
8:20:12 AM                                                                                                                    
CHAIR TILTON announced that the final order of business would be                                                                
HOUSE BILL NO. 104, "An Act relating to immunity for a fire                                                                     
department and employees or members of a fire department."                                                                      
8:20:38 AM                                                                                                                    
DAN BELLERIVE, Staff, Representative Tilton, Alaska State                                                                       
Legislature, paraphrased from the following written statement                                                                   
[original punctuation provided]:                                                                                                
     House  Bill 104  was  brought  up in  our  office as  a                                                                    
     companion to a bill in the other body.                                                                                     
     This bill  intends to fix  an oversight that  failed to                                                                    
     include certain  fire departments when  providing legal                                                                    
     Under  current statute  some  immunities  are given  to                                                                    
     municipal fire  departments and  their members,  but no                                                                    
     protection is  provided for fire departments  are under                                                                    
     contract with the municipalities.                                                                                          
     We  feel  that  liability  protections  should  not  be                                                                    
     exclusive to  municipal fire departments and  should be                                                                    
     extended   to  all   fire  departments   that  have   a                                                                    
     contractual relationship with local government.                                                                            
     The  inclusion  of  these departments  is  accomplished                                                                    
     with  the  additional   definition  provided  on  lines                                                                    
     eleven and twelve of the bill.                                                                                             
     This amendment  mirrors an  amendment that  was offered                                                                    
     in  the  other  body  that was  offered  to  create  an                                                                    
     exception  from the  legal immunity  in  cases where  a                                                                    
     fire   department   or   its   members'   actions   are                                                                    
     intentionally   wrong   or   performed   with   extreme                                                                    
     The language  in this amendment  is similar to  that of                                                                    
     the  Immunity  for  911  systems,  where  there  is  an                                                                    
     exception for intentional acts of misconduct or gross                                                                      
8:21:59 AM                                                                                                                    
REPRESENTATIVE  SEATON  asked  if   this  extends  to  a  private                                                               
contractor  that is  providing  fire suppression  services for  a                                                               
business.   He further  asked if  the proposed  definition change                                                               
means that  the person  offering fire  services isn't  liable for                                                               
acts of negligence.                                                                                                             
MR. BELLERIVE explained  that HB 104 does  provide protection for                                                               
acts that are  considered negligent, which he  suggested could be                                                               
fixed  via an  amendment.   However, with  regard to  contractual                                                               
services, Mr.  Bellerive specified that the  legislation strictly                                                               
speaks to fire departments that  are contracted to the government                                                               
as opposed to a subscription service.                                                                                           
8:23:16 AM                                                                                                                    
JILL  DOLAN, Assistant  Borough  Attorney,  Fairbanks North  Star                                                               
Borough, noted  her agreement  with Mr.  Bellerive's explanation.                                                               
The current  language of HB  104 does offer complete  immunity to                                                               
fire  departments  as  well  as   their  employees  and  members.                                                               
However,  existing   statute  provides  immunity   for  municipal                                                               
employees and members of municipal  fire departments, but not for                                                               
those fire  departments with which the  municipality contracts to                                                               
provide  services.   Ms.  Dolan  further  clarified that  current                                                               
statute   offers  municipal   employees   and   members  of   the                                                               
[municipal]  fire department  complete  immunity,  and thus  they                                                               
wouldn't have  personal liability,  even for acts  of negligence.                                                               
For   the  municipality   itself,   for   its  fire   department,                                                               
discretionary function  immunity is offered in  subsection (d) of                                                               
the same statute.   This legislation, she  explained, extends the                                                               
immunity  for  employees  and  members  to  the  contracted  fire                                                               
departments for the  municipalities.  She pointed  out that there                                                               
is   additional  language   extending   immunity   to  the   fire                                                               
departments  themselves.     She   said,  "The   fire  department                                                               
themselves, in  the current  draft of the  bill, would  extend to                                                               
the acts  of negligence that  you inquired  about, Representative                                                               
8:24:50 AM                                                                                                                    
REPRESENTATIVE  SEATON  inquired as  to  how  far the  contractor                                                               
relationship  goes.    He  further inquired  as  to  whether  the                                                               
proposed extension  [of immunity] in HB  104 provides contractual                                                               
immunity to the person providing the fire suppression services.                                                                 
MS. DOLAN  clarified that  HB 104  wouldn't extend  [immunity] to                                                               
the  subscription services.   The  legislation intends  to extend                                                               
the  immunity  to  those  providing services  on  behalf  of  the                                                               
municipality or village.                                                                                                        
8:26:26 AM                                                                                                                    
REPRESENTATIVE HUGHES  inquired as to whether  a municipality can                                                               
contract with a for-profit fire service.                                                                                        
MS. DOLAN specified that a  municipality can contract with a for-                                                               
profit entity.   She clarified  that an individual  for-profit or                                                               
nonprofit entity  that did  not contract  with a  municipality or                                                               
village but  rather provided a subscription  service to residents                                                               
would not  be covered by  HB 104.   The legislation,  she further                                                               
clarified,  extends immunities  that are  currently available  to                                                               
municipalities to their contractors.   For example, the Fairbanks                                                               
North Star Borough  has fire service areas  that contract various                                                               
entities  to  provide  fire  services  to  its  residents.    The                                                               
intention with HB  104 was to extend immunities  available to the                                                               
municipality  to  those  contractors,  which  may  be  for-profit                                                               
8:28:12 AM                                                                                                                    
REPRESENTATIVE  REINBOLD asked  whether a  group of  users in  an                                                               
area where they are trying to  reduce the use of fire fuels would                                                               
be considered contractors and have immunity or not.                                                                             
MS. DOLAN responded, "If they are  in the execution of a function                                                               
for  which they're  established  and they're  contracting with  a                                                               
municipality for that  service, then they would be  covered."  In                                                               
further response to Representative  Reinbold, Ms. Dolan confirmed                                                               
that  without  a contract,  they  would  not  be covered.    This                                                               
legislation  wouldn't apply  to a  group performing  services for                                                               
the state.                                                                                                                      
8:29:18 AM                                                                                                                    
REPRESENTATIVE  HUGHES  inquired  as  to the  current  status  of                                                               
municipal  fire  departments  and  their employees  in  terms  of                                                               
complete immunity.                                                                                                              
MS.  DOLAN clarified  that under  existing statute  employees and                                                               
members of municipal fire departments  are offered immunity.  The                                                               
municipality  itself for  the fire  department, under  subsection                                                               
(d)  of the  statute,  has discretionary  function immunity  from                                                               
damages  claimed.   Municipal  fire  departments don't  currently                                                               
enjoy  complete  immunity,  rather  just  discretionary  function                                                               
REPRESENTATIVE HUGHES surmised  then that HB 104  would offer the                                                               
fire department itself complete immunity.                                                                                       
MS. DOLAN replied yes, as currently drafted.                                                                                    
REPRESENTATIVE HUGHES  further surmised  then that under  HB 104,                                                               
municipal fire  departments and contracted fire  departments with                                                               
municipalities  as   well  as   employees  and   volunteers  with                                                               
contracted  and municipal  fire departments  would have  complete                                                               
MS.  DOLAN confirmed  that Representative  Hughes  is correct  in                                                               
terms of the  current language of HB 104.   However, she informed                                                               
the committee  that an amendment  that would offer  immunity with                                                               
the  exception  of  acts  of   intentional  misconduct  or  gross                                                               
negligence  has  been  discussed  in relation  to  the  companion                                                               
legislation.   Ms.  Dolan  opined that  such  an amendment  would                                                               
resolve  Representative  Hughes'  concern   with  regard  to  the                                                               
complete immunity.                                                                                                              
8:31:53 AM                                                                                                                    
REPRESENTATIVE  HUGHES   related  her  understanding   that  this                                                               
legislation  would impact  about 10  fire departments  that don't                                                               
have  the same  immunity.    She then  asked  whether those  fire                                                               
departments  pay liability  insurance and  whether passage  of HB
104 would result  in a savings to those fire  departments if they                                                               
didn't have to have liability insurance.                                                                                        
MS. DOLAN said she couldn't  answer that question and deferred to                                                               
Chief Flynn, Steese Volunteer Fire Department.                                                                                  
8:32:59 AM                                                                                                                    
REPRESENTATIVE SEATON  expressed interest in clarification  as to                                                               
the universe of people covered  by HB 104, particularly since the                                                               
legislation  refers  to  a  village without  defining  it  as  an                                                               
established  village.   He posed  a scenario  in which  a village                                                               
contracts with an entity to  provide suppression services and the                                                               
same  contractor  provides  services  for an  oil  company  or  a                                                               
corporation that  had facilities.   In such a scenario,  he asked                                                               
whether  HB 104  would grant  immunity whether  the services  for                                                               
that contractor  were being provided  for that village  itself or                                                               
would  it  extend  to the  contractor  providing  services  under                                                               
potentially  a  separate  contractor  to a  business  within  the                                                               
community or the region.                                                                                                        
MS.  DOLAN  informed  the  committee that  this  section  of  law                                                               
operating  the immunity  is  titled  "Suits Against  Incorporated                                                               
Units  of  Local  Government."     She  then  explained  that  in                                                               
Representative  Seaton's   scenario,  the  definition   of  "fire                                                               
department"  in HB  104 would  cover  the village.   She  further                                                               
explained that  it was  intended to be  related to  a contractual                                                               
relationship,  and  thus  was  an  extension  of  a  governmental                                                               
immunity and was not intended  to cover the private functions the                                                               
entity would perform.   She offered to review it  more closely to                                                               
ensure  there  is  no unintended  consequence,  but  stated  that                                                               
wasn't the intent.                                                                                                              
REPRESENTATIVE  SEATON  requested   that  the  aforementioned  be                                                               
8:36:08 AM                                                                                                                    
REPRESENTATIVE HUGHES related her  appreciation for the volunteer                                                               
firefighters  around the  state.   She  then inquired  as to  the                                                               
training  and  qualifications  of the  contracted  and  volunteer                                                               
nonprofit fire fighters as opposed to municipal firefighters.                                                                   
MS. DOLAN deferred to others.                                                                                                   
8:38:13 AM                                                                                                                    
DAVID  GIBBS,  Director,  Emergency Operations,  Fairbanks  North                                                               
Star Borough, informed the committee  that training standards are                                                               
established  by  the  National Fire  Protection  Association  and                                                               
those  standards  are  followed   by  all  firefighters,  whether                                                               
volunteer  or   career  department.    Therefore,   the  training                                                               
provided  and   conducted  by   volunteer  fire   departments  is                                                               
identical to  that of  the career departments.   Mr.  Gibbs noted                                                               
that he also  serves on the Alaska Fire  Standards Council, which                                                               
establishes qualifications for firefighter  training.  He related                                                               
that  the Alaska  Fire  Standards  Council doesn't  differentiate                                                               
between career and volunteer departments.                                                                                       
8:39:17 AM                                                                                                                    
REPRESENTATIVE  HUGHES remarked  that although  she was  aware of                                                               
the aforementioned,  she felt  it important  for people  to know.                                                               
She then commented that Alaska has excellent firefighters.                                                                      
8:39:45 AM                                                                                                                    
REPRESENTATIVE  SEATON stated  his  interest  in the  appropriate                                                               
witness to  address whether the  term "community" should  be used                                                               
rather than "village."                                                                                                          
8:40:21 AM                                                                                                                    
CHAIR TILTON opened public testimony.                                                                                           
8:40:28 AM                                                                                                                    
JEFF  TUCKER,   Second  Vice   President,  Alaska   Fire  Chief's                                                               
Association, began by noting that he  is a past fire chief of one                                                               
of the departments that would be  impacted by HB 104.  Mr. Tucker                                                               
opined that  it's appropriate the legislature  consider extending                                                               
the  immunities  that are  enjoyed  by  municipal departments  to                                                               
those departments  who contract municipalities.   He related that                                                               
typically the ones impacted by HB  104 will be service areas that                                                               
were  formed   to  serve   communities  in   the  municipalities.                                                               
Examples of such areas are  the Fairbanks North Star Borough, the                                                               
Chugiak  and Girdwood  Fire  Departments.   The  [aforementioned]                                                               
agencies   provide    municipal   services    as   not-for-profit                                                               
corporations, they  may be  volunteer departments  or combination                                                               
departments.    Therefore,  extending  the immunity  to  them  is                                                               
important.   With  regard  to the  training  of firefighters,  he                                                               
confirmed  that  it's  the same  for  municipal,  volunteer,  and                                                               
combination departments.   In conclusion, he  related support for                                                               
HB 104 from the Alaska Fire  Chief's Association.  With regard to                                                               
Representative Seaton's question, Mr.  Tucker said he isn't aware                                                               
of any  villages that  currently contract with  a fire  entity or                                                               
corporation to  provide fire services for  the villages; however,                                                               
he admitted that doesn't mean there are not such situations.                                                                    
8:43:20 AM                                                                                                                    
MITCH  FLYNN, Fire  Chief, Steese  Fire Department,  testified in                                                               
support of HB 104.  The  legislation, he opined, will protect the                                                               
firefighters as well  as the taxpayers, who could  be held liable                                                               
for the  actions taken by the  firefighters and a lawsuit  that a                                                               
[firefighter/department]  couldn't   pay.    Mr.   Flynn  related                                                               
support for  HB 104  and pointed  out the zero  fiscal note.   He                                                               
then  related  that the  insurance  broker  for the  Steese  Fire                                                               
Department will realize  a cost savings on  the insurance premium                                                               
for general liability.                                                                                                          
8:44:50 AM                                                                                                                    
DOUG  SCHRAGE, Fire  Chief, University  of Alaska  Fairbanks Fire                                                               
Department,  related his  support for  HB 104.   He  then related                                                               
that  he is  a  member  and past  president  of  the Alaska  Fire                                                               
Chief's  Association   and  currently   sits  on  its   Board  of                                                               
Directors.  He explained that  the University of Alaska Fairbanks                                                               
(UAF)  Fire Department  is a  student-based fire  department that                                                               
provides fire  service to the  Fairbanks North Star Borough  on a                                                               
contractual  basis.   Therefore,  the UAF  Fire Department  would                                                               
benefit from the immunity extended under  HB 104.  As is the case                                                               
for many fire departments [in  the state], UAF Fire Department is                                                               
a one fire department, which  means the department is staffed and                                                               
equipped to handle one fire at  a time.  The UAF Fire Department,                                                               
he   explained,  is   also   a   workforce  development   program                                                               
responsible  for  providing  many   of  Alaska's  municipal  fire                                                               
departments with  experienced and  trained firefighters.   In the                                                               
current fiscal  environment, the concern with  liability could be                                                               
a  factor in  the  future  of the  program.    He reiterated  his                                                               
support  for  HB 104  and  noted  his  agreement with  the  prior                                                               
8:46:37 AM                                                                                                                    
VIRGINIA   MCMICHAEL,  Fire   Chief,  Chugiak   Fire  Department,                                                               
indicated that the  Chugiak Fire Department would  be impacted by                                                               
HB  104  as it's  a  nonprofit  agency  that has  been  providing                                                               
contract fire service to the  Municipality of Anchorage for quite                                                               
some time.   Municipal tax funds are used to  provide the service                                                               
to the  community and there  are almost 100 volunteers  who spend                                                               
100s  of  hours  annually  training  and  some  1,000s  of  hours                                                               
responding.     She  then  noted   that  many  of   Chugiak  Fire                                                               
Department's  responders are  career firefighters  and medics  in                                                               
other departments throughout the state  as well as retired career                                                               
firefighters.   In conclusion, Ms. McMichael  related the Chugiak                                                               
Fire Department's support for HB 104.                                                                                           
8:48:04 AM                                                                                                                    
CHAIR TILTON,  upon determining  no one  else wished  to testify,                                                               
closed public testimony.                                                                                                        
8:48:20 AM                                                                                                                    
REPRESENTATIVE SEATON, referring  to page 1, line 10,  of HB 104,                                                               
expressed concern  with the lack  of a definition  for "village."                                                               
He  then   questioned  whether  the  term   "village"  should  be                                                               
"community  as   recognized  by   the  Department   of  Commerce,                                                               
Community  & Economic  Development" as  fire is  one of  the five                                                               
criteria  for   providing  services  on  which   communities  are                                                               
recognized.  He noted that a  lot of communities in the state are                                                               
located in  organized and unorganized boroughs  that provide fire                                                               
CHAIR TILTON said she will look into that.                                                                                      
8:50:01 AM                                                                                                                    
CHAIR  TILTON  moved  that  the   committee  adopt  Amendment  1,                                                               
labelled 29-LS0550\A.1, Shutts, 2/27/15, which read:                                                                            
     Page 1, lines 7 - 8:                                                                                                       
          Delete "a fire department or"                                                                                         
     Page 1, line 8, following "department.":                                                                                   
          Insert "An action for tort or breach of a                                                                             
     contractual duty  based on  the act  or omission  of an                                                                    
     employee  or  member  of  a   fire  department  in  the                                                                    
     execution  of a  function for  which the  department is                                                                    
     established  may  not  be  maintained  against  a  fire                                                                    
     department  unless   the  action   alleges  intentional                                                                    
     misconduct or gross negligence."                                                                                           
     Page 1, following line 12:                                                                                                 
     Insert a new bill section to read:                                                                                         
        "* Sec. 2. AS 09.65.070(d) is amended to read:                                                                      
          (d)  Notwithstanding (c) of this section, an [AN]                                                                 
     action  for  damages  may  not  be  brought  against  a                                                                    
     municipality  or  any  of   its  agents,  officers,  or                                                                    
     employees if the claim                                                                                                     
               (1)  is based on a failure of the                                                                                
     municipality,  or its  agents, officers,  or employees,                                                                    
     when the  municipality is neither  owner nor  lessee of                                                                    
     the property involved,                                                                                                     
               (A)  to inspect property for a violation of                                                                      
     any statute,  regulation, or ordinance, or  a hazard to                                                                    
     health or safety;                                                                                                          
               (B)  to discover a violation of any statute,                                                                     
     regulation,  or ordinance,  or a  hazard  to health  or                                                                    
     safety if an inspection of property is made; or                                                                            
               (C)  to abate a violation of any statute,                                                                        
     regulation,  or ordinance,  or a  hazard  to health  or                                                                    
     safety discovered on property inspected;                                                                                   
               (2)  is based upon the exercise or                                                                               
     performance  or the  failure to  exercise or  perform a                                                                    
     discretionary  function or  duty by  a municipality  or                                                                    
     its agents, officers, or employees,  whether or not the                                                                    
     discretion involved is abused;                                                                                             
               (3)  is based upon the grant, issuance,                                                                          
     refusal,  suspension, delay,  or denial  of a  license,                                                                    
     permit,  appeal,  approval,   exception,  variance,  or                                                                    
     other entitlement, or a rezoning;                                                                                          
               (4)  is based on the exercise or performance                                                                     
     during the course of  gratuitous extension of municipal                                                                    
     services on an extraterritorial basis;                                                                                     
               (5)  is based upon the exercise or                                                                               
     performance of a duty or  function upon the request of,                                                                    
     or by the  terms of an agreement or  contract with, the                                                                    
     state to meet emergency public safety requirements; or                                                                     
               (6)  is based on the exercise or performance                                                                     
     of a duty in connection  with an enhanced 911 emergency                                                                    
     system  and  is not  based  on  an intentional  act  of                                                                    
     misconduct or on an act of gross negligence."                                                                              
REPRESENTATIVE SEATON objected.                                                                                                 
8:50:14 AM                                                                                                                    
MR.  BELLERIVE explained  that Amendment  1 mirrors  an amendment                                                               
offered to the companion legislation  in the Senate.  Amendment 1                                                               
provides an exception to legal immunity  in cases in which a fire                                                               
department  or its  member's actions  are intentionally  wrong or                                                               
performed with extreme  disregard.  The language  of Amendment 1,                                                               
he further explained, is similar to  that of the immunity for 911                                                               
systems in  which there is  an exception for intentional  acts of                                                               
misconduct or gross negligence.                                                                                                 
8:51:03 AM                                                                                                                    
REPRESENTATIVE SEATON  asked if Amendment 1  places the liability                                                               
on the training activities at  the University of Alaska Anchorage                                                               
and the Chugach Fire Department.                                                                                                
MR.  BELLERIVE replied  no, in  so  far as  the description  from                                                               
Legislative Legal Services.                                                                                                     
8:52:01 AM                                                                                                                    
MR. BELLERIVE, in response to  Representative Nageak, said he has                                                               
a memorandum  from Legislative Legal  Services that  outlines the                                                               
purpose and  functional changes of  the legislation.   In further                                                               
response to  Representative Nageak, Mr. Bellerive  specified that                                                               
he didn't receive  a memorandum for Amendment 1,  but did receive                                                               
an oral  explanation as  to the  changes of  the amendment.   Mr.                                                               
Bellerive  confirmed   that  Amendment  1  had   been  vetted  by                                                               
Legislative Legal Services.                                                                                                     
8:52:59 AM                                                                                                                    
The committee took a brief at ease.                                                                                             
8:53:53 AM                                                                                                                    
REPRESENTATIVE  SEATON  pointed  out   that  the  new  Section  2                                                               
language proposed  by Amendment  1 refers to  municipality rather                                                               
than village  or community.  He  asked if that is  an intentional                                                               
change or not.                                                                                                                  
MR. BELLERIVE answered  that it wasn't an  intentional change but                                                               
rather  was  made to  clarify  that  changes in  the  legislation                                                               
weren't   intended  to   negate  the   protections  afforded   in                                                               
subsection (d).                                                                                                                 
8:55:26 AM                                                                                                                    
REPRESENTATIVE SEATON further pointed out  that the new Section 2                                                               
language of Amendment  1 refers to a municipality  only while the                                                               
general protection located  on page 1, line 10, of  HB 104 refers                                                               
to  a  municipality  or  a  village.    Therefore,  he  requested                                                               
clarification on the language.                                                                                                  
8:56:02 AM                                                                                                                    
CHAIR  TILTON  announced  that  HB  104  and  Amendment  1  [with                                                               
Representative Seaton's objection] would be held over.                                                                          

Document Name Date/Time Subjects
Legal Memorandum, Conceptual Amendment to Amendment 2 Options.pdf HCRA 3/5/2015 8:00:00 AM
HB 75
HB104 Sponsor Statement.pdf HCRA 3/5/2015 8:00:00 AM
HB 104
HB104 Supporting Documents-Letter Mayor Luke Hopkins.pdf HCRA 3/5/2015 8:00:00 AM
HB 104
HB104 ver A.pdf HCRA 3/5/2015 8:00:00 AM
HB 104
HB104 Fiscal Note-DPS-FLS-02-27-15.pdf HCRA 3/5/2015 8:00:00 AM
HB 104
HB104 Draft Proposed Amendment ver A 1.pdf HCRA 3/5/2015 8:00:00 AM
HB 104