Legislature(2019 - 2020)GRUENBERG 120
03/07/2019 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s): Commissioner, Alaska Department of Fish and Game | |
| HB35 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 35 | TELECONFERENCED | |
HB 35-CONFLICT OF INTEREST: BD FISHERIES/GAME
10:40:11 AM
CHAIR STUTES announced that the final order of business would be
HOUSE BILL NO. 35, "An Act relating to participation in matters
before the Board of Fisheries and the Board of Game by the
members of the respective boards; and providing for an effective
date."
10:40:37 AM
REPRESENTATIVE EDGMON moved to adopt the proposed committee
substitute (CS), Version 31-LS0297\M, Bullard, 3/4/19, as the
working document.
CHAIR STUTES objected for purposes of discussion.
MATT GRUENING, Staff, Representative Louise Stutes, Alaska State
Legislature, on behalf of Representative Stutes, prime sponsor,
explained the changes to HB 35 under Version M. He said the
language in the original bill on page 3, lines 7-15, is deleted
under Version M and no new language was added. Previously the
bill had redefined "immediate family member" for the purposes of
these two boards. This definition was in the bill the last two
years and there was no opposition to that, and most people
seemed to be in support of the change. However, what the
sponsor is really trying to do with this bill is make it so that
members can deliberate but not vote and the sponsor didn't want
to make an exception for just these two boards. The sponsor
therefore chose to delete that language.
10:42:33 AM
REPRESENTATIVE KOPP asked whether Version M would allow members
of these boards with a conflict of interest to vote on issues
before the boards.
MR. GRUENING replied they would not be allowed to vote but would
be allowed to deliberate with the board. He explained that
under current practice when a conflict is declared, a member is
not allowed to deliberate and is required to step down from the
podium and sit in the audience until the issue is resolved. The
member is not allowed to offer input on the matter on the public
record and that is the issue. Version M would change it so that
a member [with a conflict] can deliberate but cannot vote.
10:43:18 AM
CHAIR STUTES requested the context of the bill be presented.
MR. GRUENING explained that HB 35 would change the way the Board
of Fisheries and the Board of Game function by allowing board
members to deliberate on subjects for which the members have
declared a conflict of personal or financial interest according
to AS 39.52, the Executive Branch Ethics Act. Members of these
boards are selected based on their knowledge and abilities in
the field of action of the board, with a view to providing
diversity in interests and points of view in membership. Title
39 prohibits a member from taking or withholding official action
in order to affect a matter in which the member has a conflict
of personal or financial interest. Official action is defined
as "Advice, participation or assistance", which could include a
recommendation, decision, approval or disapproval, vote, or
other similar action, including inaction, by the public officer.
Currently, when a conflict is determined, the board member must
step down and cannot participate. Under HB 35 [Version M] the
board member would be allowed to deliberate but not vote.
10:44:35 AM
CHAIR STUTES removed her objection to the motion to adopt the
proposed CS. There being no further objection, Version M was
before the committee.
10:44:58 AM
MR. GRUENING explained the bill would allow the conflicted
member to offer his/her input. The conflicted member would not
be allowed to be part of the vote of the board regarding whether
the member has a conflict of interest. Currently the decision
on a possible conflict of interest is up to the chair of the
board to decide. If board members disagree with the chair's
ruling, a majority of voting members including the chair decide
whether a conflict exists. The member whose possible conflict
is being voted upon, is not allowed to participate in the vote.
This process is consistent with current practice. This bill
would enable each of the boards to benefit from the knowledge
and points of view of all a board's members.
MR GRUENING pointed out that Board of Fisheries and Board of
Game issues tend to be complex and require knowledge-based
solutions. Board members often have family or direct financial
or personal interests which are tied to the complex knowledge
the member would need in order to understand the sometimes-
nuanced discussions of the board. Members are selected based on
their knowledge of the field. Their knowledge would benefit the
board discussions and be on the record even if they have a
personal conflict of interest, but they should not be allowed to
vote on an issue if a conflict exists.
10:46:39 AM
MR. GRUENING said a concern regarding how the process is working
with these boards is that off-the-record discussions are
occurring between board members. The off-the-record discussions
are not part of the public record; the proposed legislation
would enable those discussions to occur on the record. He said,
"As a life-long commercial fisherman, I can't tell you how many
times I have heard or seen really extremely qualified candidates
say they don't want to put their name in for consideration
because they know they would be conflicted out of a lot of the
proposals of which they have knowledge on." The proposed
legislation would allow the member with the conflict of interest
to impart his/her knowledge before recusing him/herself for the
vote. This should lead to more informed decisions, stronger
resource management statewide, and align the process with intent
regarding boards benefitting from the members knowledge and
diversity of viewpoints. Mr. Gruening stated that Version M
would allow for board members of the Board of Game and the Board
of Fisheries to deliberate if they have a conflict of interest,
but they could not vote on the subject.
MR. GRUENING walked through the changes in Version M. He drew
attention to the language on page 1, line 12, which states,
"except as provided in AS 39.52.220(c)". He stated that this is
said again on page 2, lines 25-26, and that section is created
on Section 3 of the bill, which basically says that for the
Board of Fisheries and the Board of Game only, board members are
allowed to deliberate but not vote. The only real change to
statute is in Section 3 and the other two changes are just
references to the section that is created.
10:49:37 AM
REPRESENTATIVE VANCE asked what course of action is [currently]
available if the member does not recuse him/herself or cite a
conflict of interest but others feel that there is a conflict.
MR. GRUENING replied that under AS. 39.52 there is a process for
complaints to be filed with the Attorney General. He deferred
to [Assistant Attorney General] Bradley Meyen for a more in-
depth explanation.
10:50:42 AM
BRADLEY MEYEN, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Anchorage), Department of Law
(DOL), responded to Representative Vance's question. He stated
that two provisions could apply: AS 39.52.230 for reporting
violations and AS 39.52.310 for complaints. He confirmed it
does go through an Attorney General process. While he does
Board of Fisheries issues, there is a separate section that
deals with appeals of ethics. He said a process is outlined,
and it is rather detailed.
10:51:27 AM
REPRESENTATIVE VANCE referred to Section 3 of HB 35, regarding
"financial interest relating to the involvement of the member".
She noted that a similar bill, HB 44, cites a minimum dollar
amount. She asked whether that issue had been considered under
HB 35 as a threshold for a conflict to be declared.
MR. GRUENING answered that the Executive Branch Ethics Act
states less than $5,000 is considered insignificant, while
anything $5,000 or above would be considered significant. He
offered his understanding that AS 39.52.120(1)(d) provides that
a stock or ownership interest in a business is presumed
insignificant if the value or stock of other ownership interest,
including an option to purchase an ownership interest, is less
the $5,000.
REPRESENTATIVE VANCE said she brings this issue up because
different bills have different thresholds for financial
conflicts of interest. She asked whether Mr. Gruening knows why
the inconsistency exists.
MR. GRUENING replied he was not sure of the legislative intent
regarding the financial differences.
10:53:34 AM
REPRESENTATIVE KOPP drew attention to the language in Version M
[beginning on page 2, line 31, through page 3, line 4], which
states:
(c) If a member of the Board of Fisheries or the Board
of Game discloses a personal or financial interest
relating to the involvement of the member, or an
immediate family member of that member, in a business
or organization relating to fish or game resources,
the member is not disqualified from deliberating or
participating in the matter.
REPRESENTATIVE KOPP said that makes sense because people with
industry, fishery, or game knowledge are serving on the boards.
He then referred to the continuing language [on page 3, lines 4-
6], of Version M, which read:
If the supervisor or a majority of the members of the
respective board determine that the member's further
involvement will result in a violation of AS 39.52.110
- 39.52.190, the board member may not vote on the
matter.
REPRESENTATIVE KOPP opined that that is good, because those
[statutes] address violations, including improper influence,
misuse of official public position outside of employment, and
improper representation. He continued:
What I'm having a hard time understanding is it sounds
like if it doesn't fall under that, we're still saying
they can't vote if they have a personal or financial
interest. Because you can have a personal or
financial interest but not be in violation ... per se
of how the statute says that that arrives to a misuse.
REPRESENTATIVE KOPP said the legislature tries to ensure the
board is balanced so that the voices are balanced on the board
and to ensure balanced outcomes. He questioned whether taking
away the ability to vote would throw the balance of the board.
10:57:26 AM
MR. GRUENING responded that, currently, board members with a
conflict of interest cannot vote. The language regarding
"further involvement will result in a violation" simply
describes the process that currently takes place. The proposed
change would allow a conflicted board member to deliberate. The
voting balance of the board was considered, but there was
concern regarding the possibility of a member abusing the system
for financial gain. The sponsor and community felt like
allowing a conflicted member to vote was a step too far.
10:58:57 AM
REPRESENTATIVE PRUITT asked, hy would we do this with these
two boards and not others?
MR. GRUENING answered that he was only aware of this problem
with the two boards. User groups have brought this specific
issue forward since changes/revisions to the Ethics Act in 1988.
There was concern that in the attempt to fix the Board of
Fisheries and Board of Game, similar changes to other boards may
result in unforeseen repercussions.
CHAIR STUTES noted that all the boards and commissions are
different. The Board of Fisheries and Board of Game are some of
the few allocative boards.
MR. GRUENING added there are professional boards that have more
members to cover the knowledge gaps if one of the members had a
conflict of interest. The Board of Fisheries and the Board of
Game only a single member may have knowledge of the subject
being discussed.
11:01:37 AM
REPRESENTATIVE PRUITT discussed his concern that if HB 35 were
to pass, other boards and commissions could come forward asking
for similar regulation.
MR. GRUENING said he doesn't foresee the mentioned changes
occurring but agreed it would be possible.
REPRESENTATIVE PRUITT said it makes reasonable sense to allow a
[conflicted] board member to participate in discussion share
expertise. He said his real concern is that it appears that
currently the conversations are occurring "behind the scenes"
and board members may not only bring their expertise to the
conversations but might be advocating for something that
personally benefits them. He suggested adding language to the
bill that would not allow a board member to advocate publicly or
privately for something that would benefit him/her.
MR. GRUENING stated he thought the Representative Pruitt has a
fair point and he would look to the will of the chair and the
committee regarding whether that is a change they wish to
consider.
11:04:19 AM
REPRESENTATIVE VANCE voiced her concerns about the duty to
create consistency within the boards. She suggested that the
committee investigate what could be done to preemptively do what
is right for the public before problems arise. She explained
that was her reason for bringing up the dollar amount
differences for conflict of interests as a legislator versus a
board. She said her concern is that the public would not want
to have to look up all the differences between the government
entities regarding the various standards for conflicts of
interest. She expressed her desire to keep in mind the other
boards and commissions and their future concerns.
11:06:32 AM
CHAIR STUTES shared with the committee that HB 35 is the result
of requests by user groups. She explained that it is a
difficult situation when someone is on the board who is unable
to share his or her expertise. Through the years this
legislation has been worked on, there have not been any other
reports from boards or commission that had similar problems.
MR. GRUENING noted he has two additional letters for the
legislators packets: One from the Resident Hunters of Alaska,
in opposition, and the other from the United Southeast
Gillnetters Association in support.
11:07:51 AM
CHAIR STUTES stated the bill is one she has been working on with
the United Fishermen of Alaska for many years. She said she
believes the bill will lead to more informed decisions, a higher
quality of applicant, and improved public process and
transparency for both boards.
[HB 35 was held over.]