HCS CSSB 186(STA): "An Act relating to the Alaska Executive Branch Ethics Act; and providing for an effective date."
00 HOUSE CS FOR CS FOR SENATE BILL NO. 186(STA) 01 "An Act relating to the Alaska Executive Branch Ethics Act; and providing for an 02 effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 39.52.110(b) is amended to read: 05 (b) Unethical conduct is prohibited, but there is no [SUBSTANTIAL] 06 impropriety if, as to a specific matter, a public officer's 07 (1) personal or financial interest in the matter is [INSIGNIFICANT, 08 OR] of a type that is possessed generally by the public or a large class of persons to 09 which the public officer belongs; [OR] 10 (2) action or influence would have insignificant or conjectural effect 11 on the matter; or personal or financial interest in a matter is in regard to a 12 business and the public officer 13 (A) does not own a controlling interest in the business; 14 (B) does not own stock or options to buy stock that, when
01 combined, 02 (i) equal more than one percent of the stock in the 03 business; or 04 (ii) have a total value of more than $10,000; 05 (C) owns or has an option to buy 06 (i) less than one percent of the equity interest in the 07 business; and 08 (ii) an equity interest in the business worth less than 09 $10,000; 10 (D) is not a member of the board of directors or another 11 governing body of the business; 12 (E) is not an elected officer of the business; 13 (F) does not provide or have an option to provide personal 14 or professional services to the business; 15 (G) does not have a contract or have an option for a 16 contract with the business; and 17 (H) is not an employee of the business. 18 * Sec. 2. AS 39.52.130(f) is amended to read: 19 (f) A public officer who knows or reasonably ought to know that an 20 immediate [A] family member or a business associate has received a gift because of 21 the family member's or business associate's connection with the public office held by 22 the public officer shall report the receipt of the gift by the family member or business 23 associate to the public officer's designated supervisor if the gift would have to be 24 reported under this section if it had been received by the public officer or if receipt of 25 the gift by a public officer would be prohibited under this section. 26 * Sec. 3. AS 39.52.140 is amended to read: 27 Sec. 39.52.140. Improper use or disclosure of information. (a) A current or 28 former public officer may not disclose or use information gained in the course of, or 29 by reason of, the officer's official duties or position that could in any way result in the 30 receipt of any benefit for the officer, [OR] an immediate family member, or a 31 business associate if the information has not also been disseminated to the public.
01 (b) A current or former public officer may not disclose or use, without 02 appropriate authorization, information acquired in the course of official duties or by 03 reason of the officer's position that is confidential by law. 04 * Sec. 4. AS 39.52.150(a) is amended to read: 05 (a) A public officer, [OR] an immediate family member, or a business 06 associate may not attempt to acquire, receive, apply for, be a party to, or have a 07 personal or financial interest in a state grant, contract, lease, or loan if the public 08 officer may take or withhold official action that affects the award, execution, or 09 administration of the state grant, contract, lease, or loan. 10 * Sec. 5. AS 39.52.150(c) is amended to read: 11 (c) The prohibition in (a) of this section does not apply to a state loan if 12 (1) the public officer does not take or withhold official action that 13 affects the award, execution, or administration of the loan held by the officer, [OR] an 14 immediate family member, or a business associate; 15 (2) the loan is generally available to members of the public; and 16 (3) the loan is subject to fixed eligibility standards. 17 * Sec. 6. AS 39.52.150(d) is amended to read: 18 (d) A public officer shall report in writing to the designated supervisor a 19 personal or financial interest held by the officer, [OR] an immediate family member, 20 or a business associate [,] in a state grant, contract, lease, or loan that is awarded, 21 executed, or administered by the agency the officer serves. 22 * Sec. 7. AS 39.52.230 is amended to read: 23 Sec. 39.52.230. Reporting of potential violations. A person may report to a 24 public officer's designated supervisor, under oath and in writing, a potential violation 25 of AS 39.52.110 - 39.52.190 by the public officer. The supervisor shall provide a copy 26 of the report to the officer who is the subject of the report and to the attorney general, 27 and shall review the report to determine whether a violation may exist. Except where 28 the report concerns the governor, lieutenant governor, or the attorney general, 29 the [THE] supervisor shall act in accordance with AS 39.52.210 or 39.52.220 if the 30 supervisor determines that the matter may result in a violation of AS 39.52.110 - 31 39.52.190. If the report concerns the governor, lieutenant governor, or the
01 attorney general, the supervisor shall refer the report as provided in (b) of this 02 section. 03 * Sec. 8. AS 39.52.230 is amended by adding a new subsection to read: 04 (b) If a report or allegation of a violation of AS 39.52.110 - 39.52.190 by the 05 governor, lieutenant governor, or attorney general comes to the attention of the 06 designated supervisor for the governor, lieutenant governor, or attorney general, other 07 than by the declaration of a potential violation by the governor, lieutenant governor, or 08 attorney general under AS 39.52.210(a)(2) or by the filing of an ethics complaint 09 under AS 39.52.310(b), then, 10 (1) in the case of a report or allegation against the governor or the 11 lieutenant governor, the attorney general shall refer the matter to the personnel board, 12 which shall appoint an independent counsel to investigate; the independent counsel 13 shall have power to issue and enforce subpoenas under AS 39.52.380 and 39.52.390; 14 the independent counsel shall prepare a written report of the investigation; the written 15 report must include findings of fact and a conclusion as to whether, in the opinion of 16 the independent counsel, the facts constitute conduct in violation of AS 39.52.110 - 17 39.52.190; the report of the independent counsel shall be submitted to the attorney 18 general; the attorney general shall review the report and make an independent 19 determination as to whether the independent counsel's findings of fact, if true, would 20 constitute conduct in violation of AS 39.52.110 - 39.52.190; if the attorney general 21 concludes that the facts as found by the independent counsel would constitute a 22 violation of AS 39.52.110 - 39.52.190, then the attorney general shall treat the 23 independent counsel's report as a complaint and shall refer the report to the personnel 24 board under AS 39.52.310(c); if the attorney general concludes that the facts as found 25 by the independent counsel would not constitute a violation of AS 39.52.110 - 26 39.52.190, the investigation shall be closed and no further enforcement action shall be 27 taken; nothing in this paragraph precludes a person from filing a complaint concerning 28 the same matter under AS 39.52.310(b); 29 (2) in the case of a report or allegation against the attorney general, the 30 governor shall refer the matter to the personnel board, which shall appoint an 31 independent counsel to investigate; the independent counsel shall have power to issue
01 and enforce subpoenas under AS 39.52.380 and 39.52.390; the independent counsel 02 shall prepare a written report of the investigation; the written report must include 03 findings of fact and a conclusion as to whether, in the opinion of the independent 04 counsel, the facts constitute conduct in violation of AS 39.52.110 - 39.52.190; the 05 report of the independent counsel shall be submitted to the governor; the governor 06 shall review the report and make an independent determination as to whether the 07 independent counsel's findings of fact, if true, would constitute conduct in violation of 08 AS 39.52.110 - 39.52.190; if the governor desires legal advice in making this 09 determination, the personnel board, at the governor's request, shall appoint an 10 additional independent counsel to advise the governor on legal issues; if the governor 11 concludes that the facts as found by the independent counsel would constitute a 12 violation of AS 39.52.110 - 39.52.190, then the governor shall refer the report to the 13 personnel board for appropriate action in accordance with the procedures set out in 14 AS 39.52.310(c); if the governor concludes that the facts as found by the independent 15 counsel would not constitute a violation of AS 39.52.110 - 39.52.190, the 16 investigation shall be closed and no further enforcement action shall be taken; nothing 17 in this paragraph precludes a person from filing a complaint concerning the same 18 matter under AS 39.52.310(b). 19 * Sec. 9. AS 39.52.240(a) is amended to read: 20 (a) Upon the written request of a designated supervisor or a board or 21 commission, the attorney general shall issue opinions interpreting this chapter. The 22 requester must supply any additional information requested by the attorney general in 23 order to issue the opinion. Within 60 days after receiving a complete request, the 24 attorney general shall issue an advisory opinion on the question. This section does not 25 apply to a report or an allegation investigated under AS 39.52.230(b). 26 * Sec. 10. AS 39.52.310(a) is amended to read: 27 (a) The attorney general may initiate a complaint, or elect to treat as a 28 complaint, any matter disclosed under AS 39.52.210, 39.52.220, 39.52.230(a), 29 39.52.250, or 39.52.260. The attorney general may not, during a campaign period, 30 initiate a complaint concerning the conduct of the governor or lieutenant governor 31 who is a candidate for election to state office.
01 * Sec. 11. AS 39.52.335(c) is amended to read: 02 (c) If a complaint is dismissed under AS 39.52.320 or resolved under 03 AS 39.52.330, the attorney general shall promptly prepare a summary of the matter 04 and provide a copy of the summary to the personnel board, the subject of the 05 complaint, and the complainant. The summary is confidential unless the 06 [(1)] dismissal or resolution agreed to under AS 39.52.320 or 07 39.52.330 is public [; OR 08 (2) SUPERIOR COURT MAKES THE MATTER PUBLIC UNDER 09 (h) OF THIS SECTION]. 10 * Sec. 12. AS 39.52.335(f) is amended to read: 11 (f) After review of the summary, the personnel board may issue a report on the 12 disposition of the complaint to the attorney general, the subject of the complaint, 13 and the complainant. The report is confidential [. IF THE MATTER IS 14 CONFIDENTIAL AND THE BOARD DETERMINES THAT PUBLICATION OF 15 THE NAME OF THE SUBJECT IS IN THE PUBLIC INTEREST, THE REPORT 16 MAY INCLUDE A RECOMMENDATION THAT THE MATTER BE MADE 17 PUBLIC]. 18 * Sec. 13. AS 39.52.340(a) is amended to read: 19 (a) Except as provided in AS 39.52.335, before the initiation of formal 20 proceedings under AS 39.52.350, the complaint and all other documents and 21 information regarding an investigation conducted under this chapter or obtained by the 22 attorney general or independent counsel during the investigation are confidential and 23 not subject to inspection by the public. In the case of a complaint concerning the 24 governor, lieutenant governor, or attorney general, all meetings of the personnel board 25 concerning the complaint and investigation before the determination of probable cause 26 are closed to the public. If, in the course of an investigation or probable cause 27 determination, the attorney general finds evidence of probable criminal activity, the 28 attorney general shall transmit a statement and factual findings limited to that activity 29 to the appropriate law enforcement agency. If the attorney general finds evidence of a 30 probable violation of AS 15.13, the attorney general shall transmit a statement to that 31 effect and factual findings limited to the probable violation to the Alaska Public
01 Offices Commission. The attorney general, complainant, subject of the complaint, 02 and all persons contacted during the course of an investigation shall maintain 03 confidentiality regarding the existence of the investigation or proceeding. In a 04 proceeding conducted or an action taken under this chapter, 05 (1) a person may not disclose the filing of a complaint, its contents, 06 or related matters until after the personnel board makes a finding of probable 07 cause or unless the disclosure is made while the person is 08 (A) communicating with personnel board members or staff; 09 (B) seeking advice from an attorney; or 10 (C) lawfully representing the person or the person's client 11 in defense of a complaint that has been filed and the disclosure is 12 necessary; 13 (2) personnel board proceedings related to a complaint that has 14 been filed are closed to all persons except board members and staff until after the 15 board makes a finding of probable cause unless 16 (A) the board permits otherwise after finding that fairness 17 to the subject of the complaint may be advanced by the permission; or 18 (B) the subject of the complaint waives confidentiality; 19 (3) the complaint document and each related record are 20 confidential and are not available for public inspection unless 21 (A) the personnel board makes a finding of probable cause; 22 or 23 (B) the subject of the complaint waives confidentiality; 24 (4) under this section, if the subject of a complaint waives 25 confidentiality of a proceeding or a document, the entire proceeding is open to 26 the public, and the entire document is available for public inspection; 27 (5) the personnel board shall make appropriate efforts to provide 28 notice of the confidentiality requirements of this section; 29 (6) this section governs confidentiality only for complaints filed 30 under this chapter and does not alter confidentiality or the rights of any person 31 for matters not connected with this chapter;
01 (7) this subsection does not prevent a person from obtaining 02 directly from a state agency a public record of that agency that has also been 03 made available in connection with an investigation or a formal proceeding under 04 AS 39.52.310 - 39.52.390. 05 * Sec. 14. AS 39.52 is amended by adding a new section to read: 06 Sec. 39.52.352. Wrongful use of complaint. (a) The board may find there has 07 been wrongful use of an executive branch ethics complaint if it determines, after 08 compliance with due process requirements, including a public hearing, if requested, 09 and a majority vote, that the complainant 10 (1) made a factual allegation in the complaint knowing the allegation 11 to be false or with reckless disregard of the truth or falsity of the allegation; or 12 (2) did not reasonably believe that the facts alleged in the complaint, if 13 proven, would constitute a violation of this chapter. 14 (b) The board may not find wrongful use of an executive branch ethics 15 complaint under (a)(2) of this section if the complainant filed the complaint in reliance 16 on advice from the complainant's attorney, a member or staff of the board, or an 17 employee of the state acting in an official capacity. 18 (c) If, under (a) of this section, the board makes a finding of wrongful use of 19 an executive branch ethics complaint, the board shall notify both the complainant and 20 the subject of the complaint of its final determination under (a) of this section. The 21 board 22 (1) shall provide to the subject of the complaint the name and last 23 known mailing address of the complainant; and 24 (2) may recommend sanctions under AS 39.52.410 - 39.52.440. 25 * Sec. 15. AS 39.52.380(a) is amended to read: 26 (a) As provided in AS 39.52.230(b), 39.52.310(g) [AS 39.52.310(g)], 27 39.52.360(b), and 39.52.370(b), the attorney general, independent counsel retained 28 under AS 39.52.230(b) or 39.52.310(c) [AS 39.52.310(c)], a hearing officer, the 29 subject of an accusation, and the personnel board may summon witnesses and require 30 the production of records, books, and papers by the issuance of subpoenas. 31 * Sec. 16. AS 39.52.410(a) is amended to read:
01 (a) If the personnel board determines that a public employee has violated this 02 chapter, it 03 (1) shall order the employee to stop engaging in any official action 04 related to the violation; 05 (2) may order divestiture, [ESTABLISHMENT OF A BLIND 06 TRUST,] restitution, or forfeiture; and 07 (3) may recommend that the employee's agency take disciplinary 08 action, including dismissal. 09 * Sec. 17. AS 39.52.960(9) is amended to read: 10 (9) "financial interest" means 11 (A) an interest held by a public officer, or an immediate family 12 member, which includes an involvement or ownership of an interest in a 13 business, including a property ownership, or a professional or private 14 relationship, that is a source of income, or from which, or as a result of which, 15 a person has received or expects to receive a financial benefit; 16 (B) holding a position in a business, such as an officer, director, 17 trustee, partner, employee, or the like, or holding a position of management; or 18 (C) an interest held by a public officer with a business 19 associate; 20 * Sec. 18. AS 39.52.960(11) is amended to read: 21 (11) "immediate family member" means 22 (A) the spouse of the person; 23 (B) another person living in the same household 24 [COHABITING] with the person in a sexual [CONJUGAL] relationship that is 25 not a legal marriage; 26 (C) a child, including a stepchild and an adoptive child, of the 27 person; 28 (D) a parent or [,] sibling [, GRANDPARENT, AUNT, OR 29 UNCLE] of the person; [AND] 30 (E) a child, parent, or sibling of the person's spouse; and 31 (F) a child, parent, or sibling of another person living in the
01 same household with the person in a sexual relationship that is not a legal 02 marriage; 03 * Sec. 19. AS 39.52.960 is amended by adding new paragraphs to read: 04 (23) "business associate" means any person with whom a public officer 05 jointly shares the management, control, or majority ownership of a business for the 06 conduct of trade, commerce, the practice of a profession, or any other occupation 07 engaged in for the purpose of providing income or potential income to the public 08 officer, regardless of how the business is organized; 09 (24) "household" means a social unit of those persons living together 10 in the same dwelling. 11 * Sec. 20. AS 39.52.335(h) is repealed. 12 * Sec. 21. This Act takes effect January 1, 2006.