txt

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.