Legislature(2005 - 2006)BUTROVICH 205
05/01/2005 04:00 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB125 | |
| SB127 | |
| SB186 | |
| SB187 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 125 | TELECONFERENCED | |
| += | SB 127 | TELECONFERENCED | |
| += | SB 186 | TELECONFERENCED | |
| += | SB 187 | TELECONFERENCED | |
| += | HB 33 | TELECONFERENCED | |
| += | HB 81 | TELECONFERENCED | |
| += | HB 149 | TELECONFERENCED | |
| += | HB 183 | TELECONFERENCED | |
| += | HB 184 | TELECONFERENCED | |
| += | HB 210 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
May 1, 2005
4:41 p.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Charlie Huggins, Vice Chair
Senator Gene Therriault
Senator Hollis French
Senator Gretchen Guess
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 125
"An Act relating to the licensing, regulation, enforcement, and
appeal rights of ambulatory surgical centers, assisted living
homes, child care facilities, child placement agencies, foster
homes, free-standing birth centers, home health agencies,
hospices or agencies providing hospice services, hospitals,
intermediate care facilities for the mentally retarded,
maternity homes, nursing facilities, residential child care
facilities, residential psychiatric treatment centers, and rural
health clinics; relating to criminal history requirements, and a
registry, regarding certain licenses, certifications, approvals,
and authorizations by the Department of Health and Social
Services; making conforming amendments; and providing for an
effective date."
MOVED CSSB 125(JUD) OUT OF COMMITTEE
SENATE BILL NO. 127
"An Act prohibiting a public officer from taking official action
regarding a matter in which the public officer has a significant
financial interest; and defining 'official action' for purposes
of the chapter generally referred to as the Executive Branch
Ethics Act."
HEARD AND HELD
SENATE BILL NO. 186
"An Act relating to the Alaska Executive Branch Ethics Act."
MOVED CSSB 186(JUD) OUT OF COMMITTEE
SENATE BILL NO. 187
"An Act relating to legislative ethics open meetings guidelines,
to the public members of the Select Committee on Legislative
Ethics, to alternate members of the legislative subcommittees,
to advisory opinions, and to confidential information and
proceedings regarding legislative ethics complaints and
investigations."
HEARD AND HELD
CS FOR HOUSE BILL NO. 33(FIN)
"An Act relating to required notification of the Department of
Commerce, Community, and Economic Development, economic effect
statements, and regulatory flexibility analyses regarding the
adoption of regulations that may govern the conduct of small
businesses; relating to a private cause of action, regulation
invalidation, and judicial review related to required
notification, economic effect statements, and regulatory
flexibility analyses for the adoption of regulations that may
govern the conduct of small businesses; and providing for an
effective date."
SCHEDULED BUT NOT HEARD
CS FOR HOUSE BILL NO. 81(L&C)
"An Act establishing an administrative fine and procedure for
construction contractors in certain circumstances; increasing
the amount of a civil penalty for persons acting in the capacity
of contractors or home inspectors; modifying the elements of a
crime involving contractor registration and residential
contractors; modifying the exemptions from regulation under AS
08.18 for contractors; and exempting the administrative hearings
for imposing an administrative fine on construction contractors
from the hearings conducted by the office of administrative
hearings in the Department of Administration."
SCHEDULED BUT NOT HEARD
CS FOR HOUSE BILL NO. 149(FIN) am
"An Act relating to controlled substances; relating to the
crimes of manslaughter, endangering the welfare of a child, and
misconduct involving a controlled substance; relating to the
manufacture of methamphetamine and to the sale, possession, and
delivery of certain substances and precursors used in the
manufacture of methamphetamine; relating to listing certain
anabolic steroids as controlled substances; and providing for an
effective date."
SCHEDULED BUT NOT HEARD
CS FOR HOUSE BILL NO. 183(JUD) am
"An Act relating to the use of campaign contributions for shared
campaign activity expenses and to reimbursement of those
expenses; and amending the definition of 'contribution' in
regard to sharing fundraising lists between candidates and
political parties without compensation."
SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 184 am
"An Act relating to firearms."
SCHEDULED BUT NOT HEARD
CS FOR HOUSE BILL NO. 210(JUD)
"An Act relating to blood testing of certain persons alleged to
have committed certain offenses directed toward peace officers
or emergency workers."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 125
SHORT TITLE: LICENSING MEDICAL OR CARE FACILITIES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/02/05 (S) READ THE FIRST TIME - REFERRALS
03/02/05 (S) HES, JUD, FIN
03/14/05 (S) HES AT 1:30 PM BUTROVICH 205
03/14/05 (S) Heard & Held
03/14/05 (S) MINUTE(HES)
04/06/05 (S) HES AT 1:30 PM BUTROVICH 205
04/06/05 (S) Heard & Held
04/06/05 (S) MINUTE(HES)
04/13/05 (S) HES AT 2:00 PM BUTROVICH 205
04/13/05 (S) Moved CSSB 125(HES) Out of Committee
04/13/05 (S) MINUTE(HES)
04/14/05 (S) HES RPT CS 3DP 2NR NEW TITLE
04/14/05 (S) DP: DYSON, WILKEN, GREEN
04/14/05 (S) NR: ELTON, OLSON
04/20/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/20/05 (S) Heard & Held
04/20/05 (S) MINUTE(JUD)
04/23/05 (S) JUD AT 4:00 PM BUTROVICH 205
04/23/05 (S) -- Rescheduled from 04/22/05 --
04/30/05 (S) JUD AT 9:00 AM BUTROVICH 205
04/30/05 (S) Scheduled But Not Heard
05/01/05 (S) JUD AT 4:00 PM BUTROVICH 205
BILL: SB 127
SHORT TITLE: EXEC. BRANCH ETHICS: FINANCIAL INTERESTS
SPONSOR(s): SENATOR(s) FRENCH
03/03/05 (S) READ THE FIRST TIME - REFERRALS
03/03/05 (S) STA, JUD
04/26/05 (S) STA AT 3:30 PM BELTZ 211
04/26/05 (S) Moved SB 127 Out of Committee
04/26/05 (S) MINUTE(STA)
04/27/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/27/05 (S) Scheduled But Not Heard
04/28/05 (S) STA RPT 1DP 3NR
04/28/05 (S) NR: THERRIAULT, HUGGINS, WAGONER
04/28/05 (S) DP: ELTON
04/28/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/28/05 (S) Scheduled But Not Heard
04/29/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/29/05 (S) EXECUTIVE BRANCH ETHICS
04/30/05 (S) JUD AT 9:00 AM BUTROVICH 205
04/30/05 (S) Scheduled But Not Heard
05/01/05 (S) JUD AT 4:00 PM BUTROVICH 205
BILL: SB 186
SHORT TITLE: EXECUTIVE BRANCH ETHICS
SPONSOR(s): SENATOR(s) SEEKINS
04/22/05 (S) READ THE FIRST TIME - REFERRALS
04/22/05 (S) STA, JUD
04/26/05 (S) STA AT 3:30 PM BELTZ 211
04/26/05 (S) Moved CSSB 186(STA) Out of Committee
04/26/05 (S) MINUTE(STA)
04/27/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/27/05 (S) Scheduled But Not Heard
04/28/05 (S) STA RPT CS 1DNP 3NR NEW TITLE
04/28/05 (S) NR: THERRIAULT, WAGONER, HUGGINS
04/28/05 (S) DNP: ELTON
04/28/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/28/05 (S) Scheduled But Not Heard
04/29/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/29/05 (S) LEGISLATIVE ETHICS/MEETINGS
04/30/05 (S) JUD AT 9:00 AM BUTROVICH 205
04/30/05 (S) Scheduled But Not Heard
05/01/05 (S) JUD AT 4:00 PM BUTROVICH 205
BILL: SB 187
SHORT TITLE: LEGISLATIVE ETHICS/MEETINGS
SPONSOR(s): SENATOR(s) SEEKINS
04/22/05 (S) READ THE FIRST TIME - REFERRALS
04/22/05 (S) STA, JUD
04/26/05 (S) STA AT 3:30 PM BELTZ 211
04/26/05 (S) Moved CSSB 187(STA) Out of Committee
04/26/05 (S) MINUTE(STA)
04/27/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/27/05 (S) Scheduled But Not Heard
04/28/05 (S) STA RPT CS 1DNP 2NR 1AM SAME TITLE
04/28/05 (S) AM: THERRIAULT
04/28/05 (S) DNP: ELTON
04/28/05 (S) NR: WAGONER, HUGGINS
04/28/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/28/05 (S) Scheduled But Not Heard
04/29/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/30/05 (S) JUD AT 9:00 AM BUTROVICH 205
04/30/05 (S) Scheduled But Not Heard
05/01/05 (S) JUD AT 4:00 PM BUTROVICH 205
WITNESS REGISTER
Ms. Virginia Stonkas
Division of Public Health
Department of Health & Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Commented on SB 125
Ms. Stacie Kraly, Senior Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 125
Mr. Merle Thompson
Susitna Valley, Alaska
POSITION STATEMENT: Testified in opposition to SB 186
ACTION NARRATIVE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 4:41:08 PM. Present were Senators
Gretchen Guess, Hollis French, Gene Therriault, Charlie Huggins,
and Chair Ralph Seekins.
SB 125-LICENSING MEDICAL OR CARE FACILITIES
4:41:08 PM
CHAIR RALPH SEEKINS announced SB 125 to be up for consideration.
SENATOR CHARLIE HUGGINS moved Version \I as the working
document.
CHAIR SEEKINS objected for the purpose of discussion.
4:42:10 PM
MS. VIRGINIA STONKAS, Division of Public Health (DPH),
Department of Health and Social Services (DHSS), advised Version
\I added a couple of amendments that were adopted. Section 6 was
added through a recommendation by the Legislative Legal Affairs
Agency. The new language was added to comply with SB 125
licensing entities in lieu of individuals. The second amendment
is on Page 23, line 13. The concern was for a definition of
entities in regulation. The third amendment is on Page 25, lines
14-16. Existing language was cut and pasted into the bill for
clarification that when licensing an entity they will not be
negatively affected in their ability to do business. The fourth
amendment is to ensure compliance with AS 47.33. Amendment 5 is
on Page 38, line 28 to ensure assisted living is clearly
referenced in terms of long-term care and nursing homes and
assisted living.
4:45:59 PM
CHAIR SEEKINS removed his objection. The committee would work
with Version \I for the purpose of this meeting.
SENATOR GENE THERRIAULT asked Ms. Stonkas whether there were
still concerns about assisted living homes with certain
provisions in SB 125.
MS. STONKAS responded no. Concerns in the past related to
costing rather than structure.
CHAIR SEEKINS understood the structural side had been addressed
yet the fee schedule is a different matter that is not addressed
in the bill.
MS. STONKAS added they were never meant to be part of SB 125.
Legislative Legal Affairs submitted another set of amendments to
consider.
4:49:26 PM
CHAIR SEEKINS moved Amendment 1. He also objected for the
purpose of discussion.
Amendment to CSSB 125 (JUD) (version I)
Page 4, line 15 through page 5, line 28:
Delete all material.
Renumber bill sections accordingly.
Page 8, line 15 through page 9, line 30:
Delete all material.
Renumber bill sections accordingly.
Page 13, line 31, following "jurisdiction":
Insert "or to have committed medical assistance fraud under
AS 47.05.210 or a substantially similar provision in another
jurisdiction"
Page 15, line 23, following "jurisdiction":
Insert "or to have committed medical assistance fraud under
AS 47.05.210 or a substantially similar provision in another
jurisdiction"
Page 17, following line 26:
Insert "Sec. 47.05.350. Immunity. An entity or individual
service provider that obtains information about an employee
under a criminal history check under AS 47.05.310 may use that
information only as provided in regulations adopted by the
department under AS 47.05.320. However, if that entity or
individual service provider reasonably relies on that
information in denying employment for an individual selected for
hire as an employee, including during a period of provisional
employment, the entity or individual service provider is not
liable in an action brought by the individual based on the
employment determination resulting form the information."
Page 33, line 20:
Delete "applies"
Insert "and AS 44.62.330 - 44.62.630 apply"
Page 34, lines 9 - 15:
Delete all material.
Page 39, line 22, following "to", through line 30:
Delete all material and insert "assisted living homes as
defined in AS 47.32.900."
Page 42, following line 9:
Insert a new bill section to read:
"*Sec. 44. AS 14.43.148(h)(1)(B)(iii) is repealed."
Renumber the following bill sections accordingly.
Page 42, following line 16:
Insert a new bill section to read:
"* Sec. 47. AS 25.27.244(s)(2) is repealed."
Page 43, line 16:
Delete "36"
Insert "37"
Page 43, line 17:
Delete "36"
Insert "37"
Page 43, line 19
Delete "36"
Insert "37"
Page 43, line 26:
Delete "36"
Insert "37"
Page 43, line 31:
Delete "36"
Insert "37"
MS. STONKAS advised the revisions had to do with technicalities
and consistency throughout the bill. She asked that Stacy Kraly
explain the changes.
MS. STACEY KRALY, senior assistant attorney general, Department
of Law (DOL), explained the revisions are in response to a
lengthy bill with a lot of conforming amendments. The first
revision deletes Section 6.
4:52:07 PM
The second revision is a conforming edit with respect to the
change on Page 9.
SENATOR FRENCH:
Ms. Kraly, both of the revisions have the affect of
taking out the change to a license issued to a
childcare facility. Is that going to be relocated or
what is happening to both of those changes?
MS. KRALY said the revision goes back to her misunderstanding.
This particular statute deals with individual property rights
and the DOL is no longer licensing individuals they are
licensing entities. They won't be re codified or moved somewhere
else they will be repealed in total.
4:53:50 PM
The third and fourth revisions are to include Medicaid fraud as
an inclusion on the abuse registry. If somebody is prosecuted
for Medicaid fraud the DOL wants that to be part of the criminal
background check.
SENATOR FRENCH:
Ms. Kraly on Page 13 what I have in front of me now
reads, "the department may not issue or renew a
license or certification for an entity if an
individual is applying for a license, license renewal,
certification, or certification renewal for the entity
and that individual has been found by a court or
agency of this or another jurisdiction to have
neglected, abused, or exploited a child or vulnerable
adult under AS 47.10, AS 47.24, or AS 47.62 or a
substantially similar provision in another
jurisdiction." Is it the entity may not have someone
make this application, the person can't make the
application, and the person can't be part of a group
that... It's just not clear to me how this works.
MS. KRALY explained it would be further developed through a
regulatory process similar for what is done for an assisted
living home. The premise is that the entity would be the
licensed structure. With respect to the hiring decisions, the
entity would submit a name for a background check for an
individual to see whether they were barred from employment under
a mandatory barrier crime list.
SENATOR FRENCH said it sounds like the entity can't have anyone
with a criminal history working for the entity or applying for a
license for the entity.
CHAIR SEEKINS said it looks like the individual in question can
not own an entity or be an officer, director, partner, member or
principal of a business or organization that owns an entity if
any of the things were there.
SENATOR FRENCH restated it was unclear as to how it operates
with the licensing statute.
4:56:37 PM
MS. KRALY said it is very similar to what is being done with the
assisted living statute and the foster care statute:
If you have somebody working with you or residing in
your home who has regular contact with an individual,
they must submit to a criminal background check and
that criminal background check will show... if it
shows a conviction for a certain listed crime then
that person cannot be employed or have any sort of
function within the entity. There is another rigorous
list called "permissive barrier crimes" where there
would be the potential that if you were 20 years old
and got into a bar fight in college and you are now 35
and have not had any trouble since that time, you
would still be able to become a part in a licensed
entity. The basic structure of what we envisioned is
the nuts and bolts of this will be dealt with through
the regulations, which is currently how we do things
for the assisted living homes and it seems to work
pretty well.
4:58:17 PM
SENATOR FRENCH said it seems clumsily drafted but the idea
behind it seems sound.
MS. KRALY continued Page 17 following line 26 (immunity clause)
was created to remove the immunity provision from the criminal
background check.
5:00:12 PM
SENATOR GUESS asked Ms. Kraly to explain the term "reasonably
relies."
MS. KRALY responded "reasonably relies" means when an employee
presents a fingerprint card for a background check and it is run
through the state process the employer reviews the information
and makes a decision. If they decide not to employ somebody,
then the individual cannot file suit against the prospective
employer.
SENATOR GUESS asked if something shows up on the background
check that wouldn't exclude the applicant, does the employer
have a right to not employ the person.
MS. KRALY said the decision would be left up to the employer.
The immunity attaches only to the case if an applicant's
background check flags a barrier crime.
5:03:08 PM
SENATOR GUESS asked whether there would be anything come up in a
criminal background check that would not be a reason under
statute for them to hire the person. She is worried this allows
open immunity. The employer could use information they wouldn't
normally have to not hire the person.
MS. KRALY said the distinction is a low level misdemeanor
wouldn't be listed as a permissive crime. If the decision not to
employ was based upon something that was not listed through the
regulatory process, the employer couldn't use that as a basis
for preventing employment.
5:04:59 PM
CHAIR SEEKINS asked Ms. Kraly whether the employer would be able
to see everything on the criminal history check.
MS. KRALY admitted the employer would see everything on the
background check.
CHAIR SEEKINS asked whether a criminal history background check
was public information.
MS. KRALY said not as readily as this process would envision but
yes, it is public information.
CHAIR SEEKINS said this would be putting the onus on the
employer to do a reasonably available background check. If that
employer wanted to preclude someone from being hired they could
already do that.
5:06:54 PM
SENATOR GUESS expressed concern with the immunity. She said this
would give the employer the ability to look at someone's entire
background and deny him or her employment while being immune
from a lawsuit. She said the immunity clause seems to provide
immunity regardless of the reason the employer decides not to
hire.
5:08:56 PM
CHAIR SEEKINS disagreed. He read it as the employer may use the
information only as provided in regulations adopted by the
department.
MS. KRALY agreed. There are sufficient sideboards in the bill to
ensure the immunity that is being provided addresses only the
use of the information from the criminal background check.
SENATOR FRENCH said it appears to be two different
interpretations happening. If the second sentence said, "however
if the individual or service provider reasonably relies on that
information only in the manner provided in regulations adopted
by the department and denies employment for an individual
selected for hire as an employee, the entity is not liable for
any action." What Senator Guess is saying is that someone could
misread that information and mistake a charge for a conviction
or they could decide that a 15-year-old DWI is a barrier crime.
This is all based on somebody's interpretation of someone else's
criminal history.
5:12:44 PM
CHAIR SEEKINS said an employer always has to determine whether
or not the person is of good character. He said an employer
should be held harmless for making a decision based on a
background check. He said he has no objection to a conceptual
amendment to clarify the employer can only use the information
in the manner prescribed by the regulations. He asked Ms. Kraly
whether she objected to the proposed conceptual amendment.
MS. KRALY said no.
CHAIR SEEKINS announced the conceptual amendment was adapted to
Amendment 1.
Ms. Kraly continued explaining the revisions. Last week the
committee wanted to make sure that "assisted living" was defined
and so that was added and it is consistent throughout the
statutes.
5:15:57 PM
After deleting Section 6 there required an inclusion of a
repealer on Page 42. The change on Page 42, line 16 is to make
sure the corresponding section in the back was repealed. The
remaining revisions would be numbering issues.
CHAIR SEEKINS removed his objection and hearing no others,
Amendment 1 was adopted.
SENATOR HUGGINS moved CSSB 125(JUD) from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
Chair Seekins announced a brief recess at 5:17:37 PM.
SB 127-EXEC. BRANCH ETHICS: FINANCIAL INTERESTS
5:18:47 PM
CHAIR RALPH SEEKINS announced SB 127 to be up for consideration.
He asked Senator French to describe the approach he took to
define unethical conduct with regard to the potential violation
of AS 39.52.110(b) of the current statute. He asked him to
compare SB 127 with SB 186.
SENATOR HOLLIS FRENCH said both bills tend to clear up a
loophole that the former Attorney General Renkes case brought to
light. SB 186 takes out the word "substantial" and says there is
no impropriety. Both bills say there is no impropriety if the
action or influence would have an insignificant effect.
5:21:26 PM
SB 127 takes the question of interests that are insignificant or
possessed by the public or large class of persons. SB 186 leaves
it alone in Section 1. Two of the sections are very similar and
of the two approaches SB 186 is right because it includes
financial interest. If a person has stock in a company that is
going to build a gas pipeline and also owned a home in Fairbanks
and that person voted to build the pipeline, the value of every
house in Fairbanks would go up and that would be okay. But the
value of the person's stock would also go up and it's important
to differentiate the two. The person could be charged with two
violations but would be acquitted on the first charge because
everyone has that same interest.
5:25:29 PM
SENATOR FRENCH said he has difficulty interpreting how Section
2, Paragraph 4 of SB 186 would work. He asked Chair Seekins to
explain.
CHAIR SEEKINS said determining the value of a stock of a company
by percentage is difficult. Zero percent of nothing is still
nothing. Most people can determine how many dollars something
is. If a public officer owns 50 percent of a stock and the value
is less than $10,000 than it is no impropriety.
SENATOR FRENCH said if the public officer owns one-half of one
percent of a high value stock it could be worth ten million
dollars. That would be impropriety.
CHAIR SEEKINS added that would be an equity interest in the
business worth less than $10,000. SB 186 is attempting to
establish equity value in dollars.
SENATOR FRENCH asked whether a person would have to meet all the
requirements of Section 2, Paragraph 4 subparagraphs (A)-(H) in
order to be exempt from liability.
CHAIR SEEKINS said yes. He said unless a person "jumps through
all the hoops", s/he must do something about it.
5:27:43 PM
SENATOR FRENCH voiced agreement with the section. He said SB 186
looks to be better drafted than SB 127.
CHAIR SEEKINS voiced the difference between SB 127 and SB 186
was in the dollar value.
SENATOR FRENCH agreed.
It sounds like the only place that would have an
application is not in a stock, it's as if you owned a
slice of Joe's Tire Company in Fairbanks and you
think, with the gas line coming you're going to sell a
bunch of tires. And if you own a little tiny slice
it's not a factor but if you own a big slice it might
get to be one.
5:29:38 PM
CHAIR SEEKINS said that's true.
But what is a slice? It could be a conceptual company.
We have to have some real things to look at. That's
the hard part of trying to set up a bright line. When
we shine the light on it there should be more than a
hallucination. It has to be something real to take a
look at. And that's what I'm trying to boil it down to
is something that has three dimensions. The hard part
in trying to set this is where to put it and how to
define it.
SENATOR FRENCH said it is a good and thorough series of hoops.
Chair Seekins announced a recess at 5:30:51 PM.
Chair Seekins reconvened the meeting at 6:43:03 PM.
CHAIR SEEKINS advised before the break the committee was
discussing the similarities and differences between SB 127 and
SB 186.
6:43:27 PM
SENATOR FRENCH noted another difference is on Page 2, lines 3
and 4. SB 186 has an exception for those interests held in a
blind trust and interests where the public officer does not have
management control over the financial interests.
CHAIR SEEKINS stated in order to set up a blind trust a person
would have to have assets in excess of $1,000,000. There could
be a potential conflict of interest but it would not necessarily
have to preclude the public officer from making decisions if
they did not have their hands on the investment. In the case of
a public officer advising their superior of a conflict of
interest there may be a way to arrange their financial interests
so that the public officer could continue working on the
particular project for the state. He said SB 186 attempts to
find a balance for the public officer to continue making
decisions for the State of Alaska. He asked Barbara Richey to
explain how it is done currently.
6:46:26 PM
MS. BARBARA RICHEY, chief assistant attorney general, Department
of Law (DOL), introduced herself as the head of a section called
Opinions, Appeals, and Ethics.
CHAIR SEEKINS asked the course when a person discloses a
potential violation of ethics or conflict of interest.
MS. RICHEY said often the inquiries come via the designated
ethics supervisors. Ethics are very fact specific so they gather
all of the facts first. They research the situation both
factually and legally and do an advisory opinion.
CHAIR SEEKINS said Section 17 of SB 186 states even the
personnel board may order the same type of divestiture or
establishment as part of their remedy. He said a person could go
to their designated ethics supervisor and the supervisor at that
time could advise them on how to avoid the conflict.
MS. RICHEY noted a good example was Attorney General David
Marquez, when he was being considered for possible appointment
as attorney general, made disclosure of all of his personal
financial interests and asked for a review and an opinion.
6:50:18 PM
SENATOR FRENCH said management control was a rational approach
so long as the asset in question wasn't one that the public
officer put in to the account.
CHAIR SEEKINS asserted once that person puts it into a brokerage
fund it becomes managed by someone else.
6:52:51 PM
SENATOR THERRIAULT said he doesn't believe people should have to
divest themselves of their holdings, especially if they have
owned them long term.
SENATOR FRENCH stated the issue is not whether they own it or
not, the issue is whether they use their public office to
influence the investment.
6:54:44 PM
CHAIR SEEKINS speculated a public officer would be compelled
under the law to seek the advice of their designated supervisor.
MS. RICHEY agreed.
CHAIR SEEKINS continued the designated supervisor has the right
to tell the public officer what to do with their holdings and
that person either accepts the recommendation or doesn't perform
the job.
MS. RICHEY said correct or they could be reassigned. The concept
is to lie out options because situations differ.
6:56:48 PM
MS. RICHEY commented discretionary managed accounts occur where
the broker makes investments without prior knowledge. However,
the investor receives monthly reports and can check accounts via
the Internet.
CHAIR SEEKINS asked whether the process of an ethics advisor is
discoverable.
MS. RICHEY answered notices of potential violation and requests
for advice is currently confidential.
CHAIR SEEKINS asked whether it could be discoverable if a case
was brought.
MS. RICHEY responded it would depend on whether the subject was
willing to waive confidentiality.
CHAIR SEEKINS clarified there would be a traceable history if
charges were brought.
MS. RICHEY agreed.
6:59:52 PM
CHAIR SEEKINS advised Senator French that SB 186 has hurdles but
the bill also requires the subject to get advice.
SENATOR HUGGINS commented the contents of the bill appear
reasonable.
MS. RICHEY added another part of the process is that any
notices, declaration of potential violation, as well as any
actual violations, the designated ethics supervisors on a
quarterly basis report all of those to the attorney general's
office. They are all reviewed and if something is questionable
it is followed up on. There is also a report to the personnel
board, which is made public.
7:02:38 PM
CHAIR SEEKINS asked the number of public employees that fall
under the rule.
MS. RICHEY stated all of them including members of boards or
commissions that are formed by statute.
SENATOR FRENCH explained the last difference between SB 127 and
SB 186 is the definition of official action.
CHAIR SEEKINS asked Senator French to explain how that would be
in effect.
SENATOR FRENCH said the impetus for the re-definition came out
of the (former Attorney General) Renkes affair. He said he wants
to make sure employees know most of the things they do during
the course of the day is official action.
MS. RICHEY commented the current definition of "official action"
is very broad. Senator French's proposal is more articulate.
7:06:26 PM
MS. RICHEY said overall she was comfortable with the current
definition of official action.
SENATOR FRENCH asserted (former Attorney General) Renkes felt
some things he did was not "official action" and so the current
definition seems open to confusion.
CHAIR SEEKINS said he does not have a problem with the effort to
re-define things so that people are clearly informed of the
parameters. A lot of potential ethics violations can result from
someone not having a clear understanding of the parameters.
7:10:27 PM
SENATOR FRENCH concluded the comparison of the two bills.
CHAIR SEEKINS said his intent is to reach an agreement between
the two bills and move one forward.
SB 186-EXECUTIVE BRANCH ETHICS
For the purpose of research, it is important to review minutes
st
and recordings of SB 127 one May 1, 2005 where the two bills
were distinctly compared.
CHAIR RALPH SEEKINS announced his intent to merge SB 127 into SB
186. He asked Ms. Barbara Richey whether she had concerns with
SB 186.
MS. BARBARA RICHEY, chief assistant attorney general, Department
of Law (DOL), said SB 186 does a good job of indicating what
constitutes a significant personal or financial interest in a
matter. The changes in confidentiality work well.
CHAIR SEEKINS moved Version \I as the working document. Hearing
no objections, the motion carried.
7:13:29 PM
MS. RICHEY continued SB 186 does not dramatically change current
law on confidentiality of executive branch ethics matters. It
sets up a mechanism for the steps in the event of an allegation
of ethics violation in regards to the governor, the lieutenant
governor, and the attorney general. She said it was an
improvement to the current ethics law.
7:15:02 PM
CHAIR SEEKINS asked Ms. Richey how long she has worked with the
current law.
MS. RICHEY informed she has headed up her section for two years
and has worked in ethics matters prior to that.
CHAIR SEEKINS asked Ms. Richey to explain her concern with the
effective date.
MS. RICHEY said she would like to have an opportunity to do some
training on the changes because they are significant. She would
like people to have a chance to review their financial holdings.
There may also need to be some regulatory changes as well.
7:16:37 PM
MS. RICHEY added the law from 1986 until 1998 identified
violation of the confidentiality provisions of the Ethics Act as
a class A misdemeanor. Legislators in 1998 felt it was too harsh
a penalty and so they took it out.
CHAIR SEEKINS advised he was going to advance a conceptual
amendment. On Page 1, line 8; reduce the penalty for disclosure
of ethics violation to a $5,000 fine. He would leave it to the
drafters to determine whether that would be a new section of the
bill. He asked Ms. Richey to read the statute regarding the
penalty that the personnel board may impose on current or former
public officers.
7:18:41 PM
MS. RICHEY said the Ethics Act itself is not a criminal statute.
The civil penalty that may be imposed is not to exceed $5,000.
CHAIR SEEKINS stated that would include confidentiality
sections.
MS. RICHEY looked at Oregon law and said they have a civil
penalty for violation of confidentiality provisions. It reads,
"any person aggrieved as a result of violation of this paragraph
by a member of the ethics commission or it's staff may file a
petition in court in the judicial district where the petitioner
resides in order to enforce a civil penalty provided in this
section."
7:20:53 PM
CHAIR SEEKINS speculated the intent was the aggrieved person
could now bring into the process a person who was not a member
of the personnel board or the attorney general's office.
SENATOR FRENCH said his analysis is that in Oregon a person
could sue a member of our equivalent of the personnel board if
one of those members leaks to the press.
MS. RICHEY agreed.
7:22:55 PM
SENATOR THERRIAULT asked the process previous to 1998.
MS. RICHEY advised the Ethics Act was enacted in 1986 and the
misdemeanor provision was in the bill since the beginning.
7:24:06 PM
CHAIR SEEKINS reiterated his intent was to allow the appropriate
public entity to impose up to $5,000 penalty.
7:25:58 PM
SENATOR FRENCH assumed the enforcement mechanism would lie in
the attorney general's office.
CHAIR SEEKINS said yes.
MS. RICHEY agreed. Under current law the personnel board could
impose a penalty for violation of the chapter and the chapter is
the entire Ethics Act. It may be possible to give the personnel
board jurisdiction if the complainant is not a public officer.
CHAIR SEEKINS conceptually proposed to ask the drafters to add a
new section to AS 39.52.440 that allows the board the authority
to impose a fine on any person who violates the confidentiality
requirements of the statute. So a person could be fined $5,000
on other violations and also $5,000 fine for violating the
confidentiality portions.
7:29:30 PM
SENATOR FRENCH disagreed. The personnel board would not have
jurisdiction over a citizen who files a complaint.
CHAIR SEEKINS said in the case of someone who is not a public
officer then authority would be given to the DOL.
SENATOR FRENCH disagreed with the fundamental approach of the
amendment. There has only been one flagrant violation of
confidentiality in recent history.
7:31:12 PM
MS. RICHEY said currently when a complaint is filed the
complainant and the subject of the complaint are always advised
the complaint is confidential under law.
CHAIR SEEKINS stated a complaint must be in writing and under
oath.
MS. RICHEY agreed.
CHAIR SEEKINS asked whether there was an actual form that is
filed.
MS. RICHEY said it was under oath.
CHAIR SEEKINS asked whether there was anything in statute that
bars the complainant from disclosing they are filing an ethics
report before they actually file the complaint.
MS. RICHEY said no. What is confidential right now is the
complaint and the investigation.
SENATOR FRENCH noted current law says the attorney general and
all persons contacted during the course of an investigation
shall maintain confidentiality regarding the existence of the
investigation. He said the law is clear the investigations are
confidential.
7:35:11 PM
CHAIR SEEKINS reiterated his earlier conceptual amendment.
Hearing no objections, Amendment 1 was adopted.
SENATOR HUGGINS asked Senator French his reservations in the
blind trust area.
SENATOR FRENCH said the concern is when a person puts an asset
into a blind trust and then later makes a decision that affects
the stock in the account. As it is now, a person has too much
access to their investments and could make decisions based on
those assets.
7:38:22 PM
CHAIR SEEKINS said he would be more nervous putting money into
an account where he had no control. At least a blind trust has
more fiduciary responsibilities on the part of the trustee.
7:43:59 PM
CHAIR SEEKINS asked for further amendments.
SENATOR FRENCH offered a conceptual amendment having to do with
the length of time the assets are in a blind trust and a set of
restrictions an officer sends along with his/her investments.
The assets would have to be in a blind trust for six months or
greater and the management control would be something similar to
what Attorney General Marquez did to put his assets out of his
control.
CHAIR SEEKINS asked if he wanted to apply that standard to all
twenty thousand state employees.
SENATOR FRENCH clarified he was trying to avoid a public officer
making decisions based on their investments and not on the
public good.
CHAIR SEEKINS said he would consider Amendment 3, which would
read, "...after consulting with the public officers designated
ethics supervisor the financial interest in a matter is held in
a blind trust where the public officer does not have management
control over the financial interest."
7:48:03 PM
MS. RICHEY advised the committee they were considering proposed
amendments to AS 39.52.110 and that is a section that provides
overall guidance to the code of ethics. She assured the
committee that section is followed properly.
Chair Seekins announced a brief recess at 7:50:48 PM.
Chair Seekins reconvened the meeting at 7:57:12 PM.
CHAIR SEEKINS advised he wants to work with Senator French to
craft a good bill. His experience with broker managers is a
person could place restrictions on what the broker can buy.
7:58:18 PM
SENATOR FRENCH said it might be easier to do by developing a set
of forms for each state department.
CHAIR SEEKINS agreed that could be done.
7:59:46 PM
MS. RICHEY noted Section 8, sub-paragraph (A), and asked the
reason for the changes.
CHAIR SEEKINS answered they directly relate to financial
investments.
MS. RICHEY argued that is true for sub-paragraph (B) but not
(A). She recommended the committee leave "personal or" in sub-
paragraph (A). There can be a situation where people are on a
board and if they resign from that board it is a personal type
interest.
8:02:06 PM
SENATOR FRENCH withdrew Amendment 2.
CHAIR SEEKINS proposed Amendment 3.
Insert "personal, or" on Page 4, beginning of line 3.
SENATOR THERRIAULT asked Chair Seekins to restate his proposed
amendment.
MS. RICHEY commented it would allow a designated ethics
supervisor to require someone to remove interests.
Amendment 3 was adopted unanimously.
8:04:04 PM
CHAIR SEEKINS commented Sections 9-13 all deal with the process
for the attorney general, the lieutenant governor and the
governor.
SENATOR FRENCH expressed concern regarding Section 10 and review
of the report of the independent counsel.
CHAIR SEEKINS interrupted to clarify Section 10 relates to the
allegation of complaint. Section 10 lays out the process prior
and is used to determine if a complaint should be filed.
SENATOR FRENCH speculated a series of newspaper articles could
make allegations of ethics violations against the governor,
which comes to the attention of the attorney general. The
attorney general would ask the personnel board to appoint an
independent counsel who would conduct an investigation. A report
would be submitted to the attorney general who would review it
to decide whether the findings indicate a violation. That
stated, he asked why insert the judgment of a political ally of
the subject instead of simply handing the completed report over
to the personnel board.
8:06:56 PM
CHAIR SEEKINS answered he would have as much confidence in the
attorney general as he would the politically appointed board.
SENATOR HUGGINS aired the fail safe mechanism is nothing
precludes a person from filing a complaint concerning the same
matter.
CHAIR SEEKINS asserted trust must be placed at the attorney
general level.
8:09:15 PM
SENATOR GUESS commented since the investigation and the
conclusion is confidential there would appear no public response
or no comment to Senator French's speculated newspaper scenario.
CHAIR SEEKINS said more than likely if an independent
investigator's report came back to show no violation, someone
would make that fact public. In order to stop a public inquiry
somebody would have to disclose the result of the investigation.
If there was found to be probable cause the matter then becomes
public because the attorney general would have to file the
complaint.
SENATOR GUESS asked at what time does a report of an allegation
become an allegation versus just someone's opinion.
8:12:26 PM
SENATOR FRENCH answered currently a person has to file a
complaint and swear to it. SB 186 doesn't detail how to get the
mechanism going. He suggested adding a probable cause standard
in the bill for a legal reference.
8:14:43 PM
CHAIR SEEKINS asked Ms. Richey her interpretation of the trigger
point for the investigation.
MS. RICHEY assessed the report part is clear and easy, where a
person reports to a supervisor under oath and in writing of a
potential violation. She said she would have to think more about
allegations and newspaper opinions because it seems to leave it
to the discretion of the attorney general or the governor who is
each other's designated ethics supervisors under the current
law. For the benefit of their own piece of mind and the people
of Alaska, they should go to the personnel board and get an
independent counsel appointed.
8:17:16 PM
CHAIR SEEKINS said his intent was to allow them that discretion.
MS. RICHEY said it happened (in former Attorney General Renkes
case) and the governor immediately investigated it.
SENATOR GUESS referred to Page 6, line 15 and noted there are
two campaign periods, one when filing for office and another
when filing APOC (Alaska Public Office Commission) papers. She
asked which campaign period was referenced.
CHAIR SEEKINS responded it would be when a person actually files
for office.
MS. RICHEY advised "campaign period" is defined in the Ethics
Act.
8:20:00 PM
SENATOR FRENCH detailed currently an interested party could
petition the superior court and the superior court could make
the matter public. He asked the reason for taking that power
away from the superior court in Section 13.
CHAIR SEEKINS said the intent is not to strike the authority of
the superior court; it's just not included in the section.
SENATOR THERRIAULT commented the drafter dropped it out but it
is still included somewhere else.
MS. RICHEY explained the superior court process. She added it
has never been used.
The entire section AS 39.52.335 was added in the 1998
amendments to the law. The concept was to have more
oversight of what the attorney general is doing
because the attorney general has a lot of power under
the Ethics Act to dismiss complaints or proceed with
complaints. This is the one that triggered the
quarterly reports and the reports to the personnel
board that we do every month on what's going on with
complaints etc. When the bill shows deleting "the
superior court makes the matter public under (h) of
this section", before the superior court could ever
get involved, you'd have to have a situation where
number one, it's a dismissal that is confidential and
number two, the personnel board, in their review,
decides for whatever reasons that the publication is
in the public interest. Then they put in their report
a recommendation that the matter be made public. That
was in AS 39.52.335(f), which is proposed to be
deleted in Section 14 of SB 186.
If all those things happened, so that the disposition
was not made public and the personnel board report
contained recommendation that it be made public, that
is when an interested person could go to superior
court. They can't just go to superior court because
they feel like it. The personnel board first has to
decide that this matter should be made public. Then
they go to court and the court could order that all of
it or parts of it be made public if they determine
that the several things that have to be established
were. One of those things is "the release of
information will not infringe on protected rights",
"the matter concerns public interest", and "the
resolution was clearly contrary to the requirements of
this chapter", those kinds of things.
As a matter of practice, when we resolve a complaint
through a stipulation, we require that the stipulation
be made public so that Alaskans know the law is being
enforced and it gives guidance to state employees and
to designated ethics supervisors as to what sort of
conduct will result in an ethics complaint and
enforcement of the law. We try to make all our
resolutions of these public.
8:25:42 PM
MS. RICHEY summarized the only change that SB 186 would make to
AS 39.52.335 is to end the process when there is a dismissal
that is not public then that would end it. The personnel board
could not recommend that it be made public and the trigger for
the superior court to make something public would be removed.
SENATOR FRENCH asked Ms. Richey how the personnel board could
come to a wrong conclusion about the need to publish a
dismissal.
MS. RICHEY reiterated there is no history of anybody using AS
39.52.335.
8:27:22 PM
MS. RICHEY stated confidence in the handling of the cases. Ones
that have substance are made public.
8:29:02 PM
SENATOR FRENCH relayed his belief the superior court is a safety
valve for if a cover up is happening. He moved Amendment 4. Page
6, line 25 reinsert "superior court makes the matter public
under (h) of this section."
CHAIR SEEKINS objected. He advised Senator French his motion
would also have to repeal the repealer.
SENATOR FRENCH added to repeal the repealer and any further
adjustments for statute conformity. The idea behind Amendment 4
is to maintain the safety valve of the superior court.
Roll call proved Amendment 4 failed with Senators Huggins,
Therriault and Chair Seekins dissenting.
SENATOR FRENCH noted a section deleted on Pages 6 and 7. He
asked Ms. Richey whether that section applied to personnel board
issues.
MS. RICHEY said it all related to AS 39.52.355 and disposition
of complaints by the attorney general's office.
8:33:37 PM
SENATOR FRENCH stated for the record he was positive that a
citizen of the State of Alaska could not be bound to
confidentiality as Section 15 states.
CHAIR SEEKINS responded what triggers the violation is somewhat
retrospective in that a person has filed the complaint. What he
is trying to avoid is someone using ethics violation to harm
someone else. SB 186 is an attempt to give somebody the
opportunity for a deliberative body to review a complaint before
that person is tried by the press.
8:38:00 PM
SENATOR FRENCH said he believed the press wasn't generally that
interested. The bill is covering a range of violations that are
already covered by liable and slander laws. He moved Amendment
5. Page 7, line 18 strike the material "complainant" and remove
the rest of the material on lines 20-27 that is bold and
underlined.
SENATOR THERRIAULT objected.
8:40:54 PM
Roll call proved Amendment 5 failed with Senators Huggins,
Therriault and Chair Seekins dissenting.
MS. RICHEY commented lines 24-27 are about public records cases.
SENATOR FRENCH asked the reason for the word changes in Section
19 sub-paragraph (B) (conjugal vs. sexual).
CHAIR SEEKINS stated he was trying to reflect a marriage
relationship better.
MS. RICHEY agreed. She said the words "conjugal" and "cohabit"
indicate living in a marital relationship.
8:42:42 PM
SENATOR FRENCH proposed Amendment 6. Add a definition for
"official action", which would read, "Official action means
performance of any duties in the course and scope of a public
official's employment including review, advice, participation,
assistance, or other kind of involvement regarding a matter such
as a recommendation, decision, approval, disapproval, vote, or
other similar action including inaction by a public officer."
CHAIR SEEKINS objected.
8:44:23 PM
Roll call proved Amendment 6 failed with Senators Huggins,
Therriault, and Chair Seekins dissenting.
8:46:12 PM
MR. MERLE THOMPSON testified in opposition of SB 186. He stated
public trust is the reason ethics laws are written. SB 186 seems
more concerned with groundless complaints, ruined reputations
and financial restriction. It suggests need for more secrecy and
punishes the complainant more so than the actual violator.
People in public office are supposed to be held to higher
standards.
8:48:35 PM
MR. THOMPSON continued the class A misdemeanor was applied to
members of the committee, not to the general public. He claimed
SB 186 was taking away from the system of government and in
violation of the First Amendment of the U.S. Constitution.
8:52:47 PM
CHAIR SEEKINS alleged there was nothing in SB 186 that would
fine a whistleblower.
MR. THOMPSON asked whether he would be penalized in the case of
if he intended to file a complaint against the attorney general
and advised the press of his intentions.
CHAIR SEEKINS said it depends on whether he filed that
complaint.
8:55:24 PM
CHAIR SEEKINS closed public testimony.
SENATOR FRENCH suggested there would have been more citizens who
would have testified had the hearing been better advertised. He
said the public is unaware that the Senate Judiciary Standing
Committee is hearing SB 186 today.
8:57:01 PM
CHAIR SEEKINS stated SB 186 has been on the daily schedule since
last Friday. People will have opportunity to testify at the
House hearings.
SENATOR THERRIAULT moved CSSB 186(JUD) from committee with
individual recommendations and attached fiscal note(s).
SENATOR FRENCH objected.
Roll call proved Senator French's objection failed. CSSB
186(JUD) passed out of committee with Senator French dissenting.
SB 187-LEGISLATIVE ETHICS/MEETINGS
9:00:04 PM
CHAIR SEEKINS announced SB 187 to be up for consideration. The
committee is working off Version \Y.
9:01:37 PM
SENATOR THERRIAULT moved Amendment 1. Adopt similar language in
SB 186 with regard to the $5,000 fine. Replace the language on
Page 1, line 10. Hearing no objections, the motion carried.
9:03:51 PM
SENATOR FRENCH asked Chair Seekins whether the underlined
language on Page 1, line 14 and Page 2, lines 1 and 2 was
current law.
CHAIR SEEKINS:
My understanding, Senator French, is that the
constitutional right and responsibility of the
Legislature to adopt it's own uniform rules cannot be
subject to statute. It is a constitutional provision
that has been given to the Legislature and only to the
Legislature and a statute adopted by a Legislature
that would affect the uniform rules would only be in
effect for the term of that Legislature because no
future Legislature can be bound by the current
Legislature. Uniform rules have to be adopted by each
Legislature on its opening day. This is only meant to
clarify the statute. Current law cannot trump uniform
rules.
9:06:14 PM
SENATOR FRENCH asked wouldn't the statute be same thing as an
amendment to the uniform rule.
CHAIR SEEKINS responded yes but the uniform rules say that the
uniform rules can be changed by majority of the Legislature at
any time. So that statute would only be in existence as an
amendment to the uniform rules until the legislative body
decided to change it.
SENATOR THERRIAULT read from Mason's Manual. Section 13:
The power of a house of a legislature to determine its
rules of proceedings is a continuous power. It can
always be exercised by the house and is absolute and
beyond the challenge of any body or tribunal if the
rule does not ignore constitutional restraints or
violate fundamental rights. Rules of procedure passed
by one legislature or statutory provisions governing
the legislative process are not binding on a
subsequent legislature. Rules of procedure are always
in control of the majority of a deliberative body and
may be changed at any time by a majority vote.
9:11:02 PM
CHAIR SEEKINS said rules adopted by a state Legislature expire
with the convening of the subsequent Legislature. SB 187 is
trying to clarify it so that there is no conflict that has no
basis in law or under the uniform rules.
SENATOR FRENCH said the argument is sound, however statutes pass
for a reason. He expressed concern the bill would attempt to
supersede a statute by the application of uniform rules.
CHAIR SEEKINS:
Well, I think it's only a restatement of a truism and
I think that would be a great test case for someone to
bring. So far the state Supreme Court has commented
and the state supreme court basically says, Article 2,
Section 12, for example the Malone vs. Meekins case,
the supreme court has said, "We can think of few
actions which would be more intrusive into the
legislative process than for a court to function as a
sort of super parliamentarian to decide the varied and
often skewed points of parliamentary law which may be
raised in the course of the legislative day. Thus even
though the uniform rules may have been violated such
violation is solely the business of the legislature
and does not give rise to a justice-able claim."
If the Supreme Court can't intervene in the uniform
rules, and there's another rule, Senator, that is very
interesting and it says that for example Section 51,
"A public body cannot delegate its powers, duties or
responsibilities to any other person or groups,
including a committee of its own members. However, a
legislative body may delegate by rule such procedural
powers as appointment of members of standing, special
and conference committees as well as the power to
refer bills to committee to a constitutional presiding
officer who may or may not be a member of the body."
A statute that would delegate this responsibility to
others other than the member is a violation of the
rules. So there's the problem. It is constitutional
that we adopt our own rules and that when we adopt
those rules it requires that we are the ones who would
investigate violations and determine whether or not
they were. That's not meant to be argumentative,
punitive, or anything else but merely to clarify the
issue.
9:15:00 PM
SENATOR FRENCH moved Amendment 2. Delete the underlined and bold
language starting on Page 1, line 14 and ending on Page 2, line
2.
SENATOR THERRIAULT asked Senator French to clarify whether he
thought the language was true yet superfluous.
SENATOR FRENCH replied there could be a case where the public
passes a statute through an initiative process, which could
require that the uniform rules be changed by a super majority.
CHAIR SEEKINS:
It would violate the constitutional right of the
Legislature.
SENATOR FRENCH:
We don't exist to enforce our own rights. We exist to
serve the will of the public. I would say we should
bow before the will of the public.
CHAIR SEEKINS:
The Constitution very clearly says that is the
responsibility of the Legislature, to adopt its own
uniform rules.
SENATOR THERRIAULT:
Even through initiative, because of the separation of
powers issue, the people cannot pass a law to throw
more power to the court system or strip the
Legislature of power and throw it to the governor.
9:17:22 PM
Roll call proved Amendment 2 failed with Senators Huggins,
Therriault, and Chair Seekins dissenting.
CHAIR SEEKINS advised Section 3 addresses the open meetings
section. Section 4 concerns diversity.
SENATOR FRENCH asked the number of public members that are
currently employed by the state.
CHAIR SEEKINS said two.
SENATOR FRENCH asked the affect of this law on their membership.
CHAIR SEEKINS said nothing. They would have to come up for re-
confirmation and one would have to go.
SENATOR FRENCH stated whichever one comes up first would have
the advantage.
CHAIR SEEKINS said there are currently three lawyers and two
teachers. There is no current process for diversity.
9:21:44 PM
CHAIR SEEKINS explained Section 5 changes the structure of the
alternate member.
SENATOR FRENCH pointed out the weakness is a member may vote on
a matter without hearing any of the discussion. He suggested
tightening it so a member could only vote on matters they have
participated in.
SENATOR THERRIAULT asked Senator French why that should be
treated differently than how the Senate Judiciary Standing
Committee operates.
9:24:35 PM
SENATOR FRENCH answered the main reason is because the select
committee is only hearing complaints and they are highly fact
specific.
SENATOR THERRIAULT asked Senator French whether he has had
conversations with the chair of the commission about the impact.
SENATOR FRENCH said no. He also advised he may prepare an
amendment for the section.
SENATOR GUESS asked Chair Seekins to explain the idea behind the
last two sentences of Section 6.
CHAIR SEEKINS said except as provided in the chapter, an
advisory opinion is confidential.
9:27:30 PM
CHAIR SEEKINS explained Section 7 and Section 8 remove redundant
language on confidentiality. Section 9 relates to the committee
issuing a decision explaining the dismissal order.
9:30:18 PM
CHAIR SEEKINS held SB 187 in committee.
There being no further business to come before the committee,
Chair Seekins adjourned the meeting at 9:30:29 PM.
| Document Name | Date/Time | Subjects |
|---|