"TO DUNLEAVY" (v) "When a situation unexpectedly comes along giving you the power to help another in need, you instead try to extract some gain for yourself while harming the other."

 EXAMPLE:  "He dunleavied HB 44." As in when you find yourself as the chair of a committee in a special session with just one bill with strong bi-partisan support, and instead of quickly passing the bill, you water down its key provisions, and then add a lot of unrelated amendments that you had tried to pass in the regular session, but couldn't.

This is not how I intended to begin this post, but it seems to encapsulate a lot of analysis in a few words.  Below is the whole post which will show how I got to this point.  


I’ve learned while blogging over the years that it’s easy to form opinions about people I’ve never met and that when I meet them, I'm forced to deal with their complexities, not the cartoon image I originally formed.  I put up a post the other day entitled Sen. Dunleavy Plays Politics With Bill To Protect Kids From Sexual Predators.  I even suggested that if he didn't understand how significant his changes to HB 44 were, he was ignorant and if he did understand, he was venal.  Those are pretty harsh charges.  Not the kind of thing I usually write.

So I went to Wednesday’s hearing to see Dunleavy in person.  I wanted to  get a better sense of Dunleavy and reassess my judgment.

The title and poster are the result of realizing that 'venal' was not the right word, but I had trouble finding the perfect word.  I couldn't; so I coined one.  I would add that I found Dunleavy to be strongly committed to a set of values and I think he's sincere about them and is willing to fight to promote them.  He appears to be one of those folks who is so certain that he's right, that it's easy for them to disregard those who disagree with him.  However, his manner was respectful and, for the most part, restrained.  He did get passionate at the end about the importance of protecting parental rights in a time when government is so invasive in people's lives.  Making decisions is much easier for such people, because they don't appear to doubt their correctness.  While he listened to opposing arguments, he easily dismissed them all, and there were no changes to the bill before it was passed. I'd note that this characteristic crosses party lines, but it comes easier with those used to having the power.  I know that a lot of other legislators probably fit the Dunleavy definition I've written.  Dunleavy just happens to be the person  I was trying to understand that led to this definition.  

So, to start from some arbitrary beginning . . .

What I'd like to do here is evaluate my own charge (and others') that Dunleavy was "playing politics" as well as to evaluate whether my either/or characterization was fair.  (Spoiler:  it wasn't.) 



What Does "Playing Politics" Mean?  

Cambridge Dictionary:  to use a situation or the relationships between people for your own advantage

The Free Dictionary: 

1. Lit. to negotiate politically.

2. to allow politics to dominate in matters where principle should prevail.

Next, I'll go through the arguments against the committee substitute for HB 44 and Dunleavy's responses.  Then I'll give an overview of the changes to HB 44.

I'll try to come to conclusions on the pro and con arguments and, finally, whether this is an example of  'playing politics.'  [I tried to cleanly separate out the analysis in its own sections, but as you'll see, some has slipped in earlier as well.]  So hang in there, or skip down to the sections that most interest you.  Going through this closely has raised a lot of issues for me that weren't originally apparent.


The Reasons People Argued Against The Changes To HB 44 (Erin's Law)

1. The Changes Gut The Bill -  Making parents sign permission forms before a child can be in the program  ('opting in'), instead of requiring parents to object if they don't want the child in ('opting out') means fewer kids will be exposed to this critical information. Likewise, not requiring school districts to adopt this material will reduce the number of kids who get this information.
   
   Further, the original bill called for age appropriate material for all kids from kindergarten through 12th grade.  The amended version limits it to 7th-12th grade.   50% or more of the target audience is cut out.   People argued that by 7th grade it is too late. Kids are molested much earlier than that and need the training early.
    
2. Adding amendments to a clean HB44, that the governor specifically mentioned for passage in the special session, raises a number of problems:
1. Jeopardizes passage of the bill.   HB 44 was a very focused and clear three page bill which passed the house this year 34-6 and the senate last year unanimously (without the teen dating violence part).  The new version is  a mashed together nine page bill with several controversial sections that have not had careful discussion or had public testimony and could get HB 44 stalled or killed, especially under the bizarre circumstances the legislature is now in. 
2. Raises constitutional problems:  It's questionable whether adding the new language will be constitutional.
3. Tacks on Dunleavy's pet issues.  The amendments came from bills that Dunleavy introduced or supported  but couldn't get through during the regular session.

Dunleavy's Responses:  [I was hoping the audio of Wednesday's hearing would be up  so I could pull out exact words. It wasn't up yesterday when I wrote most of this and I still don't see it today.]

1. Changing the program to "opt in" for parents and giving school districts the choice to not use it is important because parental rights are being eroded by schools and the government.  Parents need the power to control what their kids learn at school.  Sen. Giessel added at one point, that parental rights don't come from government, but from God.
2. (Addressing Senator McGuire directly) There is nothing wrong with amending bills, it's how the legislative process works.  You amended the original Erin's Law to add in training on teen dating violence awareness.  I didn't do anything different.  And this bill was delayed in the regular session while you were out of town because of a family emergency.  
1. All the added sections were important and related to education.  They strengthen parental rights and clear up other issues.  The last part, getting rid of the requirement for schools to offer ACT, SAT, or KeyWorks tests, saves money.  
2. Here's the legal opinion.  Dunleavy had staffer Sheila Peterson relate a message from Leg Legal on this.   She basically said, if a judge were to rule narrowly, there would be problems.  If broadly interpreted, it would be ok.   I got a copy of the memo on Wednesday, (but I can't find it online for you with the other documents).  I would say Peterson's interpretation was not inaccurate, but rosier than what was written. 
   
   The memo says in part:
   

   "In the Governor's proclamation declaring a special session, the subject is limited to consideration of:[T]he passage of bills on the following subjects:
   1.  House Bill 44 - Sexual Abuse/Sexual Assault Prevention Programs, previously under consideration in the Senate and the House . . . ."
   
   "If the subject is construed narrowly, many of the provisions of the committee substitute you requested would fall outside of the subject, as they are not related to sexual abuse or sexual assault awareness programs. . .

   
   "If, on the other hand, the scope of the subject is interpreted in accordance with legislative rules regarding germaneness and the constitutional single subject rule, it is likely permissible to include at least some of the provisions you have asked to add to CSHB 44(FIN) through the committee substitute."

   
   It goes on to say that if it were all passed and challenged in court, it's not clear if the court would use the broader regular session test of germaneness or a narrower one relating to the Governor's proclamation for the special session.  But note, the opinion says that even with a broad interpretation  "at least some of the provisions" would stand, implying that others wouldn't.  The charge against the substituted bill was that it raised constitutional questions.  This opinion verifies that. At best for Dunleavy, it says "you might have a chance that some provisions would survive."
   
   3.  Dunleavy agreed the other material came from bills he and others had proposed.  He saw nothing wrong with this.  Legally, he's right.  But there was very little or no discussion about the various aspects of the bill except for the idea of strengthening parental rights and eliminating the college and work prep testing,  which only have been in existence for one year.  This would, he said, save money in the bad budget year. (I know a road through the university he could cut which would save way more money if that's his goal.)  He added that such amendments were just part of the legislative process. 
   
   His conclusion was that his amendments made this an excellent bill.  His defense was more opinion and rhetoric than logic and fact. 
   
   While people have graphically presented the harm caused by sexual abuse, Alaska statistics, and how cutting provisions of the bill will expose kids to abuse and even death, there was no evidence presented that showed what harm would be caused to parents and kids if the bill had been left as it was.  Dunleavy only invoked general concerns about the erosion of parental rights.  

What Was Added?

The new sections includes a slew of topics.  I've tried to group them for simplicity here.  S1 refers to Section 1, etc.  I've put the whole list of sections provided by Leg Legal in a box on the bottom so you can see for yourself. 

Brief overview of issues added to the bill.  (S16 is the amended version of the original HB 44)

Parental Permission : S2- gives parents permission to withdraw their kids from any school activities involving human reproduction and sexual matters or divulging of personal or family family affairs S6, S7 requires parental permission for all school surveys, info on access to survey info Challenging Courses For Credit: S3, S4 limits grades and assessment procedures for challenging courses for credit Prohibits Contracting With Abortion Providers S5, S17 (The prohibition covers 'organizations that contract with schools' as well as school districts) Rules For Training Of School Employees S8, S9, S10, S11, S12, S13, S19, S20 Physical Exams for Students and Teachers S14, S15 Allows Districts To Adopt Sexual Abuse And Teen Dating Violence Awareness Training (This is the original HB 44, but amended as explained above) S16 Allows For Existing Department Records To Be Used For Background Checks S21 Repeals Requirements For College And Career Preparedness Testing S23

The original bill, you can see, is now only one of 23 different sections!


ANALYSIS

Complaints about the changes and Dunleavy's responses

1.  Was the bill 'gutted'?

Clearly, fewer children will be exposed to this training than before because:

1.  Parents must give permission before a student can take the program.  Getting prior permission is more difficult than requiring parents to take steps to opt their children out.
2.  Schools are no longer required to implement this program.  Again,  requiring all schools to use the program is likely to cover more kids.
3.  Exempting K-6 grade kids cuts out half the target audience and means kids who are most vulnerable and least prepared to deal with sexual abuse will not get the training.

I learned long ago, as a teacher, that if I asked, "Does anyone have a question?" I got the same number of raised hands as I did when I asked, "Who understands this?"  Taking action is more work than not taking action, and fewer kids will get into these classes if parents have to sign a permission slip than if they have to sign a 'no permission' slip.

I would note that one of the documents available online includes a list of school districts that already have training.  It includes the biggest school districts - Anchorage, Mat-Su, Fairbanks, Juneau - and a number of smaller districts.  So lots of students are already getting this training in some form.  However, the list only says whether there is sexual abuse awareness training and teen dating violence training.  It doesn't say what grade levels get the training or any other details.

I do understand how Dunleavy can convince himself that the changes are minor, and because so many districts already offer some training, he's not totally wrong.  But half the kids (K-6) were cut out of the bill!  We simply disagree on the significance of the threat to parental rights compared to the threat to children's safety.  We have dire statistics that show Alaska is the worst state in the nation when it comes to child sexual abuse, domestic violence, and general violence against women. We don't have evidence that Alaskan parents' rights are less than in other states and that this causes them irreparable harm as we know that abuse causes.  Suppose the changes mean that 30 kids per year or per month, will get abused because of the changes in the bill.  Because their schools don't offer the program or their parents don't sign the permission slip, or they're in K-6, they won't get training  and thus won't be able to recognize an abuser and won't be empowered to protect themselves or to report it right away.   Given our numbers, that's a real possibility, and to me, it's a big deal.  I don't see the compensating benefits in the changes that make up for the harm to those kids who will be abused because they didn't get the  this education.  No one identified any specific harm that would be caused to parents or their kids if the bill would have been passed as it was, without changes. 

To me the amendments clearly weaken this bill.  The changes are not minor. 

2.  Were the bill's chances of success weakened?

2-1.  Controversial and unvetted issues.  Two new sections (S5 and S17) appear to be aimed at one organization - Planned Parenthood.   Dunleavy is strongly anti-abortion and believes his religiously based views trump my views and others' views.  Dunleavey's views are the minority opinion in Alaska and the United States, but he believes he knows better than the rest of us.  Anchorage's recent mayoral election when a strongly pro-choice candidate soundly beat a strongly anti-choice candidate, emphasizes this.  Inserting the anti-abortion language in this bill poisons it and Planned Parenthood is not shy about going to court. These are not uncontroversial amendments.

S2 gives parents permission to withdraw their kids from any school activities involving human reproduction and sexual matters or divulging of personal or family family affairs.  I think there ought to be a lot of public discussion to clarify exactly what that means.  Would it prevent a teacher or school nurse from asking a child about bruises and how they got them?  Would it prevent a teacher from asking a student why he was falling asleep in class every day or is suddenly very quiet and non-responsive?  While I can think of a lot of things that teachers should probably not be asking about one's family, I also think the language is so broad there could be conflicts here with mandatory responders' ability to determine whether a child is being abused or neglected at home.  But there was no discussion on this at the hearing whatsoever.

I understand the concern for parental rights.  When my kids were in school, my wife and I were very active in monitoring our kids' education.  We spoke up when we disagreed and advocated for improvements.  I also understand that a lot of parents do not have the knowledge and experience or professional training to be able to effectively advocate for their kids.  I think having parent advocates  available would be very helpful for many parents.  But when we speak of parents' rights, we have to recognize that there are parents who are dysfunctional and fail to support and protect their kids.

S21 allows people applying for work to use the background check that is already on record with the department.  I can see the benefit of not having to go through a whole new background check.  But what happens when there are recent violations that didn't exist when the first background check was made?  I don't know if this is a serious issue, but there was no discussion on it at all.  It's one more thing in this bill that could give a little more opportunity for abusers, and prevent passage of the bill. 

The real irony of all this is that it's parents and other close relatives who do most of the sexual abuse of kids.  Protecting the ability of abusive parents to prevent those kids from getting sexual abuse awareness education so they can protect themselves from their parents and other relatives is inherently, though not intentionally, imbedded in the  parents' rights that Dunleavy is pushing.  Dunleavy took umbrage that people insinuated  that he was complicit in hurting kids by his amendments.  Good people can take principled actions that cause harm.  And I'm sure George W. Bush takes umbrage in the charge that invading Iraq resulted in greater instability and death for Iraqis and destabilized the region.  Those sections added to this bill that strengthen parents' rights, also take power away from abused kids.   It's the abusive parents who will be most interested in keeping their kids out of these classes. 

The need for lengthy discussion to clarify the legality and implications of these and other sections that were added into the bill, do raise legitimate concern about the bill's passage.

Sen. Dunleavy's responses were aimed at equating these amendments to Sen. McGuire's amendment that added teen dating violence to the bill during the regular session.  He changed the debate from whether the amendments were controversial and germane, to whether it was ok, in general, to make amendments.  He didn't really defend his position other than to say the amendments made the bill stronger, which, in my analysis, is definitely not the case. 

2-3.  Constitutionality -  The legal opinion said it would depend on a judge's interpretation  and the outcome could not be predicted.  And even the broadest interpretation would only protect some of the new sections.  In other words, the attorney couldn't say that the bill would survive a court challenge.  The opinion said that some of the sections might survive.  I don't see how anyone can logically argue that opinion doesn't support the critics' charge that the changes raise constitutional issues.   

2-4  Just taking an opportunity to get his own pet issues passed - Some of the amendments come from SB 89, a bill on Parental Rights that Dunleavy sponsored and two of the three other education committee members who voted for this bill -  Giessel and Huggins -  co-sponsored.  Adding these measures onto HB 44 clearly gives Dunleavy (and the other committee members) an unexpected shot at something they already had lost, but the amendments in no way help the original HB 44 get passed.  One could argue that they, along with the changes to HB 44 itself, make it harder. The point isn't that it's bad to add amendments in general, but that these amendments don't strengthen the bill and hurt its chances of passage.


I'm not making judgments on the merit of the changes to HB 44, but rather evaluating them against the challenges of the critics of the changes and the defense of the changes.   The intent of my comments is not to challenge the new provisions, but merely evaluate whether they strengthen or weaken the goal of Erin's Law.  There's no question, that a 'sure pass' by the senate has been made questionable.  That a pass of the revised bill would result in a much less effective Erin's Law, and one that has a questionable chance of surviving a legal challenge on constitutional grounds.


"Playing politics" or not?

So, this gets us to whether Dunleavy was playing politics or not.   Let's retrieve the definitions:

Cambridge Dictionary:  to use a situation or the relationships between people for your own advantage

The Free Dictionary: 

1. Lit. to negotiate politically.

2. to allow politics to dominate in matters where principle should prevail.

Using the Cambridge definition, there's no doubt.  He had the choice to leave HB 44 as it was and send it for speedy passage.  Instead, he made changes that weakened the bill (we can debate how much it weakened the bill, but there's no question that it did)  and added in language from a bill he had sponsored but hadn't gotten passed, which weakens the chances of the bill's passage.  (I haven't talked about the details of what happens next, but even if the bill passes the Senate, which it likely will, it has to be reconciled with the original House version.  Since the House sponsor is also the Speaker of the House, there's a good chance that won't happen.  But if it does, there's the question of whether the Governor will sign it or veto it. Erin Merryn, the woman who is the namesake of this sort of legislation and has gotten it passed in 23 states has said she does not support the amended bill. )

Dunleavy took an opportunity to negotiate something he wanted onto a stand alone bill that had a strong chance to pass and the changes now put the bill in jeopardy.    I'd say that fits the first two definitions quite neatly.

I would allow that Dunleavy might reasonably argue whether the facts fit with the second Free Dictionary definition.  He probably would argue that he was very much working on principle.  He strongly articulated his belief in strengthening parental rights.  But I would counter argue that those who have fought to pass Erin's Law are also doing it on principle, and that if most people had to choose between sacrificing protection from abuse for kids,  or protecting parents' rights, the kids would win.  It has been, after all, patriarchal rights and the idea of children (and wives) as chattel, that have allowed for all kinds of child abuse for centuries.  It's not an either/or proposition, it's not easy to balance.  But when kids get abused, it gets much easier to decide, but then it's too late.  And in a democracy, the principle of fair process has got to be one of the most important for a legislator.  Otherwise, legislators can simply take advantage of their positions of power to forward their own interests.  Which is not to suggest he did anything that isn't perfectly legal, but he has watered down a pretty sure winner and further burdened it with marginally related amendments.

And when I originally put up the post about Dunleavy playing politics, and even when I started this post, I wasn't aware that Dunleavy was considering running for the US Senate seat against Lisa Murkowski and didn't even consider how this debate and attention might help him with the most conservative side of the Republican party.   I suspect that he would have made these amendments anyway, but it adds ammunition to those who claim he's playing politics here. 

Is Ignorant or Venal a valid claim?

Venal means, according to the Oxford dictionary:

"Showing or motivated by susceptibility to bribery"

I see no evidence of anything like bribery here and I was totally wrong to use this word (and I have corrected it in the original post and apologized to Dunleavy.)  It was a bad choice of words. 

But I do think that Dunleavy's defense of his position was not entirely straightforward.  He had to know that his amendments to HB 44 watered it down and that his amendments were of a very different type than McGuire's.  Yet he never acknowledged this.  McGuire's amendments were directly relevant to the original bill and strengthened it.  Dunleavy's are marginally relevant, weaken the bill, and advance his agenda to the detriment of Erin's law.  He's right that this is part of the legislative process, and I'm sure that's part of  the reason that politicians are held in such low esteem.    

But if venal is the wrong word, what's the right one?  I've been unsuccessful finding the perfect word.  For example,  'crafty' which the Oxford dictionary defines as:

"Clever at achieving one’s aims by indirect or deceitful methods"

has some of the elements, but isn't quite right.

I don't know if  Dunleavy was merely indirect or actually deceitful.  I'm not sure he's even being clever or that he will achieve his ends. I don't know for sure what his ends are.  What I really need is a new word.

So I'm coining a definition for "TO  DUNLEAVY"   which I'll define as:

"When a situation unexpectedly comes along giving you the power to help  another in need, you  instead try to extract some gain for yourself while harming the other."  

EXAMPLE:  "He dunleavied HB 44."   As in when you unexpectedly find yourself as the chair of a committee in a special session with just one bill with strong bi-partisan support, and instead of quickly passing the bill, you water down its key provisions, and then add a lot of unrelated other amendments that you had tried to pass in the regular session, but couldn't.

From Legislative Affairs Legal Services - Sectional Summary of SCS CSHB 44

Section 2.  Requires local school boards to adopt policies allowing parents to withdraw their children from any activity, class, program, or standards-based assessment required by the state to which the parent objects. Section 3.  Limits AS 14.03.073, which allows students to challenge courses for credit, to apply only to students in grades nine through 12. Section 4.  Clarifies that school districts do not have to establish assessment tools for all courses offered in grades nine through 12 for purposes of challenging a course. Section 5.  Prohibits school districts and educational services organizations that contract with school districts from contracting with abortion services providers. Section 6.  Prohibits school districts, principals, other persons in charge of schools, or teachers from administering a questionnaire or survey unless written permission is obtained from a student's parent or guardian. Section 7.  Amends AS 14.03.110(d) to require schools to inform parents or guardians of who will have access to results of questionnaires or surveys. Section 8.  Requires regional school boards to establish procedures to provide required training for school employees. Section 9.  Requires borough and city school boards to establish procedures to provide required training for school employees. Section 10.  Requires the State Board of Education and Early Development (the board) to establish procedures for training employees of state boarding schools. Section 11.  Allows school districts to determine how frequently to provide training related to selection of nondiscriminatory textbooks and educational materials. Section 12.  Allows school districts to determine how frequently to provide employee evaluation training for certificated school employees. Section 13.  Allows a school district to determine how frequently to provide alcohol and drug related disabilities training for school teachers, administrators, counselors, and specialists. Section 14.  Removes "additional" from AS14.30.070(b), which pertains to physical examinations for students required by the Department of Health and Social Services. Section 15.  Prohibits school districts from paying the costs of physical examinations for teachers. Section 16.  Provides that the governing bodies of school districts may adopt policies establishing training programs for employees and students related to sexual abuse and sexual assault awareness and prevention and, in grades 7 - 12, dating violence and abuse awareness and prevention. Section 17.  Prohibits school districts from permitting abortion services providers to offer, sponsor, or furnish course materials or instruction related to human sexuality or sexually transmitted diseases. Section 18.  Makes conforming amendments to AS 14.30.370. Section 19.  Allows school districts to determine how frequently to provide school crisis response training. Section 20.  Requires continuing education related to domestic violence and sexual assault to be provided once every five years for state or local public employees. Section 21.  Allows a person who possesses a valid teacher certificate and applies to work at a facility licensed or certified by the department or who applies to work at a child care facility or residential child care facility to request that the person's criminal justice information and national criminal history record check on file with the department be used to satisfy criminal history check requirements for the Department of Health and Social Services. Section 22.  Modifies state agency training intervals for recognition and reporting of child abuse for mandatory reporters of child abuse and neglect and allows school districts to determine how frequently to provide the training. Section 23.  Repeals AS 14.03.075(a), (b), (c),and (e)(1), and AS 14.07.165(a)(5) and (b) which relate to college and career readiness assessments; and AS 14.30.070(a) and 14.30.120, relating to physical examinations required for students.