Legislature(2015 - 2016)CAPITOL 120

04/09/2015 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved HB 125 Out of Committee
-- Public Testimony --
<Bill Hearing Canceled>
Heard & Held
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
<Bill Hearing Canceled>
-- Public Testimony --
            SB  43-IMMUNITY FOR FIRE DEPT. & MEMBERS                                                                        
CHAIR LEDOUX announced that the  first order of business would be                                                               
SENATE  BILL NO.  43, "An  Act relating  to immunity  for a  fire                                                               
department and employees or members of a fire department."                                                                      
1:08:39 PM                                                                                                                    
JORDAN  SHILLING,  Staff,  Senator  John  Coghill,  Alaska  State                                                               
Legislature, said SB 43 relates  to contract fire departments and                                                               
affects  the fire  departments of  Fairbanks, Anchorage,  Chugiak                                                               
and Girdwood.  He offered  that government creates immunities for                                                               
itself in different areas which  is fairly common especially when                                                               
it comes  to public  safety and  fire departments  in particular.                                                               
He advised that most states  have statutes that protects the fire                                                               
departments  themselves and  its employees.   He  referred to  AS                                                               
09.65.070,  and  conveyed that  it  provides  immunity except  to                                                               
contract  departments.    He  offered   that  he  researched  the                                                               
legislative   history  of   AS  09.65.070,   and  noted   it  was                                                               
established in the  mid-1970s, and is not  clear whether contract                                                               
fire departments  were in  existence, and  that the  language was                                                               
crafted from a statute in Delaware.                                                                                             
1:10:21 PM                                                                                                                    
CHAIR  LEDOUX   asked  whether  contract  fire   departments  are                                                               
considered volunteer fire departments.                                                                                          
MR. SHILLING answered that these  are .501(C)(3), non-profits and                                                               
are mostly volunteer  based although the chief  will generally be                                                               
1:10:48 PM                                                                                                                    
MR. SHILLING  continued his presentation and  stated that because                                                               
the  Municipality  of  Anchorage   and  the  Fairbanks  Northstar                                                               
Borough contract  with these fire  departments and  utilize their                                                               
services  even  though  the  statute  doesn't  cover  those  fire                                                               
departments,  fire fighters,  and  volunteers.   In that  regard,                                                               
they are exposed to extra liability  that others are not and this                                                               
bill  extends that  immunity to  those departments.   He  advised                                                               
that initially  the bill was  introduced with full immunity.   He                                                               
further  advised  that  concerns  were expressed  in  creating  a                                                               
blanket  immunity so  the fairly  common carve  out exception  of                                                               
gross negligence  and willful acts  of misconduct was added.   He                                                               
pointed out  that the second change  to the bill was  as a result                                                               
of  Representative  Seaton's  suggestion   to  ensure  that  this                                                               
immunity  does not  somehow apply  to a  contractor of  a private                                                               
1:12:10 PM                                                                                                                    
CHAIR LEDOUX questioned "does not apply to ..."                                                                                 
1:12:12 PM                                                                                                                    
MR.  SHILLING  offered   the  example  of  a   village  having  a                                                               
relationship with a contract department,  and that department had                                                               
a subsequent  contract with a  private entity, the change  was to                                                               
ensure  that  this  bill  did not  somehow  protect  the  private                                                               
1:12:37 PM                                                                                                                    
CHAIR  LEDOUX  asked  whether this  only  covers  contracts  with                                                               
.501(C) organizations.                                                                                                          
MR.  SHILLING responded  that Chair  LeDoux was  correct in  that                                                               
these are mostly structured in that manner.                                                                                     
1:12:57 PM                                                                                                                    
REPRESENTATIVE GRUENBERG referred to  a 3/16/15, letter from Fire                                                               
Chief John  Fullenwider, Municipality  of Anchorage,  which read:                                                               
"These bill, if  enacted, will protect residents  by reducing the                                                               
risk  of liability  and frivolous  tort claims  against municipal                                                               
and non-profit  fire agencies."  He  asked what the bill  does to                                                               
change the liability of the municipality itself.                                                                                
MR.  SHILLING  answered  that municipally  operated  departments,                                                               
such as the Anchorage Fire  Department already has protections in                                                               
statutes  and this  bill does  not affect  those and  if anything                                                               
extends its protections, but certainly does not reduce it.                                                                      
REPRESENTATIVE GRUENBERG  said a  bill is forthcoming  related to                                                               
the issue  of retroactivity.  He  surmised that this bill  is not                                                               
retroactive and  will only  apply to claims  arising on  or after                                                               
the effective date of this Act.                                                                                                 
MR.  SHILLING  replied   "that  is  correct,  there   is  not  an                                                               
applicability section here so it would apply."                                                                                  
REPRESENTATIVE GRUENBERG  highlighted that  he is  serving notice                                                               
he may offer an applicability  section to state that this applies                                                               
to claims  arising on or  after the  effective date of  this Act.                                                               
Although, he realizes he may  have violated the 24-hour rule, but                                                               
it is important to make it clear.                                                                                               
1:15:48 PM                                                                                                                    
MR. SHILLING  opined that the drafter  of the bill may  be on the                                                               
line to  determine whether this is  a necessary change as  it may                                                               
be that this inherently only applies to claims on or after.                                                                     
REPRESENTATIVE GRUENBERG  offered that routinely  within criminal                                                               
law it includes the language, but  this issue has not been before                                                               
the House  Judiciary Standing  Committee this  year on  the civil                                                               
CHAIR LEDOUX opened public testimony.                                                                                           
1:17:34 PM                                                                                                                    
MITCH FLYNN,  Fire Chief, Steese Volunteer  Fire Department, said                                                               
the Steese  Volunteer Fire Department, a  non-profit organization                                                               
in Fairbanks, provides  fire and EMS services  through a contract                                                               
with the  Fairbanks Northstar Borough.   He noted that  last year                                                               
the legal  team at  the Fairbanks  Northstar Borough  pointed out                                                               
his department's  lack of  immunity protection  and vulnerability                                                               
to lawsuits.   He requested a change in the  Alaska Statutes that                                                               
provides   the   same   immunity  protections   as   offered   to                                                               
municipalities.  He explained there  are approximately seven non-                                                               
profit fire  departments statewide  contracting with  a municipal                                                               
government and providing the services  of fire and EMS, and noted                                                               
that the population base is  approximately 100,000 residents.  He                                                               
highlighted his concern that the  lack of immunity protection may                                                               
have  a   negative  impact  on   recruitment  and   retention  of                                                               
volunteers in the future.  On  a good note, he stated, by passing                                                               
this legislation it  may help identify costs  and annual premiums                                                               
for general liability  insurance that is paid out.   He described                                                               
the irony of the situation in  that his department may respond to                                                               
a  Fairbanks Northstar  Borough call  and yet  incur a  liability                                                               
claim  of which  affects the  taxpayer.   He remarked  it is  the                                                               
desire of  his department to  offer fire and EMS  services safely                                                               
and to the  best of its ability without the  fear of lawsuits and                                                               
unwanted claims.                                                                                                                
1:20:47 PM                                                                                                                    
DOUG  SCHRAGE, Fire  Chief, Fairbanks  University of  Alaska Fire                                                               
Department, Alaska Fire Chiefs Association,  said that the Alaska                                                               
Fire Chief Association represents most  of the fire and emergency                                                               
service  leaders throughout  the state.   He  said he  joins with                                                               
Chief  Flynn, local  colleagues,  and those  of  the Alaska  Fire                                                               
Chiefs Association  in support of SB  43.  He explained  that the                                                               
University  Fire  Department,  the Steese  Fire  Department,  and                                                               
several  others are  student based,  non-profit fire  departments                                                               
providing fire  protection to the Fairbanks  Northstar Borough on                                                               
a  contractual  basis.   As  such,  he  explained,  it is  not  a                                                               
municipal  fire department  and would  benefit from  the immunity                                                               
this bill affords.   He noted that of particular  concern is that                                                               
it is  a workforce development program  responsible for providing                                                               
many of Alaska's municipal fire  departments with experienced and                                                               
training  fire fighters.   He  pointed out  that in  this current                                                               
fiscal  environment,   at  the   University,  concern   over  the                                                               
liability this bill addresses could be  a factor in the future of                                                               
its  program.   For  those  reasons,  he  stated, he  joined  his                                                               
colleagues in supporting SB 43.                                                                                                 
1:22:52 PM                                                                                                                    
REPRESENTATIVE CLAMAN  asked what it  would look like for  a non-                                                               
municipal  fire department  in  terms of  where  there would  and                                                               
would not be potential liability, should SB 43 pass.                                                                            
CHIEF  SCHRAGE   responded  that   this  bill  extends   to  fire                                                               
departments  such as  his in  extending  immunity from  liability                                                               
essentially  under the  Doctrine  of Sovereign  Immunity to  non-                                                               
municipal  fire  departments.   He  described  the department  as                                                               
contractors  and  therefore  independent   of  the  municipal  or                                                               
borough  government  those  immunities   do  not  extend  to  the                                                               
departments or employees.   He described its  exposure to general                                                               
liability  as enormous  in  terms of  nonfeasance  or failure  to                                                               
provide  service all  the way  to  injury to  his employees,  and                                                               
noted  it may  be  a failure  to protect  the  citizens that  pay                                                               
taxes.   He  opined  that this  bill  would specifically  address                                                               
those sorts of immunities.                                                                                                      
REPRESENTATIVE CLAMAN offered  that currently municipalities have                                                               
greater protections  as it has  the protection of  the sovereign.                                                               
Whereas,  he  continued, a  volunteer  fire  department could  be                                                               
exposed  to  negligence  and  liability for  the  work  they  are                                                               
performing rather than the  gross negligence protection currently                                                               
afforded municipalities in the same setting.                                                                                    
CHIEF SCHRAGE offered "that is my understanding."                                                                               
1:25:06 PM                                                                                                                    
CHIEF SCHRAGE  responded to Representative  Gruenberg that  on an                                                               
elementary  level he  is  familiar with  the  legalities of  this                                                               
bill,  but  is  not  intimately familiar  with  the  nuances  and                                                               
effects of the various substitute versions and amendments.                                                                      
1:28:03 PM                                                                                                                    
The committee took an at-ease from 1:28 to 1:30 p.m.                                                                            
1:30:19 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  referred to  current law and  the House                                                               
Judiciary Standing  Committee CS,  and then referred  to [Section                                                               
1], AS 09.65.070(c), [page 1, lines 5-8], which read:                                                                           
          (c) 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 an  employee or member  of a                                                                    
     fire department ...                                                                                                        
REPRESENTATIVE GRUENBERG  highlighted that the first  sentence is                                                               
essentially  the  same  as  current  law  except  more  elegantly                                                               
1:31:11 PM                                                                                                                    
JILL  DOLAN,  Assistant  Borough  Attorney,  Fairbanks  Northstar                                                               
Borough, agreed with Representative  Gruenberg and noted that the                                                               
substantial  change is  the definition  of  fire department  that                                                               
begins on page 1, lines 13-24 ...                                                                                               
REPRESENTATIVE  GRUENBERG  interjected that  before  anticipating                                                               
his questions,  to refer to  the second sentence, [page  1, lines                                                               
8-23], which read:                                                                                                              
     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 or                                                                    
     is  based on  the act  or  omission of  an employee  or                                                                    
     member of a fire department  in the execution of a duty                                                                    
     under contract with a private entity.                                                                                      
REPRESENTATIVE   GRUENBERG   described   the  sentence   as   re-                                                               
establishing the liability  of ... the first  sentence deals with                                                               
an  action, on  line 6,  "or  omission of  an employee  ..."   He                                                               
offered that in  other words, if a person sues  a fireman because                                                               
he  dropped  a person  and  said  "burn,  burn," that's  what  it                                                               
applies.  In  the event a person sues the  fire department, which                                                               
is where the  second sentence comes in, on lines  10-11, "may not                                                               
be maintained against a fire department."   He opined that is the                                                               
essential difference  between the  first sentence and  the second                                                               
sentence.   Whereas,  he pointed  out, the  first sentence  is an                                                               
action against an employee, and  the second sentence is an action                                                               
against a fire department.                                                                                                      
1:32:47 PM                                                                                                                    
MS.  DOLAN answered  that  Representative  Gruenberg was  correct                                                               
with the additional  qualification that if the  action is against                                                               
a  fire department,  a  person can  still have  an  action if  it                                                               
alleges intentional misconduct or gross negligence.                                                                             
REPRESENTATIVE  GRUENBERG offered  that  Ms. Dolan  was one  step                                                               
ahead  of him  as  under current  law  a person  can  sue a  fire                                                               
department for  negligence.   He said  that "this"  immunizes the                                                               
fire  department itself,  whether  or  not it  is  volunteer.   A                                                               
person  can   no  longer  sue   it  unless  the   action  alleges                                                               
intentional misconduct or gross negligence, he reiterated.                                                                      
MS. DOLAN responded  that currently in AS  09.65.070(d) there is,                                                               
for municipal  fire departments, discretionary  function immunity                                                               
for  damages.    Therefore,  she explained,  currently  a  person                                                               
cannot maintain  an action for  damages against a  municipal fire                                                               
department  if it  is based  on  a discretionary  function.   She                                                               
further explained  that the same  immunity does not apply  to the                                                               
contracted fire  department, such as  what Chief Flynn  and Chief                                                               
Schrage   were   discussing,   as  they   are   contracted   fire                                                               
departments.   She related that  the intent was to  incorporate a                                                               
similar   immunity  and   to  Subsection   (c)  for   those  fire                                                               
1:34:18 PM                                                                                                                    
CHAIR LEDOUX  remarked that discretionary  immunity means  that a                                                               
fire department can't be sued  because it decided not to exercise                                                               
a  function.    For  example, the  Department  of  Transportation                                                               
(DOT), if  a division  does not  put up a  guard rail,  the state                                                               
cannot be sued.   In the event DOT puts up a  guard rail and does                                                               
not maintain  the guard rail, the  state can be sued.   She noted                                                               
that the first  example is discretionary and  a government cannot                                                               
be  sued for  not doing  something which  is discretionary.   The                                                               
government  can   be  sued  for   negligence  in   something  the                                                               
government decides to undertake.                                                                                                
MS. DOLAN  stated that Chair  LeDoux "is absolutely  correct," as                                                               
discretionary   functions   are   generally   aspects   involving                                                               
allocation of financial  resources.  She agrees that  once a duty                                                               
is undertaken  it generally  cannot be  taken in  a non-negligent                                                               
manner,  but   there  are   certain  on-the-scene   decisions  in                                                               
firefighting  that  could  be discretionary  because  it  entails                                                               
resource allocation  and those decisions  are vested in  the fire                                                               
chief in charge.  She offered  that the courts have extended some                                                               
discretionary  function  immunity in  the  context  of fire  that                                                               
would include on-the-scene decisions.                                                                                           
1:35:54 PM                                                                                                                    
REPRESENTATIVE GRUENBERG surmised  that discretionary actions are                                                               
immunized and the issue here  is regarding non-discretionary.  He                                                               
read that under  current law, if a person sues  a fire department                                                               
itself  rather than  the  individual,  for non-discretionary  the                                                               
standard  is  negligence.    He   referred  to  line  11,  "  ...                                                               
intentional or gross  negligence ..."  He stated that  is now the                                                               
standard and  opined it  was added  and was  not in  the original                                                               
bill.  He described it  as significantly raising the standard for                                                               
suing  a   fire  department   involved  in   a  non-discretionary                                                               
1:37:00 PM                                                                                                                    
MS.  DOLAN replied  that it  changes  the standard  for the  non-                                                               
discretionary  function.   The intent,  she  explained, was  that                                                               
because  contracted fire  departments cannot  enjoy discretionary                                                               
function  immunity  to  leave subsection  (d)  intact  and  allow                                                               
municipalities to  continue to enjoy  the immunity.   Instead, in                                                               
the context of looking at  fire departments in general, extend an                                                               
immunity that is  not a full and complete immunity  and limit it,                                                               
she highlighted.   She further  highlighted that  the intentional                                                               
misconduct or gross negligence language  is intended to limit how                                                               
far  that  immunity could  extend,  and  while listening  to  the                                                               
hearing with  the committee substitute  noted it is  not intended                                                               
to expand the immunity.                                                                                                         
REPRESENTATIVE GRUENBERG  opined that he  intends to look  at the                                                               
bill because it appears to go as far as it can go.                                                                              
CHAIR  LEDOUX announced  she would  hold the  bill as  it appears                                                               
this  bill  may  go  farther  than the  original  intent  of  the                                                               
1:38:20 PM                                                                                                                    
MR.  SHILLING advised  that upon  introduction of  the bill,  the                                                               
non-discretionary  immunity was  to non-discretionary  activities                                                               
for  fire departments.   He  stated  the only  action the  Senate                                                               
Community and  Regional Affairs Standing Committee  performed was                                                               
the  carve out  for intentional  misconduct or  gross negligence.                                                               
He noted the intention all along was to expand that immunity.                                                                   
REPRESENTATIVE GRUENBERG  opined that  the committee  should look                                                               
at the bill and ascertain that it does what was intended.                                                                       
CHAIR LEDOUX  closed public testimony  after ascertaining  no one                                                               
further wished to testify, and announced SB 43 is held over.                                                                    

Document Name Date/Time Subjects
HB0125A.PDF HJUD 4/9/2015 1:00:00 PM
HB 125
HB125 Fiscal Note - LAW.pdf HJUD 4/9/2015 1:00:00 PM
HB 125
HB125 Letter of Support CHPA.pdf HJUD 4/9/2015 1:00:00 PM
HB 125
HB125 Sponsor Statement.pdf HJUD 4/9/2015 1:00:00 PM
HB 125
HB125 Support Document Age 18 DXM Restriction States.pdf HJUD 4/9/2015 1:00:00 PM
HB 125
HB125 Support Document Know Your Medicine Cabinet.pdf HJUD 4/9/2015 1:00:00 PM
HB 125
SB43 Sponsor Statement.pdf HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 Letter of Support - AFD.pdf HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 Fiscal Note 1.PDF HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 Fiscal Note 2.PDF HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 Letter of Support - City of Fairbanks.pdf HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 Letter of Support - Fire Chiefs Assoc..pdf HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 Letter of Support - FNSB.pdf HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 Letter of Support - Interior Fire Chiefs.pdf HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 Summary of Changes.pdf HJUD 4/9/2015 1:00:00 PM
SB 43
SB43 ver P.pdf HJUD 4/9/2015 1:00:00 PM
SB 43